Allahabad High Court
Sukai Pasi And Another vs State Of U.P. on 5 June, 2017
Bench: Kaushal Jayendra Thaker, Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Court No. - 15
Case :- CRIMINAL APPEAL No. - 354 of 2005
Appellant :- Sukai Pasi And Another
Respondent :- State Of U.P.
Counsel for Appellant :- Anita Singh,Sudhir Kumar Singh
Counsel for Respondent :- Govt.Advocate
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Vivek Chaudhary,J.
1. The present appellants have preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 16.02.2005 passed by the learned Addl. Sessions Judge, Court No.30, Barabanki in Sessions Case No.430 of 1999, whereby, the learned trial Judge has convicted the appellant No.1 under sec. 302 of Indian Penal code (hereinafter referred to as ''IPC') and sentenced to undergo life imprisonment and to pay a fine of Rs. 5,000/, in default, to undergo further R/I for five months and appellant No.2 is convicted for commission of offence under Section 201 of Indian Penal Code and sentence to undergo imprisonment of four years R.I. and to pay fine of Rs.1000/- and in default to undergo further simple imprisonment of one month.
2. In order to bring the home the charge levelled against the appellants-accused, the prosecution has examined the following witnesses.
1. WP-1 Benchoo ex. 25
2. PW-2 Rais Ahmad ex. 29
3. PW-3 Abbas ex. 37
4. PW-4 Deshi Deen ex.44
5. PW-5 Dr. S.K. Tando n ex. 46
6. PW-6 Abdul Kaium ex. 51
7. PW-7 Guru Prasad (Const.) ex. 54
8. PW-8 Hari Shanker Yadav (Const.) ex. 65
9. PW-9 Ghanshyam Singh (S.I.) ex. 58
10. PW-10 Athar Ali ex. 60
11. PW-11 Satish Chandra Ojha (S.S.I.) ex.63
12. CW-1 Hari Murat Choubey ex.66
3. To bring home the charge levelled against the appellants-accused, the prosecution has also produced the following documentary evidence before the trial Court.
1. Written Report ex. Ka-1 09
2. Recovery Memo ex. Ka-2,3 10
3. Postmortem Report ex. Ka-4 12
4. Copy of Report ex. Ka-5 15
5. Inquest Report ex. Ka-7 17
6. Recovery Memo ex. Ka-8 21
7. Site Plan ex. Ka-14 23
4. The medical evidence is of vital importance in this case so as to come to the finding as to cause of death. The injuries as per the post-mortem report are as follows:-
1. Incised wound 7.0 cm x 3.0 cm over the Rt. side of face 1.0 cm below (R) stretches including mandible cut throat & throat.
2. Incised wound 2.0 cm x 1.0 cm X bone deep 1.0 cm below lower lip.
3. Incised wound 6.0 cm. x. 2.0 cm over Rt. side of neck skin to trachea & longers including all underneath compounding stucture in musk, artery, whole of Rt. Ear.
4. Incised wound 16.0 cm x 2.0 cm, 5.00 cm below & behind Rt. Ear over the back of vertebra including underneath structure cut.
5. Incised wound 5.0 cm x 1.0 cm, 2.0 cm above injury no.4.
6. Incised wound 9.0 cm x. 2.0 cm over the (L) side of back of neck, 3.0 cm exterior to left ear, bone deep.
5. Thereafter, after examining the witnesses, further statement of the appellants-accused under sec. 313 of CrPC was recorded, in which, the appellants-accused have denied the case of the prosecution.
6. After considering the oral as well as documentary evidence and after hearing the parties, learned Addl. Sessions Judge, Barabanki vide impugned judgment and order dated 16.02.2005 held the appellants - accused guilty to the charge levelled against them under sec. 302, 201 Act, convicted and sentenced the appellants accused, as stated above.
7. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence dated 16.02.2005 passed by the learned Addl. Sessions Judge, Barabanki, the present appellants have preferred this appeal.
8. Heard Mr. Sudhir Kumar Singh learned advocate for the appellants and learned Additional Government Advocate for the respondent-State.
