Boby @ Sushil vs State Of U.P.
2015 Latest Caselaw 1937 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR	
 
Court No. - 36
 

 
Case :- CRIMINAL APPEAL No. - 2756 of 2011
 

 
Appellant :- Boby @ Sushil
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- B.L. Yadav, Ajay Kumar, Dharmendra Singhal, Mukhtar Alam
 
Counsel for Respondent :- Govt. Advocate
 

 
In Re: Bail Application
 
Hon'ble Amreshwar Pratap Sahi, J.

Hon'ble Pramod Kumar Srivastava, J.

(Delivered by Hon'ble P.K.Srivastava, J.)

1. This application for bail has been presented on behalf of the appellant Bobby @ Sushil who has been convicted vide judgment dated 08.04.2011 and punishment order dated 11.04.2011 by the Court of 13th Additional Sessions Judge, Saharanpur in joint trial of S.T. No. 705/ 2005 (State Vs. Boby @ Sushil) u/s 302 IPC and S.T. No. 706/ 2005 (State Vs. Boby @ Sushil) u/s 25/4 Arms Act relating to the police station Kotwali Dehat, Saharanpur; and punished for the charge u/s 302 IPC with imprisonment of life and Rs. 20,000/- as fine, and for the charge u/s 25 Arms Act with the rigorous imprisonment of one year and Rs. 5,000/- as fine.

2. The prosecution case in brief was that on 4.09.2005 at about 11.50 pm in the night, constable Navin Kumar and constable Naresh Kumar were going on the pathway of a canal, when they heard some noise and saw the accused Boby @ Sushil coming towards them with a knife in his hand. The constables stopped him and enquired, then accused Boby @ Sushil informed them in the presence of other persons that his brother Laxman, who had a criminal antecedent had altercations with him in the evening, so he had tied his hands and legs and killed him with this knife by slitting the neck. Then both constables went alongwith the witnesses and accused on the spot and found that in the sahan (land appurtenant) of the house of the accused dead body of Laxman was lying and blood was scattered there. Then they brought Boby @ Sushil with them, alongwith the knife, to the police station where they lodged FIR on 05.09.2005 at 2:00 a.m in the night, on the basis of which case crime no. 85/435 of 2005 under Section 302 IPC and case crime no. 86/436 of 2005 under Section 25 Arms Act was registered.

3.After investigation, police submitted a charge-sheet against the accused Boby @ Sushil for the offence u/s 302 IPC & u/s 25/4 Arms Act; on the basis of which, S.T. No. 705/ 2005 and S.T. No. 706/ 2005 were registered and their trial was held jointly. During trial the prosecution examined PW-1 Naresh Kumar, PW-2 Subhash, PW-3 Ramesh, PW-4 Navin Kumar, PW-5 constable Nagendra Singh, PW-6 Dr.Ved Prakash, PW-7 Harendra Mallik and PW-8 Inspector Vijay Kumar Yadav (I.O.).

4. After closure of evidence, the statement of the accused appellant under Section 313 Cr.P.C. was recorded in which he denied the allegations of charges and stated that a wrong charge-sheet has been submitted against him in which police personnel had given false evidence. He further stated that in the night of the charged incident, he had returned to his house after watching a movie, and found that the doors of his house were open and his brother was lying murdered, and theft had been committed in his house. At that time, a knife was there besides the body of the deceased. When he cried then his neighbors came there and called the police. The police had not lodged his report and registered a case against him. He is innocent. Accused did not adduce any defence evidence. After affording an opportunity of hearing, the trial court convicted and punished the accused appellant Boby @ Sushil in the trial as above, aggrieved by which he has preferred the present appeal, in which bail application has been moved.

5. Sri Dharmendra Singhal, learned counsel appeared on behalf of the appellant; and learned AGA appeared on behalf of the respondents-State. The original record has been received, which was perused.

6.Learned counsel for the appellant contended that the police had made concocted story and a false case was registered in this matter. In fact no knife or incriminating substance was recovered from the appellant. It was a case of theft in his house, in his absence, during which unknown miscreants had murdered his brother Laxman. When he returned home, he came to know about the incident and then police was called. He tried to lodge a report with the police, but same was not received, and a false case was registered against him. Learned counsel for the applicant further contended that the independent witnesses of facts, namely, PW-2 and PW-3 had not supported the prosecution case, and had supported the defence version. He had relied on the statement of PW-2 Subhash who had stated that in the night of the incident, appellant had returned by rickshaw after watching a movie and as he entered his house, he started weeping and crying then he (PW-2) and other persons had entered his house and found that house hold things were scattered and dead body of Laxman was lying besides which a knife was also there. He had also drawn the attention of the Court to the fact that PW-3 had also denied the prosecution case regarding arrest of the appellant before him. Learned counsel for the appellant also contended that informant Naresh Kumar (PW-1) and other witness constable Navin Kumar (PW-4) were the police personnel, therefore any statement given to them or any alleged confession before them is not admissible in evidence under Section 25 of the Indian Evidence Act. He further contended that since no independent witness had supported the charges, and the testimony of police personnel are that of biased persons which is inadmissible in evidence, therefore, the trial court had committed an error by relying on their evidence. In these circumstances, conviction of the appellant is erroneous and this appeal should be allowed. In any case the appellant is entitled for bail at this stage.

