Deepak Verma vs State Of U.P.
2016 Latest Caselaw 1486 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
(Judgment reserved on 11.4.2016)
 
(Judgment delivered on  19.4.2016)
 

 
Court No. - 28
 

 
Case :- CRIMINAL APPEAL No. - 1181 of 2014
 
Appellant :- Deepak Verma
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Atul Verma
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Anil Kumar Srivastava-II,J.

(Per Anil Kumar Srivastava-II, J.)

1. Mr. Atul Verma, learned counsel for the appellant and Mr. Sharad Dixit learned A.G.A. for the State were heard at length.

2. Instant criminal appeal has been preferred by the appellant Deepak Verma challenging the judgment and order dated 21.8.2014, passed by learned Additional Sessions Judge, Court No.15, Lucknow in Sessions Trial No.1020 of 2008 (State versus Deepak Verma), whereby accused-appellant was convicted for an offence punishable under section - 302 I.P.C. and sentenced to imprisonment for life and a fine of Rs.10,000/-. In default of payment of fine simple imprisonment for one year was also awarded.

3. In brief, case of the prosecution was that complainant Kailash Babu Verma lodged an F.I.R. at the police station Krishna Nagar, District- Lucknow on 02.6.2008 at 08:30 P.M. alleging that he is working as Machine Attendant at Government Press, Aishbagh, Lucknow. He leaves his house for his office at about 07:00 A.M. in the morning. On the fateful day, i.e., 02.6.2008, his wife Mithilesh Verma was all alone at her residence. Some unknown persons attacked her by knives. When his son Deepak came to the house he found his mother in injured condition, then he informed his maternal uncle Saligram Rastogi and also the complainant Kailash Babu Verma. Mithilesh Verma was taken to Trauma Centre.

4. Initially, F.I.R. was lodged at Case Crime No.305 of 2008, under sections-307 I.P.C., which was converted under section-302 I.P.C. on the death of the deceased Mithilesh Verma on 04.6.2008. Investigation was entrusted to the Investigating Officer on the following date, i.e., 03.6.2008. Investigating Officer visited the place of occurrence and prepared site plan. Inquest proceedings were conducted on 05.6.2008 at 08:45 A.M. Dead body was sent for postmortem. Postmortem was conducted on 05.6.2008 by Dr. Raghuveer Kumar PW-5. According to the postmortem report, cause of death was shock and haemorrage due to ante-mortem injuries. Injuries were caused by sharp edged and blunt weapon. Following ante-mortem injuries were reported in the body of the deceased.

1. A 6 cm. wound on head with six stitches.

2. A 4 cm. wound with four stitches over the left ear on the left side of the head.

3. A 2 cm. wound with two stitches on the head which was 3 cm. behind the wound no.1.

4. A 4 cm. wound with four stitches, 5 cm. over the right year on the right side of the head.

5. A 5 cm. wound with six stitches in front of the right hand, right in the middle.

6. A 2 cm. wound with two stitches behind the right elbow.

7. A 8 cm. wound with eight stitches on the wrist and palm of left hand.

8. A 4 cm. wound with four stitches on the right side of the chest , 10 cms. Below the right armpit.

9. A 3 cm. X 1 cm. X chest cavity deep incised wound on the right side of the chest 8 cm. below the wound no.8.

10. A 3 cm. wound with three stitches on the right side of the abdomen, 5 cm. below the lowest rib of the right side.

11. A 2 cm. wound with two stitches on the right side of the abdomen, 9 cm. above the 'iliaccrest'.

12. A 4 cm. wound with four stitches on the left side of the abdomen

13. A 4 cm. wound with four stitches on the left side of the abdomen, 12 cm. above the wound no.12.

5. During investigation, accused-appellant was arrested on 22.6.2008 by the Police. On the pointing out of the accused-appellant, Investigating Officer along with other police officials recovered banka and scissors from the bushes near Bangla Bazar Road, Mazar Road on the bank of a nullah. Confessional statement was made by the appellant that he has inflicted injuries to the deceased Mithilesh Verma by the banka and scissors. Articles were sealed at the spot and recovery memo was prepared. After completion of the investigation, charge sheet under sections-302 and 307 I.P.C. was filed against the accused-appellant.

