Jagdish Alias Baba vs State
2017 Latest Caselaw 8016 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 

 
Court No. - 47
 

 
Case :- JAIL APPEAL No. - 4591 of 2002
 

 
Appellant :- Jagdish Alias Baba
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Rajesh Mishra
 
Counsel for Respondent :- D.G.A.,A.G.A.
 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Krishna Singh,J.

[Delivered by: Hon'ble Krishna Singh, J]

This criminal jail appeal has been preferred by the appellant-accused Jagdish @ Baba against the impugned judgment and order dated 23.1.2002 passed by the Trial Court/Additional Sessions Judge, Mirzapur in S.T. No.425 of 1993 (State of U.P. vs. Jagdish @ Baba), under Sections 302/201 IPC.

By means of impugned judgment and order, trial court has convicted the appellant-accused for the offence under Section-302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/- with default sentence of three months imprisonment. The appellant-accused was however acquitted of charge under Section 201 IPC.

A chik FIR Ext. Ka-1 of case crime No.145 of 1993 under Sections 302, 201 IPC was registered on 18.5.1993 at about 5:45 p.m. at Police Station Kachhwa, District Mirzapur against the appellant-accused Jagdish @ Baba s/o Deep Narayan r/o Bidaspur, Police Station Kachhwa, District Mirzapur, on the basis of oral complaint lodged by the chowkidar of village Bidapur namely Sallar Yadav.

The prosecution case contained in the chik FIR is as under:

On 18.5.1993, at about 4:00 p.m, complainant came to know that accused-Jagdish @ Baba after committing murder of his wife Smt. Phool Kumari at his house went somewhere. Thereafter, complainant alongwith Village Pradhan Shyam Pyare Tiwari and many other villagers reached the house of the accused and found that the house was locked from outside and rotten smell was coming from the house. During investigation, on 18.5.1993, the Investigating Officer, S.I. Dev Nath reached the house of the appellant-accused, and in his presence, Village Pradhan unlocked the house of the appellant-accused. Thereafter, Investigating Officer recovered the dead body of the deceased Phool Kumari from a room of the house of the appellant-accused. In this connection, recovery memo of Tala Ext.Ka-16, recovery memo of saree, lungi, envelope card and piece of wood Ext.Ka-20, Panchayatnama of dead body Exs.6 & 7 and other papers in regard to the post-mortem of dead body were prepared on the spot. At the time of recovery of dead body, appellant-accused was not present at his house i.e. place of occurrence.

During investigation on 24.5.1993, appellant-accused was arrested by the Investigating Officer, then he voluntarily made a confessional/disclosure statement before Investigating Officer. Thereafter, two keys of his house were recovered from Takh of western wall of his house on the basis of disclosure statement made by him. In this connection, a fard/memo Ext.23 was prepared on the spot. After completing the investigation, the Investigating Officer submitted the charge-sheet Ext.Ka-2 under Sections 302 and 201 IPC against the appellant-accused.

The case was committed by the Chief Judicial Magistrate, Mirzapur to the Court of Sessions.

After hearing the prosecution as well as defence and perusing the material available on record, charges were framed by the trial court against the appellant-accused under Sections 302 and 201 IPC. Charges framed were read over and explained to the appellant-accused, he pleaded not guilty and claimed to be tried. Hence, the prosecution was called upon to lead evidence.

In support of charges, the prosecution examined PW-1 complainant Sallar Yadav, Chaukidar of village Bidapur. PW-2 Head Constable Laxman Singh Yadav, PW-3 Dr. S.P. Singh, PW-4 Kumari Ranjana, PW-5 Shyam Pyare Tiwari, PW-6 Smt. Govindi Devi, PW-7 Constable Nagendra Singh, PW-8 Jay Kumar, PW-9 Nar Singh, PW-10 S.I. Ravi Shankar Mishra, Investigating Officer and PW-11 S.I. Dev Nath.

After conclusion of prosecution evidence, appellant-accused was examined under Section 313 Cr.P.C. In his statement under Section 313 Cr.P.C, he denied his participation in the alleged crime. He has also stated that 2-3 months prior to the murder of his wife Phool Kumari, he became Sanyasi and went to Bombay.

No evidence has been adduced on behalf of the appellant-accused in support his defence.

We have heard learned Amicus Curiae for the appellant-accused as well as learned AGA for the State and perused the entire material available on record.