9. Mr. Sudhir Kumar Singh learned advocate appearing for the appellants-accused has vehemently submitted that the evidence on record goes to show that the offence under section 302 of IPC is not made out, and therefore, the impugned judgment and order of conviction and sentence may be quashed and set aside and the appeal be allowed. Mr. Singh learned advocate for the appellants has submitted that the trial Court has erred in believing the prosecution case and evidence on record. He has further submitted that the judgment and order of conviction is based on improper appreciation of the evidence of prosecution and based on improbabilities and therefore the same deserves to be quashed and set aside. Mr. Singh learned advocate further submitted that there is absence of motive as it is not proved that the deceased had any enmity with the appellants-accused. There are several missing links in the evidence led by the prosecution before the trial Court and only on incriminating statement of the accused, punishment cannot be awarded. He has further contended that the chain of incident is broken from day one as no one has seen the accused with the deceased and in the testimony of the mother of the deceased, she accepted in the cross-examination that all the three keys were with her, and therefore, also the accused could not have gone to the house from where certain incriminating links were found. It is further contended that only on the evidence of witnesses who have not fully supported the prosecution case, the appellants have been convicted. It is further submitted that this testimony could not have been relied on by the learned trial Judge which is against the principles of appreciation of evidence under sections 25 and 27 of the Evidence Act. It is submitted that when nobody had seen the deceased with the accused, the accused could not have been convicted. It is further submitted that the witnesses have not supported the case of the prosecution, save and except, the interested witnesses, and therefore, the impugned judgment and order of conviction and sentence deserves to be quashed and set aside.
10. Per contra, learned Additional Government Advocate (hereinafter referred to as ''AGA')has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Learned AGA further submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in convicting and sentencing the accused to undergo rigorous imprisonment for life. Learned AGA further submitted that the prosecution has proved the case beyond reasonable doubt and there are no missing chain. He has contended that the deceased had gone to the place where the accused had access. The weapon used for the commission of offence was found from the place where the incident had occurred. There was washed blood stains found and acidic area was also found, and further more, this was the place which was not accessible to all which was shown by the accused, and therefore, he has heavily relied on the decision of the Apex Court in the case of Raja @ Rajinder v. State of Haryana, reported in JT 2015(4) SC 57. According to learned A.G.A., there is no missing link, and therefore, this Court may concur with the view taken by the learned trial Judge, and the present appeal be dismissed.
11. We have gone through the oral as well as documentary evidence produced on record. We have also read the oral evidence of prosecution witnesses and also perused the charge framed against the appellants.
12. The principles enunciated by the Apex Court for case hinging on circumstantial evidence and what should be the approach of the Court in an appeal under sec. 374 of Code of Criminal Procedure, where the accused has been convicted by the learned trial Judge for commission of the offence under section 302 coupled with sec. 201 IPC, has to be evaluated. The factual scenario as it emerges, there are three aspects; the seizure of the weapon of assault; the report of FSL showing the blood stains matching with that of the deceased and recovery of weapon at the instance of the accused. Learned advocate has tried to place reliance on authoritative pronouncement of the Apex Court in the case of Bahadul v. State of Orissa, reported in AIR 1979 SC 1262, contending that merely because the weapon was shown by the accused, it would not be admissible in evidence under Sec. 27 of the Evidence Act. The said decision cannot help the accused as in the said decision, the place was accessible to all, whereas, in the present case, as the factual scenario unfolds itself the place of offence and the place where the weapon was found, were not accessible to all, rather they could be known to the accused alone. The recovery of blood stained clothes and dead-body, which was at the behest of the accused and as discussed hereinabove, the decision in the case of Dilipkumar Ramayanprasad Dushad & Anr. vs. State of Gujarat rendered in Criminal Appeal No. 1829 of 2010 and the decision of the Apex Court in the case of Raja @ Rajinder v. State of Haryana, reported in Jt 2015(4) SC 57 will not permit us to take a different view then that taken by the learned trial Judge as far as the admissions are concerned. As far as first aspect is concerned, therefore, the decision of the Apex Court in the case of Bahadul v. State of Orissa, reported in AIR 1979 SC 1262, will not be of any avail to the appellant in view of the recent decision of the Apex Court cited by learned AGA in the case of Raja @ Rajinder v. State of Haryana, reported in Jt 2015(4) SC 57, which is on similar facts, as they are, in the case on hand. There the case was slightly converse then the one on hand. In para-17 and 18 the Apex Court has observed as under:
"17. In Yogendra v. State of Rajsthan [2013 (12) SCC 399], it has been ruled that the Court must assess the extent to which the deposition of a witness can be relied upon. The court must make every attempt to separate falsehoods from the truth, and it must only be in exceptional circumstances, when it is entirely impossible to separate the grain from chaff, for the same are so inextricably intertwined, that the entire evidence of such a witness must be discarded. Thus viewed, the version of PW-7 to the extent that has been stated hereinabove is totally acceptable and credible.
