Bablu Alias Sanjeev Mishram vs State Of U.P.
2017 Latest Caselaw 6802 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 47
 

 
Case :- JAIL APPEAL No. - 193 of 2016
 

 
Appellant :- Bablu Alias Sanjeev Mishram
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Rupak Chaubey A.C
 
Counsel for Respondent :- A.G.A.,Alok Ranjan Tripathi
 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Chandra Dhari Singh,J.

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

1. Heard Sri Rupak Chaubey, learned Amicus Curiae for the appellant and Sri B. A. Khan, learned A.G.A. for the State.

2. Present jail appeal is directed against the judgment and order dated 25.11.2015 passed by the Additional Sessions Judge, Kanpur Nagar in S.T. No.818 of 2011, by which the appellant-accused was convicted for offence punishable under Section 302 I.P.C.. He was sentenced to undergo imprisonment for life and pay fine of Rs.10,000/-, in default of payment of fine to undergo further imprisonment for one year.

3. The factual score that needs to be exposited is that on 20.3.2011, a Tehrir was made by Raj Kishore Gupta at Police Station Kalyanpur, Kanpur Nagar stating that on the same date i.e. on 20.3.2011 at about 5.15 A.M., there was a noise coming from the room where all the workers working in the sweet shop used to reside. After hearing noise, when the complainant and his son Kallu opened the door then they saw that Bablu alias Sanjeev Mishra (hereinafter referred to as 'the appellant') inflicting blows from the piece of wood on the deceased namely Bahadur. As per the version of the complainant in the F.I.R., he took help of other laborers namely Arvind, Yashwant and Dharmendra for untangling the dispute and thereafter took the deceased Bahadur to the hospital in car. The deceased took last breath during medical treatment. On the basis of Tehrir an F.I.R. was registered at about 8.30 A.M.

4. Post mortem of the deceased was conducted on 20.3.2011 by Dr. D.K. Misra at L.R. Hospital, Kanpur Nagar and he found following injuries on the corpus dlicit:-

(i) first injury lacerated wound of 8cm x 4cm on the right frontal region of the head. Fracture bone was found.

(ii) lacerated wound of 4 cm. X 1 cm on the right temporal beneath which bone was fractured.

(iii) blush mark with swelling of 12 cm x 8 cm. On the left region, bone bith the said injury was found fractured.

5. The prosecution, in order to prove the charge against the accused, examined 7 witnesses and brought number of documents on record. The main witnesses are P.W.1, complainant Raj Kishore Gupta, P.W.2 Ashish Gupta, P.W.3 Yashwant, P.W.4 Santosh Kumar, P.W.5 H.C.P. Pancham Lal, P.W.6 Dr. D.K. Mishra and P.W.7 Inspector Hari Ram. The defence chooses not to adduce any evidence. After conclusion of the trial, on appreciation of evidence on record, the Trial Court came to hold that accused-appellant was guilty of the offence punishable under Section 302 I.P.C. and accordingly, convicted him and imposed the sentence as has been stated hereinbefore.

6. The instant criminal jail appeal has been filed before this Court on the ground that the trial judge has fallen into error in appreciation of evidence on record and, accordingly, come to hold that the accused/appellant was guilty to commit the offence for punishable under Section 302 I.P.C.. Being of this view he convicted the accused/ appellant for the offence punishable under Section 302 I.P.C.

7. Sri Rupak Chaubey, learned Amicus Curiae appearing for the appellant has submitted that trial court has fallen a grave error by not appreciating that several contradictions between the statement of P.W.1 Raj Kishore Gupta and P.W.2 Ashish Gupta, who were claiming as eye witnesses. P.W.1 in his statement has stated that after noise coming from room where workers were sitting, he along with his son went to the said room and saw the accused-appellant inflicting blow from half burnt piece of wood on the deceased whereas P.W.2 who is the son of the P.W.1 in his deposition has stated that after hearing the noise from the said room his father woke up then after 10 to 15 minutes he also woke up and subsequently they rushed towards the said room and by seeing them the accused-appellant had ran away. The Amicus Curiae further submitted that P.W.3, Yashwant is not a reliable witness. He further submitted that the wood was not recovered. It is canvassed by him there was no reason on the part of the trial court to accept the testimony of P.W.1, P.W.2 and P.W.3, who were not reliable witnesses and P.W.1 and P.W.2 cannot be treated as eye witness. The trial court has totally ignored other opening circumstances which make them judgement/order of the trial court totally unsustainable, therefore appeal deserves to be allowed and judgement of conviction being unsustainable requires to be set aside/incinerated. Learned Amicus Curiae would also lay emphasis on the facts that there was no recovery of weapon, therefore, prosecution version does not inspire confidence.

