Sanjay Alias Chhotey vs State Of U.P.
2017 Latest Caselaw 6433 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 47
 

 
Case :- JAIL APPEAL No. - 6691 of 2004
 

 
Appellant :- Sanjay Alias Chhotey
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail, Ms. Somya Chaturvedi, Amicus Curiae
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Chandra Dhari Singh,J.

(Delivered by Hon.Chandra Dhari Singh,J.)

01. Heard Ms. Somya Chaturvedi, learned Amicus Curiae for the appellant and Sri B.A. Khan, learned Additional Government Advocate for the State.

02. This Jail Appeal has been filed against the judgment and order dated 3.4.2002 passed by the Special Judge (NDPS Act), Kanpur Nagar in S.T. no.685 of 2000, whereby the appellant was convicted for offence punishable under Sections 302 and 201 I.P.C. and for offence under Section 25 Arms Act. He was sentenced to undergo imprisonment for life for offence punishable under Section 302 I.P.C. He was further sentenced to undergo R.I. for one year under Section 201 I.P.C.. He was sentenced to undergo R.I. for six months for the offence punishable under Section 25 Arms Act. All the sentences shall run concurrently.

03. Before dealing with points raised in this appeal, it is necessary to set out very briefly relevant facts of which prosecution case against the appellant substantially rest. The incident which has given rise to the present criminal proceedings took place on 22.10.1999 at about 12.00 O' clock (noon), at the house of the informant situated at Om Nagar, Darshan Purwa, P.S. Fazalganj, Kanpur Nagar.

The appellant was having illicit relation with deceased i.e. Smt. Usha Devi for more than two years from the date of occurrence. P.W.1 Ramesh Chandra, husband of the deceased persuaded his wife to abandon the illicit relation with the accused/appellant and lead a moral life. It is stated that on this persuasion, the deceased began to lead a moral life after abandoning the relations with the appellant. On the date of the incident, Ramesh Chandra Bharti, P.W.1 had gone to attend his duty at the office of Nagar Palika and their youngest daughter Priyanka (P.W.5) was at home. The accused armed with a knife entered into the house of the deceased and inflicted injuries on the body of the deceased. At the time of the incident, P.W.5,Priyanka was present on the site and started crying. The P.W.5, Priyanka went to the house of P.W.3, Km. Geeta and P.W.4 Km.Sonam and informed them that the appellant was inflicting her mother by knife. Both of them reached to the spot and saw the incident. The accused/appellant while threatening, fled away from the scene of the occurrence.

04. As per the prosecution case, Kusum w/o Lalaram and Shyama w/o Sewalal also arrived there and they also saw the accused/appellant was going out from the house of the deceased in blood stained clothes and with blood stained knife. Chandra Prakash, P.W.2, Preeti and Roshni had also witnessed the accused, going out from the house of the deceased. Ramesh Chandra ( P.W.1) husband of the deceased came to his house in the day hours to take his lunch and he was informed about the incident. He saw that his wife was murdered and her deadbody was lying in the pool of blood. He prepared the F.I.R. (Ex.Ka-1) which was registered as Case Crime No.249 of 1999, under Section 302 I.P.C. at Police Station Fazalganj, District Kanpur Nagar. The distance from the place of occurrence and police station is only one kilometer.

05. S.I. Jai Shankear Pandey, P.W.9 was entrusted with the investigation. He visited the place of occurrence and prepared the inquest report. He took blood stained soil and plain soil from the place of occurrence. He recovered blood stained knife from the possession of the appellant and sent the deadbody to the mortuary for post mortem. The post moretm was performed by Dr. J. C. Harsh, P.W.8 who noted 9 incised wounds on the body of the deceased. He also noted the cause of death due to hemorrhage and shock by ante mortem injuries and prepared the post mortem report Ex.Ka-5. P.W.9 S.I. Jai Shanker Pandey recorded the statements of the prosecution witnesses and after completing the investigation, submitted a chargesheet (Ex.Ka-17 & Ka-18) against the appellant. Case of the prosecution was sought to be established by the testimony of nine witnesses and 18 Exhibits of the material witnesses. The appellant denied that he had anything to do with offences charged. Their contention was that false case had been made out against him and he pleaded not guilty. Therefore, he was put to the trial.

