Sanjay Balmiki vs The State Of U.P.
2019 Latest Caselaw 334 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 07.02.2019
 
AFR
 
Court No. - 16
 
Case :- CRIMINAL APPEAL No. - 461 of 2001
 
Appellant :- Sanjay Balmiki
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Nishit Upreti,A. Ahmad,Abdul Rafey Siddiqui,Arun Sinha,Mohd. Abrar,Rajesh Kumar Dwivedi(A.C),Rehan Ahmad,Siddharth Singh,Sushil Miara,U.C. Srivastava,Vineet Singh Chauhan
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Prashant Kumar,J.

Hon'ble Karunesh Singh Pawar,J.

(Delivered by Hon'ble Karunesh Singh Pawar,J.)

1. The instant appeal, filed on behalf of the accused appellant, is directed against the judgment and order dated 9.5.2001 passed by learned Ist Additional Sessions Judge, Lucknow in Sessions Trial No.1096 of 1998 convicting and sentencing the appellant under Section 302 IPC for life with rigorous imprisonment.

2. The case of the prosecution is that the deceased Premawati was married with appellant Sanjay Balmiki and out of the wedlock they had six children. The appellant used to beat his wife Premawati deceased (victim) after taking liquor and due to that reason six years ago his brother Ram Prasad (P.W.1) took her to his home and a case for maintenance was filed, which was listed on 17.4.1996 for hearing. The appellant asked P.W.1 and deceased Premawati to withdraw the maintenance case to which they refused. The deceased Premawati used to do household cleaning work to earn her livelihood and her children. On 1.6.1998 at around 11:30 a.m. while she was cleaning near the Gate of House No.D-38 Mahanagar, Lucknow belonging to one Kailash Narain Srivastava-D.W.1. The servant of D.W.1 was filling water and P.W.2 Sangeeta, daughter of deceased was sitting nearby a tree. At that time, appellant Sanjay came armed with knife and told sister that he will not leave her alive as she has not withdrawn the case. Upon this, the deceased ran to save herself, however, she slipped and fell down and then appellant Sanjay gave her several knife blows.

3. P.W.2 after seeing this, ran to the house of P.W.1 and told that appellant is killing her mother, then P.W.1 along with his brother went at the spot at (Kailash Narain Srivastava's) house and saw that lot of blood was on the floor, then D.W.1 told him that on his telephone Police came there and had taken the deceased to the hospital for treatment. A written report (Ex-Ka-1) dated 1.6.1998 was given to the Police Station Mahanagar Lucknow. Consequently, Chik FIR bearing Case Crime no.198 of 1998 under Section 307 IPC was registered against the accused appellant. During treatment deceased succumbed to her injuries. Later on, section 302 IPC was added which is (Exhibit Ka-7). After lodging of the First Information Report, police took up the investigation. Inquest report (Ex-Ka-5) was prepared on the same day. The Investigating Officer (P.W.4) prepared site plan (Ex.Ka-3) and recovery memo as (Exhibit Ka-4). The victim died in the hospital and Dr. Mahendra Pratap (P.W.-3) prepared the post mortem report which is marked as (Exhibit Ka-2).

4. The prosecution after completing the investigation filed the charge sheet before the court concerned and the committal order dated 5.10.1998 was passed by the Chief Judicial Magistrate and since the matter was triable by the Sessions Court the case was sent to Sessions Court for trial. Thereafter, charge under section 302 IPC was framed by IInd Additional Sessions Judge, Lucknow and was read over and explained to the accused in hindi which pleaded not guilty and claimed to be tried.

5. The prosecution has examined four witnesses P.W.1 Ram Prasad, (P.W.2) Sangeeta daughter of deceased (victim) and appellant. Dr. Mahendra Pratap as P.W.3, who performed the post mortem examination.

6. The defence has examined Kailash Narain Srivastava as D.W.1. The statement of the accused under Section 313 Cr.P.C. was recorded. The case of defence is of simple denial. The appellant in his further reply stated that P.W.1 Ram Prasad used to come to his house and drink and when he refused he had a quarrel with the appellant and took his wife and children to his house. When he went to take them back, he refused to send back and he has been falsely implicated in this case.

7. Heard Shri Rajesh Kumar Dwivedi, learned amicus curiae for the appellant and learned AGA for the State.

8. The post mortem of the deceased victim was conducted by Dr. Mahendra Pratap (P.W.-3). On that day P.W.-3 was assigned to perform the autopsy. The post mortem report is (Exhibit Ka-2). On perusal of post mortem report, the following ante mortem injuries were found on the body of the deceased.

