Allahabad High Court
Ram Autar vs State Of U.P. on 20 December, 2012
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Criminal Appeal No. 3428 of 2000
Ram Autar s/o Babu Ram,
r/o village Rudhaury, P.S. Fatehganj East, District Bareilly.
........................Appellant
versus
State of U.P.
.........................Respondent
Counsel for the appellant : Sri Rajeev Gupta and Sri Avdhesh Srivastava
Counsel for the Respondent: Sri Ram Yash Pandey, AGA for the State.
Hon'ble Rakesh Tiwari,J.
Hon'ble Anil Kumar Sharma,J.
(By Justice Anil Kumar Sharma)
Challenge in this appeal is to the judgment and order dated 23.10.2000 passed by Additional District and Sessions Judge, IVth Bareilly in S.T. No. 611/1999, whereby the appellant has been found guilty for the offence punishable under section 302 IPC and has been sentenced to undergo imprisonment for life.
2. Succinctly stated the facts of the case are that on 08.12.2008 at 6.45 P.M. complainant Virendra Kumar s/o Roop Lal, r/o village Radhauli Kalan, Police Station Fatehganj Purvi, District Bareilly stating that his co-villager Ram Autar s/o Babu Ram Derji resides in the village along with wife and two children. His mother and elder brother reside in Shahjahanpur. Today at about 5.15 P.M. Ram Autar has killed his wife Smt. Seema and two sons Pancholi aged about 8 years and younger son Bijendra aged about 5 years on account of some issue and after closing the door has left the house with his blood smeared hands. He along with Ramvir, Surendra Prasad, Sripal and Omkar and other villagers have seen the accused. He was chased to Shivnager but could not be apprehended. On the basis of this report case at crime no. 282/98 was registered, investigation whereof was taken up by S.O. Padam Singh himself. He interrogated the complainant and witnesses Ramvir, Surendra Prasad, Sripal and Omkar. On 09.02.1998 he inspected the spot prepared site plan and recovered piece of brick, blood stained knife (Chhuri), simple and plain earth from the spot in the presence of witnesses through memo Ex. Ka-8. The inquest on the dead bodies of all the three deceased were prepared on 09.12.1998 from 8.00 a.m. onwards and along with usual papers they were sent for post mortem examination. Dr. S. C. Sinha conducted autopsy upon the corpses of the deceased on 09.12.1998 and has noted in his autopsy note as under:
(1). Pancholi - aged about 8 years
Average built body, rigor mortis present in upper and lower limbs, both eyes and mouth closed. Blood present on whole of face and head.
Ante-mortem injuries
Multiple lacerated wound in an area 10 cm x 8 cm on the face and forehead measuring 6 cm x 3 cm bone deep and smaller 1 cm x 1/2 cm x bone deep.
Underneath frontal (right) orbital and nasal bones fractured. Membranes and brain lacerated, clotted blood present, right eye ball lacerated.
In the opinion of the doctor the deceased suffered death about one day before due to coma as a result of ante mortem head injury.
(2). Smt. Seema - aged about 27 years
Average built body, rigor mortis present in upper and lower limbs, both eyes and mouth closed. Blood present on outer face and body at places.
Ante-mortem injuries
(i) Incised wound 6 cm x 1/2 cm x muscle deep on left side head, 6 cm above left ear.
(ii) Incised wound 2 cm x 1/2 cm x muscle deep on left temporal region.
(iii) Lacerated wound 7 cm x 4 cm x bone deep on middle of forehead, underneath, frontal bone fractured, membranes lacerated, brain lacerated, clotted blood present.
(iv) Lacerated wound 3 cm x 1 ½ cm x bone deep on middle of nose underneath nosal bone fractured.
(v) Lacerated wound 4 cm x 1 cm x muscle deep over upper lip just below nose & incisor teeth of upper jaw are loose.
In the opinion of the doctor the deceased suffered death about one day before due to coma as a result of ante mortem head injuries.
(3). Bijendra - aged about 5 years
Average built body, rigor mortis present in upper and lower limbs, both eyes and mouth closed. Blood present on whole of face and head.
Ante-mortem injuries
(i) Lacerated wound 8 cm x 6 cm x bone deep over middle of forehead and nose underneath nasal and frontal bones fractured. Clotted blood present.
(ii) Incised wound 2 cm x 1 cm x muscle deep on the right side face just lateral to lower eyelid.
(iii) Incised wound 1 cm x 1/2 cm x muscle deep on right temporal region.
(iv) Incised wound 1 cm x ½ cm x muscle deep over right eye brow.
(v) Lacerated wound 1 cm x 1 cm x muscle deep on left temporal region.