06. After conclusion of the trial the Special Judge (NDPS Act), Kanpur Nagar convicted the appellant for offence punishable under Sections 302 and 201 I.P.C. and for offence under Section 25 Arms Act. He was sentenced to undergo imprisonment for life for offence punishable under Section 302 I.P.C. He was further sentenced to undergo R.I. for one year under Section 201 I.P.C.. He was sentenced to undergo R.I. for six months for the offence punishable under Section 25 Arms Act. All the sentences shall run concurrently.

07. This jail appeal has been filed before this Court on the ground that the appellant was falsely implicated in the case due to enmity.

08. Ms. Somya Chaturvedi, learned Amicus Curiae appearing for the appellant submitted that entire prosecution case has been made on the basis of cooked up story to falsely implicate the appellant. Ramesh Chandra (P.W.1), husband of the deceased was real culprit, who has committed the offence for murdering his own wife due to her illicit relation with the appellant. She further submitted that there was no occasion for the appellant to kill a woman with whom he was maintaining comfortable relation, since husband had a problem with the relationship, therefore, he might have committed the murder of the deceased. The witnesses have not supported the case of the prosecution. There are many contradictions in the statements of the witnesses. The complainant himself declared hostile and he has not supported the case of the prosecution. He stated in his deposition that nobody has seen the incident, but he proved his signature on the complaint and he further stated that he had only signed the plain papers at the instance of Inspector. He stated in his deposition that P.W.5, his daughter was not present, when the incident was took place. P.W.2 Chandra Prakash also has not supported the case of the prosecution and he stated in his deposition that he has not seen the incident and he has refused to accept that he has given any statement under Section 161 Cr.P.C. before the police. She further submitted that in the statements of P.W.3 and P.W.4, there are material contradictions, therefore, these witnesses cannot be believed. P.W.5, daughter of the deceased was a child tutored witness. Her testimoney cannot be believed. Therefore, the prosecution has failed to proved its case beyond reasonable doubt. Conviction under Sections 302 and 201 I.P.C. is unwarranted and thus, the appeal deserves to be allowed.

09. On the other hand, learned A.G.A. for the State vehemently opposed the appeal contending that prosecution has proved its case beyond any doubt and all the witnesses P.W.3, P.W.4 and P.W.5 supported the case of the prosecution. Witness of the recovery, Doctor and I.O. are also corroborated the eye witnesses. Material evidences and the ocular evidences are corroborating to each other, therefore, this appeal has no merit and liable to be dismissed.

10. We have considered the rival submissions made by the learned counsel for the parties and perused the records.

11. In the F.I.R. which was registered on 22.10.1999 at 1.00 P.M., it is stated that the appellant killed the deceased after inflicting knife injuries. The F.I.R. was lodged promptly as incident took place at 12.00 O' clock (noon) and on the same day at 1.00 P.M., the F.I.R. was lodged with all minutes informations P.W.1, Ramesh Chandra had been declared hostile, but in his chief he has identified and proved his signature on the complaint.

12. P.W.3 Km. Geeta, stated in her deposition that on 12.10.1999 at about 12.00 O'clock (noon), when she and her sister Km. Sonam were in the house at that time Priyanka, daughter of P.W.1 Ramesh Chandra Bharti came in her house and requested to save her mother from the appellant. They went to the place of occurrence and saw that the appellant was inflicting the knife blows on the body of the deceased and when they objected he threatened them. Neighbors Kusum and and Shyama had also come at the time of incident.