"1. Multiple stabbed wound in an area of 30 cm x 22 cm present on posterior lateral aspect on left (side) chest and abdomen just above the left laccrest. Total No.(8) right size varin refer 2 cm x 1 cm x ms. deep to 3 cm x 1 cm x cavity deep;

2. Stab wound 2 cm x 1 cm x Ms. Deep present of outer aspect of left thigh 15 cm below left of the crust;

3. Multiple stab wound in area 30 cm x 6 cm present on back of left upper arm and fore arm above below Elbow total no. six (6) size varying from 2.5 cm to 1 cm x ms.deep to 4.0 cmx2cm x bone deep;"

The doctor opined that cause of death was due to shock and hemorrhage as a result of ante mortem injuries.

9. P.W.1-Ram Prakash is the first informant of this case. He deposed that the appellant used to exert pressure on her sister (deceased) to withdraw the maintenance case filed by her. On 1.6.1998 his niece P.W.2 Sangeeta at about 11:30 a.m. informed him that appellant is killing her mother and requested to save her. The incident occurred at the gate of Kailash Narain Srivastava D.W.1 when he reached there, D.W.1 told him that his sister is injured and police took her to the Medical College and then he reached there. He further stated in his statement that P.W.2 was present with the deceased at the time of occurrence and she told her the entire incident.

10. P.W.2 is daughter of appellant and the deceased (victim) who stated that on 01.06.1998 her mother was killed at 11:30 a.m. while she was working at the house of Kailash Narain Srivastava and she was sitting under the tree. The servant of Kailash Narain namely Suresh was filling water, suddenly his father Sanjay came there from Railway track having knife in his hand and when he saw his father she told her mother to run and then her mother ran but due to the water on floor she slipped and appellant inflicted 8 to 10 knife blows on her mother. She started crying and blood was oozing out from the body of her mother. The appellant ran away, thereafter, several persons came and she ran to the house of P.W.1 which was 10-15 steps away from the place of occurrence and told her the entire story.

11. P.W.3 is the autopsy surgeon who has found multiple stabbed wounds in an area of 30 cm x 22 cm present on posterior lateral aspect on left side chest and abdomen just above the left pelvic crest. Total No.(8) right side varying from 2 cm x 1 cm x muscle deep to 3 cm x 1 cm x cavity deep; Stab wound 2 cm x 1 cm x muscle deep present on outer aspect of left thigh 15 cm below left iliac crest ; and Multiple stab wounds in an area of 30 cm x 6 cm present on back of left upper arm and fore-arm above and below elbow, total no. six (6) size varying from 2.5 cm to 1 cm x muscle deep to 4.0 cm x 2 cm x bone deep. He opined that these wounds were inflicted at around 11:30 a.m. on 1.6.1998 and could be caused by knife.

12. P.W.4, the Investigating Officer was also examined and he stated that after receiving information from wireless he reached on the spot i.e.at the house No.D-38, Mahanagar where he found that lady inside the gate was lying in the verandah bodily injured and he sent the injured victim to the KGMC College for treatment. He took the statement of P.W.1, P.W.2 and P.W.3 on the spot. Later on, after preparing the recovery memo and conducting the inquest report, he prepared the site plan and while he was doing investigation, he was informed that Premawati had died in the hospital and on that basis, case was got converted into Section 302 IPC. An inquest report was prepared by Chowki In-charge K.G.M.C. He further deposed that during investigation, he found that accused Sanjay Balmiki was facing a maintenance suit in the Family court and the case was in its last stage. He further deposed that appellant wanted his wife (deceased) to withdraw the case for which in the past also he has exerted pressure on her but she did scummed to pressure that is why to remove her from his way, the accused had killed his wife Premawati.

13. Lastly, the prosecution has examined P.W.4. The defence has examined D.W.-1-Dr. Kailash Narain Srivastava, owner of House No.D-38 Mahanagar. He stated that on 1.6.1998, around 11 to 11:30 a.m. the incident took place in the gallary outside the house and he was not present there at the time when incident took place. He returned at 11:30, he saw people gathered around there and on asking he was told that somebody had killed Premawati by knife.

14. Learned amicus curiae for the appellant submitted that the accused appellant was arrested by the police of Mahanagar Police Station, Lucknow on 13.8.1998 at 17:50 hours near Channi Lal Chauraha but nothing has been recovered from him. He further submitted that appellant has been convicted on the statement of sole eye witness P.W.2 who was a minor girl of 15 years of age. He further submitted that there is no independent witness to support the prosecution version and P.W.1 and P.W.2 are interested witnesses. There are material contradictions in the testimony of P.W.1, P.W2 and P.W.3. He also submitted that there is no public witness of arrest of the accused appellant. Lastly he submitted that appellant is innocent and he has been falsely implicated due to enmity with P.W.1.