Learned Amicus Curiae for the appellant-accused has contended that appellant-accused is innocent and has been falsely implicated in this case due to village enmity and party bandi. Learned Amicus Curiae has further contended that appellant-accused has not committed the murder of his wife Smt. Phool Kumari, and at the time of occurrence, he was not present at his house. Learned Amicus Curiae has further contended that in fact, two or three months prior to the murder of his wife, appellant-accused became Sanyasi and went to Bombay. Learned Amicus Curiae has further contended that during investigation, appellant-accused never made any confessional/disclosure statement before the Investigating Officer and alleged recovery of two keys on his disclosure statement from the Takh of western wall of his house is fake and false. Learned Amicus Curiae has further contended that the statements of prosecution witnesses are contradictory in nature and PW-4 Km. Ranjana and PW-6 Smt. Govindi Devi turned hostile, therefore, reliance cannot be placed upon the testimony of prosecution witnesses. Learned Amicus Curiae has further contended that charge levelled against the appellant-accused under Section 302 IPC is not proved beyond reasonable doubt from the evidence adduced by the prosecution. Therefore, appeal is liable to be allowed against the impugned judgment and order passed by the trial Court.

Per contra, learned AGA for the State has contended that from the prosecution evidence available on record, the case of prosecution is proved beyond reasonable doubt against the appellant-accused. Learned AGA has further contended that impugned judgment and order passed by the trial Court is based upon proper appreciation of evidence available on record and findings recorded by the trial Court do not suffer from any infirmity and as such, this appeal is devoid of merit and is liable to be dismissed.

PW-1 Sallar is the complainant/informant. He has stated in his statement on oath that he is the Chaukidar of village Bidapur and accused is also the resident of same village. On 18.5.1994, Village Pradhan, Shyam Pyare Tiwari told him that rotten smell is coming from the house of the accused, then he alongwith Village Pradhan and other villagers went to the house of Jagdish/ appellant-accused and found that house of the accused was locked from outside and accused Jagdish was not present there. Thereafter, he lodged an oral FIR Ext.Ka-1 of the incident at Police Station Kachhawa. During investigation, police unlocked the house of the accused and recovered therefrom decayed dead body of the wife of the accused. Thereafter, police prepared the Panchnama of the deceased and other papers in regard to post-mortem of the dead body.

PW-2 Head Constable, Laxman Singh Yadav, is the Constable Clerk of P.S Kachhawa. He has stated in his statement on oath that on 18.5.1998, on the basis of oral information given by Sallar, Chaukidar of village, he has prepared chick FIR of this case. He has also proved the entry of relevant G.D. as Ext.Ka-2.

PW-3 Dr. S.P. Singh conducted the post-mortem examination on 19.5.1993 at about 3:45 p.m. of deceased Phool Kumari wife of Jagdish @ Baba aged about 22 years and deposed that he found following injuries on the body of deceased:-

Ante-mortem injuries:-

(i) finger pressure marks present on the side of wind-pipe, the thumb mark is higher and wider on the front side of the neck and other finger marks on other side/downwards and clotted blood was present on these marks. The face is puffy and cynosed.

(ii) Contusion:- 4 cm x 2 cm on the right side leg. 4 cm below right knee joint and clotted blood was present.

(iii) Contusion:- 6 cm x 3 cm on the left ankle joint and clotted blood was also present.

(iv) Contusion:- 5 cm x 3 cm on the joint of left shoulder and clotted blood was present.

Doctor opined that deceased appears to have died due to throttling, as a result of asphyxia. Death was about three days old. He has further stated that death of deceased might have occurred in the evening/night of 15.5.1993.

PW-4 Kumari Ranjana is the niece of the accused. She turned hostile and stated in her statement on oath that deceased Phool Kumari was the wife of his uncle Jagdish, she had died in the month of May. Dead body of the deceased was recovered from a room of the house of the Jagdish and at the time of recovery of dead body of deceased, appellant-accused Jagdish was not present at his house.

PW-5 Shyam Pyare Tiwari is the Pradhan of Village Bidapur. He has stated in his statement on oath that on 18.5.1993, he was informed by Ram Laxman, who is the Chacha of the accused Jagdish about the rotten smell came from the house of accused Jagdish then he called Chaukidar and asked him to inform the police. He has further stated that during investigation on 18.5.1993, at about 4:00 p.m, Investigating Officer alongwith police force came at the house of accused Jagdish and at that time accused was not present there. Thereafter, in his presence, the house of the accused was unlocked and police recovered the dead body of Phool Kumari from a room of the house of the accused. In this connection, relevant papers were prepared by the police. He has further stated that accused used to beat his wife Phool Kumari daily in inebriated state. When investigating Officer came to village then accused ran away from the village while he was present before that.