18. In a case based on circumstantial evidence, motive assumes great significance as its existence is an enlightening factor in a process of presumptive reasoning [See Kundula Bala Subrahmanyam and Anr. v. State of Andrha Pradesh [Jt 1993 (2) SC 559 : 1993(2) SCC 684]]. In the case at hand, it had come in the evidence that the accused -appellant was suspicious of the illicit relationship between the deceased and his wife. The accused has taken the plea that he was never married. It is noteworthy that the materials brought on record go a long way to show that after the death of his brother he had entered into the wedlock with his sister-in-law as per the tradition of the community, that is, ''Kareva' marriage. The said facet of evidence has really not been assailed or shaken. Thus, it has been established that there was suspicion by the accused that the deceased was having relationship with his brother's wife and that had aroused his anger. The said motive further strengthens the case of the prosecution."
13. In this case, as per the factual matrix, which would go to show that the case of the prosecution as it rests on circumstantial evidence, the circumstance from which an inference of guilt is sought to be drawn, has to be cogently and firmly established. They must be of definite tendency which would point to the guilt of the accused and accused alone, the circumstances which would be taken cumulatively must and must form a chain unbroken and no escapism from the conclusion that the crime was committed by the accused and accused alone. This principle has been annunciated way back by the Apex Court in the case of Padala Veera Reddy v. State of M.P. Reported in JT 1989 (4) SC 223.
14. The decision in the case of Daya Ram & Os. vs. State of Haryana, reported in AIR 2015 SC 2550, more particularly, para 16 reads as follows:
"16. We have duly considered the evidence on record and also the arguments based thereon. The case witnesses an incident of double murder of which PW-3 has been cited to be the only eye witness. It is a matter of record, that the deceased persons were the brothers of this witness PW-3, who coincidently is also the informant. The courts below on a correct assessment of his evidence, had concluded that he indeed was present at the place of occurrence at the time of the incident. Though the participation of the three of the accused persons, namely, Devi Lal, Chander Singh and Vidyadhar alias Didaru was not accepted due to absence of any blood mark in the lathis said to have been wielded by them, in our opinion, in the face of the overwhelming and impregnable testimony of this witness on the entirety of the events relatable to the incident, it is not possible to extend any benefit of doubt to the appellants on that count. Suffice it to state, that the ocular account of the incident presented by the PW-3 has been in graphic details. He did not vacillate in identifying the appellants. He also could relate the weapons of assault used by them. The injuries sustained by the deceased in course of the incident and those detected in the post-mortem examination are compatible with each other. The seizure of the weapons of assault vis-a-vis the appellants based on their statements of disclosure and the report of the Forensic Science Laboratory, also establish their irrefutable nexus with the crime. The plea of the decomposition of the dead bodies to annihilate the medical opinion also lacks persuasion. Noticeably, as per the testimony of the doctor performing the post-mortem examination, the time of death does tally with the one of the incident."