8. On the other hand learned A.G.A. appearing for the State supporting the judgment and order of the trial court dated 25.11.2015 has contended that the trial court has reached the conclusion that all the ocular evidences, medical evidences and other material evidence on record supported the case of the prosecution beyond any doubt. Therefore, the appeal may not be allowed and is to be dismissed.

9. Before we scrutinize whether the trial court has appositely appreciated the evidence on record and whether the findings recorded on such appreciation by it are totally unreasonable or perverse leading to serious illegality, which would warrant interference by this Court, we would like to refer certain authorities in this regard.

10. Learned Amicus Curiae argued that there were material contradictions between statement of P.W.1 and P.W.2. We are going to anxious the contradictions of the depositions making by P.W.1 and P.W.2 which can be vital for the prosecution case.

11. P.W.1 in the statement has stated that after hearing noise coming from room where the workers were sitting he along with his son went to the said room and saw the accused-appellant inflicting blows from half burnt piece of wood on the deceased whereas P.W.2, son of P.W.1 in his deposition stated that after hearing noise from the said room his father woke him up and then after 10-30 minutes he woke up. Subsequently they rushed towards said room and by seeing them the accused/appellant had ran away.

12. Even P.W.2 has put dent story on the prosecution by stating that police has not made any written report in front of him but still he has signed the documents wherever the concerned police officer has said that he signed even on the blank papers.

13. P.W.2 Ashish Gupta has not been declared hostile. It has raised suspicion over the prosecution story and, therefore, prosecution is bound by statement of witnesses not declaring hostile but has deposed against the prosecution.

14. In Mukhtiar Ahmad Ansari vs. State (NCT of Delhi) (2005) 5 SCC 258 the Hon'ble Supreme Court held as under:-

"27. Referring to a leading decision of the Judicial Committee of the Privy Council in Sambasivam v. Public Prosecutor Federal of Malaya, (1950) AC 458, this Court said;

"The acquittal of Pritam Singh Lohara of that charge was tantamount to a finding that the prosecution had failed to establish the possession of the revolver Ex. P-56 by him. The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence with which he had been charged."

29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as PW 1. He, however, did not support the prosecution. The prosecution never declared PW1 "hostile". His evidence did not support the prosecution. Instead, it supported the defence. The accused hence can rely on that evidence.

30. A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan, JT (2000) 7 SC 549. In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The Doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the Doctor and it was binding on the prosecution.

37. Thus, on overall consideration of the matter, in our opinion, it cannot be concluded that the case against the appellant accused can be said to have been proved beyond reasonable doubt and the accused, in our considered opinion is entitled to benefit of doubt.

38. For the foregoing reasons, the appeal deserves to be allowed and is accordingly allowed. The order of conviction and sentence passed against the appellant accused under TADA as also under the Arms Act is liable to be set aside and is accordingly set aside. The appellant is said to have been on bail. The bail bond stands discharged. Amount of fine, if paid, is to be refunded to the accused.

15. In Rajaram vs. State of Rajasthan (2005) 5 SCC 272 the Hon. Supreme Court held that in case when prosecution witness has not been declared hostile, then prosecution is bound by statement of such witnesses.

