Rakesh Kumar vs State Of U.P. And 2 Others
2014 Latest Caselaw 9726 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 36
 

 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 4693 of 2014
 

 
Appellant :- Rakesh Kumar
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- Puneet Srivastava
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

The complainant Rakesh Kumar has preferred this Criminal Appeal under section 372 Cr.P.C. against the judgment and order dated 29.8.2014 passed by the Additional Sessions Judge, Court No. 7, Aligarh, in Sessions Trial No. 1230 of 2010 (State Vs. Shankar Lal and another) arising out of Case Crime No.439 of 2010, under Section 304 I.P.C., Police Station Sasani Gate, District Aligarh, whereby Learned trial court has acquitted the respondent nos. 2 and 3.

We have heard learned counsel for the appellant and learned AGA on the point of admission and have gone through the impugned judgment.

The prosecution story in brief is that the informant/ appellant Rakesh Kumar lodged a written report on 30.7.2010 at Police Station Sasani Gate, District Aligarh, mentioning therein that his father-in-law had died on 19.7.2010. After some days when he got information about this death, he and his wife Pushpa Devi, went to his place. There was a strong rumour among the people living there that his father-in-law had been murdered by his own son and grandson. When the informant talked about this rumour with his brother-in-law i.e. the accused Shanker Lal, he said nothing and kept silent. On 29.7.2010 at about 8.00' Clock Shanker Lal and his son Ravi (respondent nos. 2 and 3) came to his house. At that time the informant, his wife and son Gaurav were present inside the house. Before all of them Shanker Lal and Ravi confessed their guilt by stating that since Bapu (the deceased) was not providing the household expenses from the income accruing from agriculture, house and buffaloes' milk, they were feeling it difficult to maintain their family having seven members including three young girls of marriageable age, hence they made a plan to kill 'Bapu'. At about 11.00 P.M. they threatened the deceased to kill him but when he did not pay any attention towards their threat they tried to overawe him by putting a noose made of rope in his neck. The deceased, out of anger, started pulling the noose himself and during this rift and scuffle his neck got strangulated and he felt unconscious. Due to fear both the accused persons hanged the deceased with roof, after that they locked the door from outside and left the house. On the next day at about 10.00 A.M. they returned to their home and informed the police at about 2.00 P.M. After confessing their guilt, they requested the informant to save them from police. On this the informant said that "rqeyksxksa us vius firk dks ekjk gS] tSlk djk gS oSlk gh Hkjks] oks dqN ugha djsaxsaA" The informant and his wife kept on thinking and consulting during whole night and in the morning the informant went to police station and lodged the first information report.

On the basis of the aforesaid written report the police registered a criminal case under section 304 of I.P.C. against Shanker Lal and his son Ravi. The matter was investigated and on conclusion of investigation the police submitted charge sheet against both the accused persons. Both of them were tried in the Sessions Court where charge under Section 304 read with Section 34 of I.P.C. was framed against them and the trial commenced. The prosecution in order to prove its case produced the informant Rakesh Kumar as PW1, and his wife Pushpa Devi (who is sister of the accused Shanker Lal) as PW2. The son of the informant was examined as PW3. Apart from only these three witnesses of fact, no other witness, either of fact or of formal character was produced by the prosecution. As both the accused persons had admitted the genuineness of all the documentary evidence led by the prosecution, except the written report (exhibit Ka 1) (proved by PW-1) no formal witness was produced by the prosecution.

After conclusion of the prosecution evidence statements of both the accused persons under section 313 Cr.P.C. was recorded in which they pleaded their innocence and false implication due to some confusion and misunderstanding.

It is worth mentioning at the very outset, that all the three witnesses produced by the prosecution have turned hostile in this case and have not supported the prosecution story as alleged in the FIR.

PW1 Rakesh Kumar, who is the first informant, stated that hearing about the death of his father-in-law, he along with his wife and son had gone to his matrimonial home where he heard a rumour that his father-in-law has been killed by his son Shanker Lal and his grandson Ravi. He further stated about the extra judicial confession made by accused persons before him and his family members on 29.7.2010. Thus PW1 supported the prosecution case in his examination-in-chief but during his cross-examination he took a 'U' turn by stating that on 29.7.2010 neither the accused persons had come to his house nor they had made any confessional statement before him.