6. According to the defence, accused was falsely implicated due to enmity. No recovery was made on his pointing out. There was some dispute on payment of money between Saligram Rastogi and the deceased. Saligram Rastogi has falsely implicated the accused in this case.

7. In order to prove its case, prosecution has produced PW-1 Kailash Babu Verma informant, PW-2 Badakka who was turned hostile, PW-3 Saligram Rastogi, maternal uncle of the accused-appellant, PW-4 Seema Rastogi wife of Saligram Rastogi, PW-5 Dr. Raghuveer Kumar who has conducted the postmortem, PW-6 S.I. Surendra Rai and PW-7 Inspector Man Singh. Recovery of scissors and banka under section-27 of Evidence Act is proved by PW-6 Surendra Rai. PW-8 Constable Arvind and PW-9 S.I. Tej Narayan Singh are formal witnesses.

8. In defence, DW-1 Ramesh Kumar Singh, DW-2 Sadashiv Dixit, DW-3 Anita Verma and DW-4 Pawan Rastogi has been produced by the appellant. After perusing the evidence on record, learned trial court has convicted the appellant as mentioned above. Feeling aggrieved by the judgment, appellant has preferred this appeal.

9. Learned counsel for the accused-appellant argued that this is a case of no evidence where no eyewitness is produced. It is further argued that learned trial court has convicted the accused on the basis of statement of PW-3 Saligram Rastogi and PW-4 Seema Rastogi, who have stated that dying declaration was made by the deceased in their presence implicating accused-applicant for commission of the offence. It is further argued that statement of PW-3 Saligram Rastogi and PW-4 Seema Rastogi are not believable and reliable. At this stage, we have to examine the legal position on the law of dying declaration. Hon'ble Apex Court in the case of Vijay Pal vs. State (Government of NCT Delhi, (2015) 4 SCC 749 has referred a judgment of constitution bench of Hon'ble Apex Court Laxman vs. State of Maharashtra (2002) 6 SCC 710 wherein it was held that

"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite."

10. In Rama Kant Mishra alias Lalu and others vs. State of U.P. 2015 (8) SCC 299 Hon'ble Apex Court has stated that the state of mind of the maker would also be material in discerning completely as to whether maker was mentally fit to make the statement and whether the maker actually could have contemplated death. In Banarasi Dass and others versus State of Haryana, (2014) 15 SCC 485 necessary ingredients for relevance of the dying declaration have been summarized by the Hon'ble Apex Court which are as under :-

1. The statement is made by a person who is conscious and believes or apprehends the death is imminent.

2. The statement must pertain to what the person believes to be the cause or circumstances of death.

3. What is recorded, must be the statement made by the person concerned, since it is a exception to the rule of hearsay evidence.

4. The statement must be confidence bearing, truthful and credible as held by this Court in Laxman vs. State of Maharashtra (2002) 6 SCC 710 and consistently followed including the very recent one in Mallella Shyamsunder vs. State of A.P. (2015) 2 SCC 486.

5. The statement should not be one made on tutoring or prompting.

6. The Court must also scan the statement to see whether same is prompted by any motive of vengeance.

11. In the background of above legal proposition, now we shall examine the Statement of PW-3 Saligram Rastogi and PW-4 Seema Rastogi. Admittedly, PW-3 Saligram Rastogi is the maternal uncle, i.e., elder brother of deceased, of accused- appellant. PW-3 Saligram Rastogi has stated that appellant informed him at about 02:00 P.M. that some unknown person has caused injuries to the deceased who is lying in her house. He and his wife Seema rushed to the place of occurrence. They took Mithilesh in injured condition to the Trauma Centre where she was treated. Dying declaration was allegedly made by her on 04.6.2008 in presence of PW-3 Saligram Rastogi, his wife PW-4 Seema, Badakka Devi. This witness could not be relied because in the examination-in-chief he has admitted that this fact was told to him by his wife Seema Rastogi and Bhabi Kamla Devi, hence, it could not be believed that dying declaration was made by Mithilesh in presence of Saligram Rastogi.