13. P.W.4 Km. Sonam had also stated that she went to the place of the incident on the request of P.W.5 Priyanka, who had come in the house of the witnesses P.W.4 and P.W.5. At that time, she was crying and with folded hand requested to her to save her mother from the appellant, when she went at the place of occurrence, she saw that appellant was inflicting knife blows on the deceased.

14. P.W.5 Priyanka deposed that she was present, when the appellant had come on place of the incident and started quarreling with deceased. She further stated in her deposition that the appellant came on the site with the knife and after quarrel, he started inflicting her mother. She rushed to the house of P.W.4 and P.W.5 and asked them to come at the place of occurrence to save her mother. Knife was recovered at the instance of the accused.

15. P.W.6, Sri Virendra Singh Chauhan was posted as Head Constable at P.S. Kalyanpur Kanpur Nagar. He prepared the Chik F.I.R. (Ext.Ka2) on the basis of written report Ex.ka-1. He also made entries in the G.D. (Ext. Ka 3).

16. P.W.7, S.I. Sri Krishna Dubey visited the place of occurrence along with S.I. Mathura Singh. Sri Jai Shanker Pandey, P.W.9 after preparing inquest report he arrested the accused-appellant. He recovered blood stained clothes and knife from the possession of the accused. Recovery memo of knife and blood stained clothes were prepared as Ex. Ka-4 in his presence. Dr. J. C. Harsh, P.W.8, who had been posted as Medical Officer, conducted post mortem on the body of the deceased. He noted nine incised wounds and multiple incised wounds on the body of the deceased. He was of the opinion that death of the deceased was caused due to hemorrhage and shock due to ante mortem injuries. He was examined to prove the post mortem (ex. Ka-5) S.I Jai Shanker Pandey (P.W.9) was entrusted with the investigation. He visited the place of occurrence and prepared the site plan. He also got prepared inquest report and other relevant documents.

17. As per the medical report, the deceased got nine incised wounds due to sharp edged weapon like knife. The eye witness P.W.3 P.W.4 and P.W.5 categorically stated in their deposition that accused had given blows from the knife and, therefore, the deceased got the knife injuries. This evidence finds corroboration by version put in the F.I.R. as it was stated that the appellant came with knife and had given knife blow on her body. The above facts, further find corroboration by the testimony of P.W.3 P.W.4 and P.W.5 and all three witnesses categorically stated that he came with knife and started giving blow to the deceased. The deceased got nine inflicted injuries by the sharp edged weapon i.e. knife.

18. The witnesses P.W.3, P.W.4 and P.W.5 are also corroborated with each other. P.W.3, P.W.4 and P.W.5 stated in their deposition that on the date of the incident at 12.00 (noon) accused-appellant came with knife and started blow on the body of the deceased. When P.W.3 and P.W.4 tried to save the deceased the accused threatened them and while threatening them, he fled away from the scene of occurrence.

19. Thus these witnesses specifically stated that accused had inflicted injuries on the body of the deceased by knife and, therefore, due to these injuries the deceased died. The testimoney of these witnesses is corroborated by medical evidence as well as the averment made in the F.I.R. Km. Geeta P.W.3 and Km. Sonam P.W.4 are resident of the same locality and their houses are situated just after one house from the house of the deceased. It is very natural that P.W.5 had rushed to house of neighbour with whom she was well acquainted to save the life of her mother, therefore, there is no ground to disbelieve their testimony. They are most natural witnesses and there is no ground to disbelieve them.

20. Witnesses of fact P.W.3, P.W.4 and P.W.5 further finds corroboration by the arrest of the accused and at his instance, recovery of the blood stained knife was made. S.I. Sri Krishna Dubey (P.W.7) and S.I. Jai Shanker Pandey (P.W.9) had been examined. The accused/appellant was arrested on 22.10.1999 at 4.40 P.M. and recovered the blood stained knife and blood stained clothes. Recovery memo of the knife and blood stained clothes had been prepared as Ex.Ka-4. The recovery was proved by S.I. Sri Krishna Dubey (P.W.7) and S.I. Jai Shanker Pandey (P.W.9.).