PW2 Smt. Pushpa Devi stated about her relationship with the accused Shanker Lal being her brother and accused Ravi being nephew. She did not support the prosecution story and turned hostile. She was cross-examined at length by the D.G.C. (Criminal) but nothing could be elicited to raise a doubt in her testimony. PW3 Gaurav also turned hostile and did not support the prosecution case. No other witness was produced by the prosecution.

Under these circumstances, the learned trial court found that there was no cogent and reliable evidence on record to convict the accused persons and accordingly; he acquitted both of them from the charges levelled against them.

The aforesaid judgment of acquittal has been assailed in the instant appeal on the following grounds:-

1. Learned trial court has not appreciated the evidence properly.

2. Learned trial court has not considered the fact that the accused persons had strong motive to commit the murder of their father.

3. The trial court has misread the evidence and material on record and in a very arbitrary manner has acquitted the accused persons.

4. The trial court has passed the judgment on the basis of surmises and conjectures.

After having heard learned counsel for the appellant and looking into the facts and circumstances of this case it appears that this case solely rests on the evidence of extra judicial confession. There is neither any eyewitness of the occurrence nor any other witness in this case to corroborate the prosecution case. Moreover, only one witness PW1 has supported the prosecution case regarding extra judicial confession and that too in his examination in chief only. During the course of cross- examination PW1 has taken a 'U' turn by stating that the accused persons never came to his house and never made any confessional statement before him. The other two witnesses wife and son of PW1 have from the very beginning have stated that the accused persons have not made any confessional statement before them.

It is a well-settled legal principle that the testimony of a witnesses, who has turned hostile should not be discarded as a whole and the courts should make effort to separate the grain of chaff. In the recent judgment of Rohtash Kumar Vs. State of Haryana, 2013 (3) RCR (Criminal) page 357, in para 19 the hon'ble Apex Court has reiterated the law with regard to evidentiary value of the statement of a witness turning hostile. According to Supreme Court the evidence of a prosecution witness can not be rejected in toto merely because he has turned hostile. His evidence cannot be treated as washed off the record altogether but the same can be accepted to the extent it supports the prosecution case, if found dependable upon a close scrutiny thereof.

Relying on this legal principle and taking into consideration the statement of PW1, deposed by him during his examination-in-chief, the only evidence, which is found against the accused persons in this case is their extra- judicial confession made before PW1.

So far as the evidentiary value of extra-judicial confession is concerned, in a catena of judgments, the Hon'ble Supreme has laid down the law that extra judicial confession is a very weak type of evidence and it cannot form the basis of conviction if uncorroborated. In the cases of Podyami Sukeda Vs. State of M.P. (2010)12 SCC 142 and in Ajay Singh Vs. State of Maharashtra (2007)12 SCC 341 the Hon'ble Supreme Court has observed as under:-

"Extra judicial confession can form the basis of conviction even without corroboration if there is no ambiguity about the import of the statement made by the accused. It is for the Court to judge the credibility of the "witness", capacity and thereafter to decide whether his or her evidence has to be accepted or not. If the court believes witnesses before whom the confession was voluntary, basing on such evidence, conviction can be founded."

In Baldeo Raj Vs. State of Haryana, AIR 1991 SC 37, it has been held by the Apex Court that the value of the evidence of extra-judicial confession depends upon the veracity of the witnesses to whom it is made. It is for the Court having regard the credibility of the witness to accept the evidence or not when the court believes the witnesses before whom the confession is made and is satisfied that the confession was voluntary, conviction can be founded on such evidence.

Now reverting back to the evidence of the present case, the testimony of PW1 does not inspire confidence and he does not appear dependable because he has stated entirely contradictory things in his examination-in-chief and during his cross-examination. Except PW1 no other witnesses has supported the prosecution case.

Considering the facts and circumstances of the case this appeal appears to be devoid of any merit and is liable to be dismissed at the admission stage.

Accordingly, the appeal is dismissed.

Order Date :- 9.12.2014

Pcl