16. In Javed Masood vs. State of Rajasthan (2010) 3 SCC 538 the Hon'ble Supreme Court held as under:-

19. PW-5 is none other than the brother of deceased and a highly interested witness whose evidence was required to be carefully scrutinised and precisely for that reason we have looked into the evidence of PW-5 with care and caution. The testimony of Mohammad Ayub (PW- 6) cannot easily be surmounted by the prosecution. He has testified in clear terms that PWs 5, 13 and 14 were not present at the scene of occurrence. It is not known as to why the public prosecutor in the trial court failed to seek permission of the court to declare him "hostile". His evidence is binding on the prosecution as it is. No reason, much less valid reason has been stated by the Division Bench as to how evidence of PW-6 can be ignored.

20. In the present case the prosecution never declared PWs 6,18, 29 and 30 "hostile". Their evidence did not support the prosecution. Instead, it supported the defence. There is nothing in law that precludes the defence to rely on their evidence.

21. This court in Mukhtiar Ahmed Ansari vs. State (NCT of Delhi) (2005) 5 SCC 258 observed:

"30. A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan, (2005) 5 SCC 272. In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The Doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the Doctor and it was binding on the prosecution.

31. In the present case, evidence of PW1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to police in which police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case, accused can rely on that evidence."

The proposition of law stated in the said judgment is equally applicable to the facts in hand.

22. It is clear that the evidence of PW-6 completely rules out the presence of Chuttu (PW-5) at the scene of offence. It is thus clear that PW-5 was not speaking truth, being interested witness obviously made an attempt to implicate the appellant in the case due to previous enmity. Be it noted that the entire prosecution case rests upon the Parcha Bayan (Ext. P12) lodged by PW-5. Once his presence is disbelieved, the whole case of the prosecution collapses like a pack of cards. In addition, the evidence of PWs 18, 29 and 30 who are all independent witnesses, also cast a serious shadow on the evidence of PWs 5, 13 and 14 as regards their presence at the scene of offence. It is under those circumstances, we find it difficult and impossible to place any reliance whatsoever on the evidence of PW-5 who is a highly interested and partisan witness. No reliance can be placed on his evidence in order to convict the appellants of the charge under Section 302, IPC. For the same reasons, the evidence of PWs 13 and 14 also is to be discarded. None of them was speaking truth.

17. P.W.3 Yashwant had stated that accused-appellant had joined sweet shop as a labourer two months before whereas as per other witnesses accused joined just before day of the incident. P.W.3 further stated in his testimony that as soon as he woke up first thing he noticed the deadbody of the deceased. As per the prosecution version, P.W.3 was sleeping in the same room where accused was sleeping. It is unbelievable that P.W.3 did not wake up after hearing noise which was so loud hearing. P.W.1 and P.W.3, who were sleeping in other room, as per the prosecution story, came in rescue of Bahadur (deceased). Therefore, in view of above, the testimony of P.W.3 may not be relied to convict the person for offence punishable under Section 302 I.P.C.. There was no recovery of piece of wood which was used in killing of the deceased.

18. In Mritunjoy Viswas vs. Pranab alias Kuti Biswas and another (2013) 12 SCC 796, the Hon'ble Supreme Court has observed that when there is ample unimpeachable ocular testimony supported by the medical evidence, non recovery of the weapon does not affect prosecution case but in the present case after perusal of testimony of P.W.1, P.W.2 and P.W.3, it is clear from the record that ocular testimony cannot be relied and, therefore, it is not unimpeachable ocular testimony. If the ocular witnesses are not being relied in that case, recovery of the weapon used in the offence is important evidence to establish the prosecution story/case beyond any reasonable doubt.

19. In Lakshmi and others vs. State of U.P. (2002) 7 SCC 198 the Hon'ble Supreme Court held that:-

"16. Undoubtedly, the identification of the body, cause of death and recovery of weapon with which injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under Section 302, IPC. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder. It would depend on the facts and circumstances of each case. A charge of murder may stand established against an accused even in absence of identification of body and cause of the death."

20. In Lakhan Sao vs. State of Bihar (2000) 9 SCC 82 the Hon'ble Supreme Court held that:-

"18.The non-recovery of the pistol or spent cartridge does not detract from the case of the prosecution where the direct evidence is acceptable."