PW-6 Smt. Govindi Devi is the Aunt of the appellant-accused. She turned hostile and has stated in her statement on oath that prior to the incident accused used to beat his wife Phool Kumari regularly and he was habitual of taking alcohol and ganja. She has further stated that Phool Kumari had been murdered and police had prepared Panchayatnama in her presence. The dead body of Phool Kumari was recovered in decayed condition from the house of the accused.

PW-7 Constable Nagendra Singh is a formal witness. He has stated in his statement on oath that on 18.5.1993, he alongwith Investigating Officer went to the place of occurrence. In his presence, Investigating Officer had prepared Panchayatnama Ext. Ka-6 of the deceased Phool Kumari and several other papers. Thereafter, dead body of the deceased was handed over to him and Constable Lal Bahadur Pathak for post-mortem.

PW-8 Jai Kumar is the cousin brother of deceased Phool Kumari. He has stated in his statement on oath that on 15.5.1993, he went to the house of accused Jagdish and met him, then accused told him that his wife Phool Kumari went to the house of his relative and she will come back after two or four days. He has further stated that thereafter he came back to his village and after three to four days, he came to know that accused had committed murder of his wife. He has further stated that accused used to beat his wife at his residence.

PW-9 Nar Singh is the uncle of the deceased Phool Kumari. He has stated in his statement on oath that after receiving the information in regard to the murder of deceased Phool Kumari, he went at the house of accused on 19.5.1993 and after cremation of dead body, he alongwith the other persons came back to his village on the same day at about 9:00 or 10:00 p.m. He has further stated that whenever the deceased visited her maternal home, she used to complain that her husband beats her regularly.

PW-10 is the S.I. Ravi Shankar Mishra, IInd Investigating Officer of this case, who has stated in his statement on oath that during investigation, he had recorded statement of Jay Kumar under Section 161 Cr.P.C. and sent the case property (as is mentioned in Ext.Ka-5) to Vidhi Vigyan Prayogshala for chemical examination. He has further stated that after completing the investigation, he had submitted the charge-sheet Ext.Ka-4 against the accused Jagdish @ Baba under Sections 302, 201 IPC.

PW-11 S.I. Dev Nath is the Ist Investigating Officer of this case, who has stated in his statement on oath that during investigation, he had examined complainant and several other prosecution witnesses under Section 161 Cr.P.C. On 18.5.1993, he had prepared Panchayatnama of the deceased Ext.Ka-6, recovery memo of Tala Ext.Ka-7, recovery memo of saree, lungi and envelop card and piece of Wood Ext.Ka-20, recovery memo of Upari Ext.Ka-21, site plan Ext.Ka-19 and several other papers in regard to the post-mortem examination of deceased. He has further stated that during investigation on 18.5.1993, he had recovered the dead body of deceased Phool Kumari from a room of the house of accused which was locked from outside and at that time, accused was not present there. He has further stated that during investigation, accused was arrested by him on 24.5.1993 from the village then he voluntarily made a disclosure statement before him. Thereafter, two keys of his house were recovered from the Takh of western wall of his house on the disclosure statement. In this connection, fard Ext.Ka-23 was prepared on spot.

In the case of State of U.P. vs. Hari Mohan and others 2001 SCC (Cr) 49, Hon'ble Apex Court has held as under:-

"To convict a person on the basis of circumstantial evidence all the circumstances relied upon by the prosecution must be clearly established. The proved circumstances must be such as would reasonably exclude the possibility of innocence of the accused. The circumstantial evidence should be consistent with the guilt of the accused and inconsistent with his innocence the chain of circumstances furnished by the prosecution should be so complete as not to lead any reasonable ground for conclusion consistent with the innocence with the accused. Medical evidence in such a case may be an important circumstance giving assurance to the existence of the other circumstances alleged against the culprit. When the evidence against the accused, particularly when he is charged with grave offence like murder consists of only circumstance, it must be qualitatively such that on every reasonable hypothesis the conclusion must be that the accused is guilty; not fantastic possibilities nor freak infrences but rational deductions which reasonable minds make from the probative force of facts and circumstances."

In the case of Binay Kumar Singh vs. State of Bihar, AIR 1997 SC 322, Hon'ble Apex Court has held as under:-

"It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi."

In the case of Veer Singh and others vs. State of Uttar Pradesh (2014) 2 SCC 455, Hon'ble Apex Court in para 19 has held as under:-

"It is settled that the testimony of the hostile witness need not be discarded in toto and that portion of testimony which supports the prosecution case can be taken for consideration."