(vi) Contusion 8 cm x 6 cm on left side face and temporal region.
In the opinion of the doctor the deceased suffered death about one day before due to coma as a result of ante mortem head injury.
3. Accused Ram Autar was arrested on 13.12.1998 and at his instance Investigating Officer recovered his blood stained short and vest in presence of witnesses Ram Sewak and Kalyan through memo Ex. Ka-29. Thereafter through statement of witnesses Peshkar and Ram Kumar the complicity of accused Smt. Kamla was revealed and she was arrested on 21.12.1998. The case property was sent for examination in Forensic Science Laboratory and after conclusion of the investigation charge sheet was submitted against accused-appellants and his mother Smt. Kamla.
4. After committal of the case to the Court of Session charge for the offence punishable under section 302 IPC was framed against accused Ram Autar while Smt. Kamla was charged under section 120B IPC.
5. In order to prove the charges, the prosecution examined complainant Virendra Kumar as PW-1, Ramvir PW-2, Dr. S.C. Sinha PW-3, S.I. Padam Singh PW-4 and S.I. Ram Sewak PW-5.
6. In their separate statements under section 313 Cr.P.C. the accused persons again denied the entire prosecution story. Accused Ram Autar has stated that witnesses have falsely deposed against him on account of party bandi in order to grab his land. However, the accused persons did not adduce any evidence in their defence.
7. After hearing the parties counsel the learned Additional Sessions Judge through impugned judgment and order had convicted the accused appellant Ram Autar as indicated in para-1 of the judgment. However, Smt. Kamla was acquitted.
8. We have heard learned counsel for the appellant and learned AGA for the State and perused the original record of the case carefully.
9. Admittedly, there is no eye witness of the incident. The accused-appellant has been charged for committing murder of his wife and two sons, one of them Pancholi was borne by deceased Seema with her former husband Vishnu Avtar who was real brother of the appellant. The entire case of the prosecution rests on circumstantial evidence. It is not res integra that where the case of the prosecution is based entirely on circumstantial evidence. The facts alleged must be well proved and taking together which form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. In order to press reliance on circumstantial evidence it must satisfy the following tests:
(1) Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.
(2) Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused.
(3) The circumstances, taken cumulatively should form a chain so complete that there is no escape from conclusion that within all human probability the crime was committed by the accused and none else.
(4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence - in other words, the circumstances should exclude every possible hypothesis except the one to be proved.
10. In the instant case the incident had taken place inside the house of the accused and dead body of all the three deceased were seen after the incident by PW-1 and PW-2, ere that they had seen the accused coming out from his house hurriedly and his both hands were smeared with blood. He was also carrying the polythene. After seeing the dead bodies the aforesaid witnesses tried in vain to chase the accused but he could not be apprehended. No report of the incident was lodged by the accused as to how and in what circumstances his three family members have suffered homicidal death inside his house. The accused could be apprehended by police on 13.12.1998 and on his pointing out the police recovered his blood stained vests and Neker. These articles along with others were sent for scientific examination to Forensic Science Laboratory, Agra (FSL) who in their report Ex. Ka-32 have found human blood of group 'B' on the piece of brick, Dhoti, Petticoat, Blouse of deceased Smt. Seema and Bushirt, Baniyan, Swater, Kaccha of deceased Bijendra and vests & underwear of the accused Ram Avtar.
The circumstances appearing against the accused in the case are:
On 08.12.1998 at about 5.15 P.M. he was seen by PW-1 and PW-2 come out from his house with polythene bag and his both hands were smeared with blood;
That dead bodies of his wife and sons Bijendra and Pancholi were found soon after the incident inside the house of the accused;
That PW-1 and PW-2 chased the accused but he could not be apprehended;
That Investigating Officer has recovered blood stained piece of brick, knife (Chhuri), sample and blood stained earth from the house of the accused;
That the accused was arrested on 13.12.1998 and in interrogation he allegedly confessed his guilt and got his blood stained vests and Nekar recovered to the police;
That FSL in its report Ex. Ka-32 had found human blood 'B' group on the piece of brick, Dhoti, Petticoat, Blouse of deceased Smt. Seema and Bushirt, Baniyan, Sweater, Kachcha of deceased Bijendra and vests & underwear of the accused Ram Avtar.
11. The report of the incident was lodged by complainant Bijendra Kumar PW-1, who is next door neighbour of the accused on 08.12.1998 at 6.45 P.M. The inquests on the cadaver of the deceased were performed on 09.12.1998 from 8.00 A.M. and the autopsy was conducted by Dr. Sinha PW-3 the same day from 3.20 P.M. onwards. There is no dispute that all the three deceased suffered homicidal death in the afternoon of 08.12.1998 inside the house of the accused. The accused has not given any explanation worth the name about the incident.