7. Learned AGA refuted the arguments of the appellant's counsel and contended that the two constables Naresh Kumar and Navin Kumar (PW-1 & (PW-4) were not persons connected with the investigation of the matter at the time when the accused appellant met them on 04.09.2005 at 11:50 pm. in the night and confessed his guilt and gave information, on the basis of which, dead body of the deceased was recovered and knife was handed over to these witnesses. He further contended that PW-6 Dr. Ved Prakash had performed the post-mortem who had proved that Laxman was murdered by cutting of his trachea and elementary canal. In this murder, prosecution had proved the charges as well as the recovery of murder weapon from the appellant, apart from the free confession of appellant. There is no discrepancy in the evidence of prosecution side. Therefore, the appellant is not entitled for bail at this stage.

8. We have considered the arguments and rival contentions, and gone through the records of the original case as well as the legal position.

9. It is admitted that when constables Naresh Kumar and Navin Kumar (PW-1 & PW-4) had met the appellant accused for the first time then no police case was registered and no investigation had started. According to the evidence given in the court by these two witnesses, namely PW-1 and PW-4, the appellant had met them in the way with a knife in his hand and on enquiry the accused confessed that after the altercation, he had murdered his brother Laxman by slitting his neck. These witnesses also stated that after receiving information, they had gone to the house of the appellant with him and found the dead body of Laxman in his sahan and blood was scattered around it. Then they had sealed the knife and clothes of the accused and prepared its memorandum, which was proved in the Court. The statements of PW-1 and PW-4 were accepted by the trial court as evidence of believable independent witnesses. Admittedly the statements of PW-1 and PW-4 are in consonance and support each other and also support the prosecution version of the case. The main contention about their statements was that they being police personnel, their statements are not admissible u/s 25 of the Indian Evidence Act. This argument is not acceptable in the light of various pronouncements of Hon'ble Apex Court on this point which hold that only those persons can be treated as "police officer" within meaning of Section 25 of the Evidence Act who were involved in active investigation of the case in hand.

10.Learned counsel for the appellant argued that after disclosure of the fact of murder of Laxman someone had actually called the police as argued by learned counsel for the appellant. This fact could not be substantiated from the evidence adduced in the trial. No one is said to have called the police, or that the police was informed by phone in his presence. It appears that seeing the police on the spot, witnesses have presumed that the police was actually called. But even if it is accepted that constables Naresh Kumar and Navin Kumar (PW-1 & PW-4) had reached on the spot after intimation to the police by some one, and then appellant had made a confession before them, such fact would also not change the legal status of his confession because PW-1 or PW-4 had never possessed the influence or authority over the investigation. So they cannot be accepted as "police officer" within meaning of Section 25 of the Evidence Act.

11.In State of Punjab Vs. Barkat Ram, AIR 1962 SC 276, Hon'ble Apex Court had held as under:

"We now refer to certain aspects which lead us to consider that the expression "police officer" has not such a wide meaning as to include persons on whom certain police powers are conferred. The object of enacting s. 25 of the Evidence Act, whose provisions formerly formed part of the Code of Criminal Procedure, was to exclude from evidence confessions made to the regular police which had a very bad reputation for the methods it employed in investigation, especially in forcibly extracting confessions with the object of securing a conviction. The past conduct of the members of the police organization justified the provision. It is too much to suppose that the Legislature did intend that all persons, who may have to investigate or arrest persons or seize articles in pursuance of any particular law of which at the time it had no conception, should be considered to be so unreliable that any confession made to them must be excluded just as a confession made to a regular police officer. If it could not contemplate the later creation of offences or of agencies to take action in respect to them under future legislation, it could not have intended the expression "police officer" to include officers entrusted in future with the duty of detecting and preventing smuggling and similar offences with the object of safeguarding the levying and recovery of Customs duties. If the Legislature had intended to use the expression 'police officer' for such a wide purpose, it would have used a more comprehensive expression. It could have expressed its intention more clearly by making any confession made to any officer whose duty is to detect and prevent the commission of offences inadmissible in evidence. "

12.In Badaku Joti Savant v. State of Mysore, AIR 1966 SUPREME COURT 1746 the Apex Court had held :

"In these circumstances we are of opinion that even though the Central Excise Officer may have when making enquiries for purposes of the Act powers which an officer-in-charge of a police station has when investigating a cognizable offence, he does not thereby become a police officer even if we give the broader meaning to those words in S. 25 of the Evidence Act."