When the direct witnesses are not reliable and contradictions in their statement goes to the roots of the case then the motive gets relevance for establishing the case of prosecution against the accused beyond any doubt.

21. In Manu Sao vs. State of Bihar (2010) 12 SCC 310 the Hon'ble Supreme Court held:-

"28. Lastly, now we should revert to the discussion on as to what was the motive of the appellant to kill the deceased.

It has come in evidence that the deceased had left her earlier husband and was living with the appellant, who was also staying away from his family in the cabin in his agricultural fields, where that incident occurred. There was definite protest raised by the villagers to their living together. The statement of PW4 in this regard is of relevance. Besides this, even the medical evidence had shown that the deceased was strangulated or throttled before her body was burnt. The social embarrassment could be a plausible motive for the appellant to commit the crime. Furthermore, the appellant took an incorrect, if not a false stand before the Court that the incident occurred in his absence. His conduct in naming Bhola Babu from whom he had sought help to take the deceased to the hospital also does not appeared to be correct.

Appellant made no effort whatsoever to examine any witness to establish this fact. The appellant has admitted that the deceased died in front of his eyes and he did nothing except reporting the matter to the police at a subsequent stage.

29. With the development of law, now it is a settled principle that motive is not absolutely essential to be established for securing conviction of an accused who has committed the offence, provided the prosecution has been able to prove its case beyond any reasonable doubt. In the present case, the motive suggested by the prosecution appears to be reasonable and is in consonance with the behaviour of a person placed in a situation like the appellant and it is also difficult to believe that a person would commit suicide without any provocation or incident immediately preceding the occurrence. The explanation rendered by the appellant has correctly been disbelieved by both the courts and we see no reason to take a different view.

22. In State of U.P. vs. Babu Ram (2000) 4 SCC 515 the Hon'ble Supreme Court held:-

11. We are unable to concur with the legal proposition adumbrated in the impugned judgment that motive may not be very much material in cases depending on direct evidence whereas motive is material only when the case depends upon circumstantial evidence. There is no legal warrant for making such a hiatus in criminal cases as for the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. However, it cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogations that cannot be put in evidence by them due to the ban imposed by law.

13. The present is not a case of complete dearth of motive. Respondent himself said about the motive and PW-6 confirmed it. Such a motive may appear to some persons as inadequate for liquidating once own parents. But any rancour burgeoning in the mind of an offender can foment wicked thoughts which may even flame up to flash point. So we are unable to concur with the High Court's view that the motive factor has weakened the prosecution case.

26. The trial court rightly appreciated the circumstances presented by the prosecution through the evidence and found them reliable and on the basis of such circumstances reached the conclusion that the respondent was responsible for the murder of his parents and brother. We have no other option but to interfere with the unmerited acquittal passed by the High Court. Hence we do so and restore the conviction passed by the trial court. However, we do not impose the extreme penalty which was chosen by the trial court. Hence the respondent is sentenced to imprisonment for life under Section 302 IPC.

23. In the present case, the prosecution has failed to establish the cogent motive.

24. After perusal of the testimony of P.W.1, P.W.2 and P.W.3 and other evidence on record, the prosecution has measurably failed to prove its case beyond any doubt. The deceased joined only one day before the shop and, therefore, there was no reason/motive to establish that the appellant had killed the deceased. The witnesses, who claimed the eye witnesses, had actually not seen the incident. The weapon was not recovered and no motive has been established for reasons of committing such a heinous offence. The conviction of the appellant cannot be maintained merely on suspicion, however, story it may be, these facts assume further importance on account of absence of proof to motive particularly when the appellant just joined the job one day before of the incident.

25. In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment/order dated 25.11.2015, passed by the Additional Sessions Judge, Kanpur Nagar. This jail appeal is, therefore, allowed and the impugned judgment and order dated 25.11.2015 convicting and sentencing the appellant Bablu alias Sanjeev Mishram is set aside. He is acquitted of charge by giving benefit of doubt. He shall be released from the custody forthwith unless required otherwise.

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

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

Order Date :- 14.11.2017

Asha

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