21. When we analyse the statements of P.W.1 to P.W.9, they are not contradictory to each other, rather they are complementary to each other. In the instant case ocular evidences, medical evidence and other material evidences are corroborating to each other.

22. It was further submitted by learned Amicus Curiae that there was no motive to commit the offence. It is established law that the absence of motive is not material, where the fact is proved by evidence on record.

23. In fact, motive is a thing which is preliminary known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime.

24. In the case of Dhananjay Shaker Shetty vs. State of Maharastra (2002) 6 SCC 596, the Hon'ble Supreme Court held:-

"Merely because motive is neither alleged nor proved, the same would ipso facto not affect the prosecution case but in case there are other circumstances to create doubt regarding veracity of the prosecution case, this may also become material."

25. In the case of Shivji Genu Mohite v. State of Maharasthra, (1973) 3 SCC 219 the Hon'ble Supreme Court held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eyewitnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy.

26. In the cases of Hari Shanker v. State of U.P., (1996) 9 SCC 40, Bikau Pandey vs. State of Bihar, (2003) 12 SCC 616 and Abu Thakir vs. state of T.N., (2010)5 SCC 91 the Hon'ble Supreme Court held that it is settled legal proposition that even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only by the reason of the absence of motive, if otherwise the evidence is worthy of reliance.

27. While dealing with a similar issue, this Court in State of U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73 held as under:

"The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."

28. In the present case, motive suggested by prosecution appears to be reasonable and is in consonance with behavior of a person placed is a situation like appellant.

29. In such circumstances, contention made by learned Amicus Curiae is not acceptable apart from it motive has also been proved by the prosecution. It was admitted fact that the appellant had illicit relation with the deceased. When the husband of the deceased objected the relationship with the appellant, the deceased had started to lead moral life and make a distance from the accused/appellant, therefore, appellant was not happy and killed the deceased.

30. Ms. Somya Chaturvedi, the learned Amicus Curiae submitted that P.W.5 is a child witness and she can be tutored, therefore, her testimony cannot be relied. But law recognizes the child as a competent witness. The evidence of a child is required to be evaluated carefully because she is an easy prey to tutoring. Therefore, always the Court looks for adequate corroboration from other evidence to her testimony.

31. In the present case, the testimony of the P.W.5, Priyanka is corroborated with the testimony of P.W. 3 Km.Geeta and P.W.4 Km. Sonam. Her testimony is also corroborated with medical evidence and other material evidence, therefore, there are adequate corroboration from other evidences to her testimony.

32. Thus, for the foregoing discussions, available evidence on record and by evidence of Km. Priyanka, P.W.5, Km. Sonam, P.W.4 and Km. Geeta, P.W.3, by corroboration of medical evidence and evidence of Dr. J.C. Harsh P.W.8 and recovery of blood stained knife from the possession of the accused and has proved by S.I. Krishna Dubey, P.W.7 and S.I. Jai Shanker Pandey, P.W.9 and by version put in the F.I.R. lodged by Ramesh Chandra, P.W.1, the prosecution case has been proved beyond any doubt.

33. In view of the above, we are of the view that the instant case does not present special features warranting review of the impugned judgment. Thus, There is no cogent reason to interfere with the impugned judgement and order dated 3.4.2002 passed by the Special Judge (NDPS Act), Kanpur Nagar. The appeal lacks merit and is accordingly dismissed.

34. The Registry is directed to send a certified copy of the judgment with all original documents to the concerned court below for compliance.

35. Before parting with case, we record our appreciation to Ms. Somya Chaturvedi, learned Amicus Curiae in rendering full assistance to the court during the course of hearing.

36. She shall be paid Rs.10,000/- from the fund of State Legal Services Authority.

Order Date:-7th November, 2017

Asha

(Chandra Dhari Singh,J.) (Shri Narayan Shukla,J.)