15. The Apex Court in the case of Arvindkumar Anuplal Poddar v. State of Maharashtra, reported in 2012 Cri LJ 4007 (SC), has observed as under:
"The recovery from the place of occurrence, the frequent quarrels between the deceased and the accused as stated by PWs 1 and 2, the theory of the deceased having run away from the matrimonial home not properly explained by the appellant apart from the fact that no steps were taken by him to trace his wife, the weapon used, namely, the knife containing blood stains, that the nature of injuries found on the body of the deceased, that as per the version of PW-5, the post-mortem doctor, the death was homicidal and that the injuries could have been caused with the weapon marked in the case, that he appellant wanted to flee from the town itself."
16. In the case of Paulmeli and another vs. Sate of Tamil Nadu thro' Inspector of Police, reported in (2014) 13 SCC 90, in paragraphs no. 20 to 22, the Apex Court has observed as under:
"20. Paulmeli (PW2) has suported the case of the prosecution so far as the present appellants are concerned. He was declared hostile when he did not name the other accused, who stood acquitted by the courts below and there could be no difficulty to accept this deposition to that extent.
21. This Court in Ramesh Harijan v. State of U.P. While dealing with the issue held: (SCC pp 786-87, para 23)
"23. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examine him.
''6....The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof.'
22. In State of U.P. v. Ramesh Prasad Misra, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Sarvesh Narain Shukla v. Daroga Singh, Subbu Singh v. State, C. Muniappan v. State of T.N. and Himanshu v. State (NCT of Delhi). Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and the relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
17. The post-mortem report shows that death was due to shock and hamarage as a result of anti-mortem injuries. The injuries which have been found on the body of the deceased has caused the death and the submission of learned counsel for the appellant that this was a case of grave and sudden provocation cannot be accepted. The decision cited by learned counsel for appellant in Vijay Thakur v. State of Himachal Pradesh reported in 2014 (14) SCC 609 and submitted that accused found the deceased in compromising position with his wife is also not acceptable as there are large number of incised wounds and further the dead body was found buried in the house of accused, and therefore, we are unable to accept the submission that this was a case of grave and sudden provocation. The theory put forward by the accused and the entire chain is here-in-above mentioned is complete, and therefore, it cannot be said that accused, Sukai Pasi, has not committed the offence under Section 302 read with Section 201. I.P.C.
18. In this view of the matter, we are unable to persuade ourselves to take a different view than the taken by the trial court. The chain of circumstances points out only the guilt of accused and none else.
19. Going through the record and testimony, it is evident that there are no antecedents but as the circumstances are against the accused, we do not think that this is a case where the plea of acquittal can be accepted on the ground of benefit of doubt and the same is rejected. The alternative prayer that the case be considered under Section 304 Part-I or Part-II of I.P.C. cannot also be considered as the circumstances go to show that there were more than six injuries and, therefore, that benefit also cannot be given. The evidence is so clinching that we are unable to persuade ourselves to take different view than taken by the trial court.
20. We accept learned counsel for appellant's alternative submission that looking to the recent judgment of Apex Court in Vikas Yadav vs. State of U.P. reported in 2016 (9) SCC 541, and we hold that life imprisonment would be for the minimum period of fourteen years for Sukai Pasi. The fine if not paid the default sentence shall start from the fourteenth year. He shall also be entitled for all remissions. Life imprisonment would not mean till last breathe of life. This prayer is accepted.
21. It was incumbent on the State Authorities to have exercise the power under Section 432 read with Section 434 of Criminal Procedure Code, which has not been done, and therefore, we exercise of powers in light of the aforesaid decision and direct the State Government that if the accused is completed fourteenth year, he be granted all remissions.
22. As far as Smt. Prema Devi is concerned, she has been convicted for commission of offence Section 201 I.P.C., we reduce the sentence to that already undergone. As she is on bail, she need not surrender. Her bail bonds shall stand cancelled.
23. With these observations, this appeal is partly allowed.
24. Record be sent to trial court.
25. Copy of this judgment to be sent to the concerned authorities as per provisions of Criminal Procedure Code.
Order Date :- 5.6.2017
Suresh/
(Vivek Chaudhary, J.) (Dr. Kaushal Jayendra Thaker, J.)