"the statement made by the appellant to the Deputy Superintendent of Customs and Excise would not be hit by S. 25 of the Evidence Act and would be admissible in evidence unless the appellant can take advantage of S. 24 of the Evidence Act."

13.In Balkishan A. Devidayal v. State of Maharashtra, (1980) 4 SCC 600 Supreme Court held"

"It may be recalled that the primary test evolved in Badku Joti Savant case (AIR 1966 SC 1746) by the Constitution Bench, is: Whether the officer concerned under the special Act, has been invested with all the powers exercisable by an officer in charge of a police station under Chapter XIV of the Code, qua investigation of offences under that Act, including the power to initiate prosecution by submitting a report (charge-sheet) under Section 173 of the Code. In order to bring him within the purview of a "police officer" for the purpose of Section 25 of the Evidence Act, it is not enough to show that he exercises some or even many of the powers of a police officer conducting an investigation under the Code."

14.In Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409 Hon'ble Apex Court had held:

"Thus the ratio of the decision appears to be that even if an officer is invested under any special law with powers analogous to those exercised by a police officer in charge of a police station investigating a cognizable offence, he does not thereby become a police officer under Section 25, Evidence Act, unless he has the power to lodge a report under Section 173 of the Code."

"The nomenclature is not important, the content of the power he exercises is the determinative factor. The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge-sheet under Section 173 of the Code. That is why this Court has since the decision in Badku Joti Savant accepted the ratio that unless an officer is invested under any special law with the powers of investigation under the Code, including the power to submit a report under Section 173, he cannot be described to be a ''police officer' under Section 25, Evidence Act."

15.It is settled legal position that only that officer/ police personnel can be treated as "police officer" under section 25 of Indian Evidence Act, 1872 who posses the power to investigate the matter and also has power to prosecute the offender by filing a charge-sheet/ report under section 173 of Code of Criminal Procedure. In absence of such authority to influence the investigation any police personnel cannot be accepted as "police officer" within the meaning of Section 25 of the Evidence Act.

16.In the present matter also, the informant Naresh Kumar (PW-1) and Navin Kumar (PW-4) were police constables by profession but in fact when they met the appellant for the first time alongwith the knife and after questioning, on his information, and on his pointing out they found the dead body of victim Laxman, at that time neither investigation had started nor were they involved in any official work relating to the investigation of the said incident of murder. At that time, their position was like any other independent persons of the society. It would be a misinterpretation of law when it is accepted that any other private person in the same situation and circumstances would have been believable but they (PW-1 & PW-4) should not be believed because they were police constables by profession although at the time of incident they were not involved in any investigation of the case. In fact, in the present case the status of PW-1 and PW-4 was as good as that of any independent private person, therefore they are competent witnesses under the Evidence Act and their evidence cannot be disbelieved only on the ground that they were recruited in the police department. Therefore, the contention of the learned counsel for the appellant on this point is unacceptable.

17.The prosecution evidence proved that Laxman was murdered on 04.09.2005 as stated in the charge of the case. It is also proved from the evidence that immediately after the commission of the charged incident, the appellant had left the spot and in the way he met the constables Naresh Kumar and Navin Kumar (PW-1 & PW-4) and who on enquiry had confessed his guilt regarding murder of his brother, and then led them to the place of incident to recover the dead body of Laxman. Although, there appears to be some minor contradiction regarding the incident due to testimony of the hostile witnesses, namely PW-1 & PW-4, but they are negligible and not material. Learned Sessions Judge had gone through the evidences available on record and had prima facie reached to the correct conclusion of guilt of the appellant Bobby @ Sushil. At this stage the judgment of the trial court as well as the findings of learned Sessions Judge given in it prima facie appear to be correct and without any infirmity. It is found that after some altercation with his brother, the appellant had suddenly got provoked, and in a heat of passion he had killed his own brother Laxman. This is a very heinous offence. At this stage appellant is not found entitled for bail. Therefore, his bail application is rejected.

Order Date :- 24.8.2015

Sanjeev