12. Learned counsel for the appellant has vehemently argued the following points before us:
(i) That the circumstances appearing against the accused in evidence were not put to him in his statement under section 313 Cr.P.C. so they cannot be relied upon against him and he has been materially prejudiced.
(ii) There is no motive for the accused to eliminate all his family members.
(iii) That the evidence of PW-1 and PW-2 suffers from material discrepancy.
(iv) That accused has been falsely implicated in the case by PW-1 as he wanted to usurp his property.
13. Per contra learned AGA has submitted that mere not putting certain circumstances in the statement of accused under section 313 Cr.P.C. would not affect the merit of the case unless the accused is able to show that he has been materially prejudiced in his defence. He has further submitted that PW-1 has no axe to grind with the accused. He does not belong to the family of the accused and if at all he wanted to grab his property he could have killed the deceased instead of his wife and two minor children. He has further submitted that the statement of PW-1 and PW-2 are quite natural and they are independent witnesses having no animus with the accused.
14. Firstly, we would take up the first argument of the learned counsel for the appellant regarding alleged improper examination of the accused under section 313 Cr.P.C. On perusal of the statement of accused Ram Avtar recorded by the learned Additional Sessions Judge under section 313 Cr.P.C. we find that it is very sketchy and none of the circumstances appearing in evidence against the accused has been put to him. The entire statement of accused Ram Avtar recorded by the trial court under section 313 Cr.P.C. is reproduced as under:
"Ck;ku /kkjk 313 na0 iz0 la0
uke& jke vorkj Jh ckcw jke vk;q 30 o"kZ is'kk&[ksrh fuoklh [krkSth dyka Fkkuk& Qrsgxat] ftyk cjsyhA
iz'u %& vfHk;kstu i{k dk dFku gS fd fnukad 8&12&98 dks le; 5 lok ikap cts 'kke cgn xzke j/kkSyh Fkkuk Qrsgxat (iwohZ) ftyk cjsyh esa vius lk'k; viuh iRuh Jherh lhek o vius nks cPps iUpksyh mez 8 lky o fctsUnz mez djhc 5 lky dh gR;k dh bl ckjs esa vkidks D;k dguk gSA
mRrj %& xyr gSA
iz'u %& vfHk;kstu i{k dk dFku gS fd bl ?kVuk dh rgjhj ohjsUnz dqekj us izn'kZ d&1 fy[kdj Fkkus ij nh ftlds vk/kkj ij fpd fjiksVZ izn'kZ d&5 fdrk dh xbZ vkSj eqdnek iathd`r gqvk bl ckjs esa D;k dguk gSA
mRrj%& eq>s tkudkjh ugha gSA
iz'u %& vfHk;kstu i{k dk dFku gS fd bl dsl dh foospuk iqfyl Fkkuk Qrsgxat iwohZ }kjk fd;k x;kA foospukf/kdkjh us uD'kk utjh cuk;k] xokgku ds c;ku fy,] e`rd lhek iPpksyh o fotsUnz ds 'koksa ds iapk;rukes o muls lEcfU/kr dkxtkr rS;kj fd;s] 'koksa dk iksLV ekVZe djkus ds ckn vkids fo:) foospuk lekIr gksus ij vkjksi i= izsf"kr fd;k bl ckjs esa D;k dguk gSA
mRrj %& xyr tkap dh xbZA
iz'u%& vkius xokgku ih0MCyw0 1 ohjsUnz dqekj] ih0MCyw0 2 jkeohj] ih0MCyw0 3 Mk0 ,l0 lh0 flUgk] ih0MCyw0 4 ,l0 vkbZ0 ine flag] ih0MCyw0 5 jke lsod ds c;kukr lqusA ;g xokgku vkids fo:) xokgh D;ksa nsrs gSa bl ckjs esa D;k dguk gSA
mRrj%& xokgku xyr o ikVhZ cUnh ls] esjh tehu gMius ds fy, xyr xokgh ns jgs gSaA
iz'u%& vkids fo:) eqdnek D;ksa pykA
mRrj%& ikVhZ cUnh o jaft'k lsA
iz'u%& D;k vkidks dqN vkSj dguk gSA
mRrj%& th ughaA"
15. Object of examination under section 313 Cr.P.C. is to establish a direct communication between the court and the accused. If any fact or circumstance is important against accused and conviction is intended to be based thereon. It is imperative that the accused should be questioned about the matter and be given an opportunity of explaining it. It is imperative that each and every question containing the circumstances appearing in evidence against the accused must be put to him separately and their answers also recorded separately. The compliance of section 313 Cr.P.C. is not a mere formality like a ritual. The trial court had begun the questions right first question put to the accused detailing incomplete facts about alleged killing of the deceased by the accused. In this question the place of incident has not been mentioned, the weapon of offence used in the crime and recovered from the spot have also not been put to the accused. The alleged motive has also not been asked from the accused. Other questions are very general in nature. Arrest of the accused and recovery of his blood stained apparels have also not asked from him. The contents of the report of FSL have also not been listed in the questions put to the accused. A duty is cast upon the courts to question the accused properly and fairly so that it is brought home to the accused in clear words the exact case. The accused will have to meet and thereby an opportunity is given to him to explain any such point. The circumstances of abscondance of the accused has also not put to him in his statement. In the case of Basavaraj R. Patil vs. State of Karnataka, AIR 2000 SC 3214 the Apex