12. PW-4 Seema Rastogi is wife of PW-3 Saligram Rastogi, who has stated that when she was in the hospital on 04.6.2008 deceased Mithilesh regained some consciousness and made a statement that appellant has caused injuries to her. At that time, PW-1 Kailash Babu, his daughter Deepa, Kamla Devi , Badakka and Seema Rastogi were present there.

13. PW-4 Seema Rastogi nowhere stated that PW-3 Saligram Rastogi was also present when Mithilesh made dying declaration. It means that PW-3 Saligram Rastogi was not present at the time of alleged dying declaration made by Mithilesh.

14. Statement of PW-4 Seema Rastogi also does not inspire confidence and is not believable. PW-1 Kailash Babu Verma is husband of the deceased who has stated that he continuously remained with the side his wife from the time when she was admitted to the hospital till her death. PW-1 Kailash Babu Verma nowhere stated that any dying declaration was made by the deceased. This witness has not been declared hostile by the prosecution, hence, it could not be believed that this witness is trying to save the appellant, who happens to be his son. PW-2 Badakka has been declared as hostile by the prosecution. PW-4 Seema Rastogi has admitted that when Mithilesh was making dying declaration Deepak was standing outside the ICU. If it is so, then why Deepak was not arrested immediately, why Seema did not inform the police about this fact ? PW-7 Inspector Man Singh has recorded the statement of Seema Devi under Section-161 Cr.P.C. He has admitted that he has not been informed that the deceased has regained consciousness. If Mithilesh got conscious in the hospital, then why he has not been informed so he could not have recorded the statement of the injured Mithilesh? Dying declaration was made in presence of Seema Rastogi whose statement is not believable. Learned trial court has wrongly believed the statement of Saligram and his wife Seema.

15. Learned A.G.A. argued that scissors and banka used in commission of crime were recovered at the pointing out of the appellant under section-27 Evidence Act. Exhibit ka-3 is recovery memo dated 22.6.2008. No time of recovery is mentioned in the recovery memo. PW-6, S.I. Surendra Rai and PW-7 Inspector Man Singh are witnesses of recovery. Recovery was made at about 11:00 A.M. Place of recovery is about 2 Kms from the house of the appellant. No public witness was taken while place of recovery is busy road. No attempt was made to obtain the public witness. No plausible explanation has been given. According to PW-7 Man Singh, there were blood stains on the recovered articles but no such fact is mentioned in the recovery memo. Recovered articles were not sent to the Forensic Science Laboratory to ascertain as to whether there are blood stains on the recovered articles or not? Whether blood stains are of human blood or not ? In all such circumstances, alleged theory of recovery of scissors and banka could not be believed. It is settled legal position that without corroboration of independent witnesses recovery of weapon of offence could not be believed. Sole evidence of recovery itself is not sufficient for conviction of the accused.

16. Initially, F.I.R. was lodged against the unknown persons. Report was lodged by husband of the deceased (Kailash Babu Verma) wherein it has been admitted that there was none at the house when Mithilesh was attacked by some unknown person. Specific defence has been taken that there was some dispute between PW-3 Saligram Rastogi and parents of the accused regarding some amount which was taken by the Saligram Rastogi from the parents of the appellant. When some unknown person attacked, the deceased, taking advantage of the situation Saligram Rastogi falsely implicated the appellant in this case. Prosecution has failed to prove the case against the accused beyond reasonable doubt and accused is entitled for acquittal.

17. Thus, this appeal deserves to be allowed and is hereby allowed. Appellant is acquitted of the charges levelled against him. He is in custody. He shall be released forthwith if not wanted in any other case.

18. Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.

Date :- 19.4.2016

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