Admittedly, there is no direct evidence connecting the accused with the commission of crime. The case of prosecution is based upon circumstantial evidence. It is often said that witnesses may lie but the circumstances cannot.

It is settled that whenever any natural witness is produced in the Court, some contradictions of trivial nature may appear in the testimony. It is tutored witness, whose testimony is normally devoid of any contradictions, minor or major. Hence, presuming for argument sake, any contradiction appearing in the testimony of prosecution witnesses, in our estimation, is of trivial nature and would have no bearing on the veracity of the testimony of witnesses.

It is established from the testimony of PW-8 Jay Kumar that on the date of occurrence appellant-accused was present at the scene of occurrence. It is also established from the testimony of PW-5 Shyam Pyare Tiwari, Village Pradhan, that when Investigating Officer came to village then appellant-accused ran away from the village while he was present before that. It is important to mention here that appellant-accused has not produced any evidence in support of his defence that at the time of commission of alleged offence he was not present at his parental house and prior to two or three months he went to Bombay.

In view of the above and considering the entire facts and circumstances of the case we are of the considered view that plea of alibi, as set-up by the appellant-accused, is absurd.

From the prosecution evidence, available on record, it is proved beyond reasonable doubt that the deceased Phool Kumari was the wife of appellant-accused and prior to the occurrence, appellant-accused was residing at his parental house alongwith his wife; that appellant-accused used to beat his wife daily in inebriated state and she was a continuous source of trouble for him; that the place of occurrence is the parental house of the appellant-accused; that on the date of occurrence i.e. on 15.5.1993, appellant-accused was present at his parental house; that on 18.5.1993, dead body of the wife of appellant-accused was recovered from a room of the house of the appellant-accused; that at the time of recovery of dead body of deceased Phool Kumari, appellant-accused was not present at his parental house and house was locked from outside; that after commission of offence, appellant-accused absconded from his parental house; that on 24.5.1993, appellant-accused was arrested by the police, then he voluntarily made a confessional/disclosure statement before the Investigating Officer, thereafter, the keys of his house were recovered from the Takh of western wall of his parental house on his disclosure statement; that PW-3 Dr. S.P. Singh, conducted the post-mortem examination on 19.5.1993 at about 3:45 p.m of deceased Phool Kumari, aged about 22 years and deposed that he found four ante-mortem injuries on her body. He opined that deceased appear to have died due to throttling, as a result of asphyxia about 3 days prior to the post-mortem; if, according to the appellant-accused, he was not present when the murder of the deceased took place in his residence, as rightly pointed out by the trial court, then, in view of Section 106 of the Indian Evidence Act, it was for him to explain as to how the dead body of the deceased was found in his house. Admittedly, no step was taken by the appellant-accused to explain the presence of the dead body in his house.

In view of the law laid down by the Hon'ble Apex Court, in the cases of Hari Mohan (Supra), Veer Singh (Supra) and Binay Kumar Singh (Supra) and on the basis of prosecution evidence led in the case, we are satisfied that circumstances enumerated hereinabove have been fully established by the prosecution. The circumstances are a chain, complete in itself, and inconsistent with the innocence of the appellant-accused. On the touchstone of the tests regarding appreciation of circumstantial evidence, enumerated hereinabove, we have no doubt in our mind that the prosecution had proved its case beyond any reasonable doubt that appellant-accused had caused the death and thus committed the murder of his wife Phool Kumari. He has rightly been convicted by the trial Court under Section 302 IPC.

In catena of decisions, Hon'ble Apex Court has held that the trial Court after going through entire evidence must form an opinion about the credibility of the witnesses and the Appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons.

On the basis of discussions made above and after considering the evidence available on record, we are of the considered view that findings of conviction recorded by the trial Court are well substantiated from the evidence available on record. The trial Court has appreciated the evidence in the right perspective, we don't find any justification to interfere with the findings of convictions recorded by the trial Court. The findings of conviction recorded against the appellant-accused are being maintained and affirmed and no interference is being made in the sentence awarded to the appellant-accused.

The appeal is devoid of merit and is accordingly dismissed.

Let a copy of this judgment and order alongwith original record be transmitted to the learned trial court for information.

The learned Amicus Curiae Ms. Saumya Chaturvedi shall be paid Rs.10,000/- for providing active assistance to the Court from the fund of State Legal Services Authority.

(Krishna Singh, J.)       (Shri Narayan Shukla, J.)
 

 
Order Date:- December 15, 2017
 
Rishabh