Court has held that where the evidence against the accused consist of circumstantial evidence only, it is of utmost importance that the various circumstances which clinch the issue against him should be put to him and an explanation called for from him. It was further observed that circumstances about which the accused was not asked to explain cannot be used against him. The object of Section 313 Cr.P.C. is to establish a direct communication between the Court and the accused. If a fact or circumstance in evidence is important against the an accused and conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. In the case of Naval Kishore Vs. State of Bihar (2004) 7 SCC 502, the Apex Court has observed that various items of evidence which have been produced by the prosecution should be put to the accused in the form of question and he should be given opportunity to give his explanation. Such an opportunity given to the accused is part of a fair trial and if it is done in slipshod manner, it may result in imperfect appreciation of evidence. In the case of Nirmal Pasi Vs. State of Bihar 2003 (1) Crimes 244 (246) (SC), the Hon'ble Supreme Court has held that incriminating evidence when not put to the accused in examination under section 313 Cr.P.C., has to be eschewed from consideration. Thus, we find that improper and illegal examination of accused u/s 313 Cr.P.C. has materially prejudiced them in their defence and the learned Sessions Judge has grossly erred in taking into consideration those circumstances for convicting the accused persons which were not confronted to each of them in statements u/s 313 Cr.P.C. The trial court has grossly erred in not properly questioning the accused under section 313 Cr.P.C. by placing all circumstances appearing in the case against him. However, this is not the end of the matter after considering the entire evidence on record we find that it is a mistake of the court which has resulted in improper examination of the accused under section 313 Cr.P.C. and the prosecution has nothing to do with it. The maxim "Actus Curiae Neminem Gravabit" - An act of the Court shall prejudice no man - is founded upon justice and good sense and affords a safe and certain guide for the administration of the law, squarely apply to the facts of the instant case. Thus, the interest of justice require that the statement of the accused detailing and putting all the circumstances appearing in evidence against him be recorded again by the trial court.
16. Considering the entire facts and circumstances of the case and for foregoing reasons, we are not inclined to acquit the accused merely on account of his improper examination under section 313 Cr.P.C. Since remand of the case for recording fresh statement of the accused under section 313 Cr.P.C. is imperative, so we refrain from giving any finding on any other argument advanced before us on behalf of the appellant as it may prejudice any of the parties.
17. In view of above, we find that the learned trial court has erred in placing reliance on the circumstances which were not put to the accused in his statement under section 313 Cr.P.C. so as to enable him to explain the same and adduce any evidence in defence, if any. The appeal his allowed. The impugned judgment and order are set aside. The case is remanded back to the trial court with a direction to record the statement of the accused under section 313 Cr.P.C. in the light of our observations made in the body of the judgment above and thereafter giving an opportunity to the accused to adduce evidence in defence, if any, hear arguments and deliver judgment after hearing the parties counsel. Considering the nature of the case, we directed the learned Sessions Judge, Bareilly to take this case on the file of his own Court. The accused is in prison and he would be summoned him from jail to proceed in accordance with law and deliver judgment within three months.
18. Before parting with the case, we painfully observe that in number of major criminal appeals it is found that the concerned Sessions Judges are not following the mandate of Section 313 Cr.P.C. in letter and spirit. They formulate questions in a very casual manner, without going through the nature of evidence led by the prosecution in support of the charge(s), thereby frustrating the very object of the provision of Section 313 Cr.P.C. causing irreparable injury to the accused and the victims as well. In the interest of justice, we deem it just and proper that this judgment be circulated among all criminal Courts in the State and direct the Registrar General to place it before Hon'ble Chief Justice for obtaining necessary directions from His Lordship.
19. Let a certified copy of the judgment be sent to the trial court immediately for ensuring compliance.
(Anil Kumar Sharma, J) (Rakesh Tiwari, J)
December 20, 2012
Imroz/-