15. On the other hand, learned AGA supported the prosecution version and has submitted that P.W.2 is the daughter of the deceased and her deposition fully corroborates the prosecution case. The learned court below after appreciating the evidence filed by prosecution witness has convicted the accused-appellant.

16. After giving anxious consideration to the arguments advanced by learned counsel for the parties, we have noticed that the sole eye witness in none other than daughter of the appellant and she is the star witness of the prosecution. She has seen the incident and in her statement she has stated that at the time of incident she was present near her mother and on 1.6.1998 at around 11:30 a.m. she went to the house of Kailash Narain Srivastava for doing household work and her mother was cleaning while she was sitting under the tree. She saw his father Sanjay came armed with knife and immediately she raised alarm and told her mother to run saying that ''papa is coming' upon this her mother ran but slipped and appellant gave 8-10 knife blows to her mother then due to alarm raised, several persons came there before that his father ran away. Thus he went to the house of his maternal Uncle P.W.1, about 10-15 paces away and informed him. When she came back, the police took her mother for treatment to the hospital. This witness has been cross examined in detail by defence but no evidence has come so as to show his presence at the spot may be doubted.

17. In the cross examination, she stated that servant of Kailash Narain Srivastava was frightened and went inside the house she was also frightened she did not save her mother but she ran seeking help of her Uncle P.W.1. She further deposed that his father has killed his mother by knife. She also deposed that she never asked her mother to reside with her father because she said that there is no use of residing with the said killer. In the year 1992 when this girl was residing along with her parents she must have seen physical abuse of his father upon her mother due to which she has stated that there is no use of living with such a killer. She met her father in the Court after the incident but she did not went to talk to him. She further deposed that her mother told her that she had filed case for maintenance upon her father that's why she had been killed so that the appellant may not have to give money.

18. The same motive has been attributed on the appellant by the Investigating Officer (P.W.4) who stated in his examination-in-chief that a case for maintenance was filed against the appellant in the Family Court which was pending and was in the last stage and that appellant wanted the deceased to withdraw this case. Earlier also, appellant has made pressure on his wife but she did not pay heed to the appellant in order to save himself from the case, he killed his wife-Premawati.

19. Considering the motive attributed both by P.W.4 and P.W.2 against the appellant D.W.1 Kailash Narain Srivastava has also stated that the deceased victim used to do the cleaning work at his house and on 1.6.1998 at around 11:30 a.m. when this occurrence took place, he went to police station and when he returned, saw the people gathered in front of his house and then somebody told him that deceased Premawati was killed by somebody by knife. Then he informed the police on telephone and within 10-15 minutes police came on the spot. He has further admitted that a person named Suresh used to work at his house and when he asked Suresh he informed that Premawati was cleaning and he was pouring water, meanwhile one person came armed with knife and after causing injuries to Premawati, with knife ran away. He further deposed that deceased was working at his house for the last 3-4 months during this period, the appellant has never come to his house, therefore, he does not recognized him. Although he is not an eye witness but he has corroborated and confirmed the fact stated by P.W.1 and P.W.2 as Premawati was stabbed by knife by some body at around 11:00 to 11:30 a.m. So far as the question of knife blows to the deceased is concerned, it is proved by the statement of P.W.2.

20. The argument of learned amicus curiae for the appellant that P.W.2 was 13 years of age at the time of incident and she was tutored by P.W.1 due to enmity is baseless. A child of 13 years of age will not give false testimony aginst her own father merely by tutoring her. In front of her eyes her mother was killed and inspite of the detail cross examination of P.W.2, no evidence could be procured by defence in their support and the evidence of P.W.2 remain intact.

21. So far as the argument of learned amicus curiae for the appellant that she was under the influence of her maternal Uncle-P.W.1 also does not appear to be probable because deceased Premawat and her children were not dependent on his brother P.W.1 Ram Prasad. She used to upbring her children on her own by doing cleaning work in the private houses.

22. Hon'ble Supreme Court in 1992 4 SCC 225 (Prakash vs. State of Madhya Pradesh) has held that minor of 14 years of age can give proper account of murder of his brother if he had seen the same. The relevant portion of the judgment is quoted below:

11. "After giving our anxious consideration to the facts and circumstances of the case and the arguments advanced by the counsel for the parties and judgment delivered both by the Additional Sessions Judge and the High Court of Madhya Pradesh, it appears to us that the fatal injuries had been inflicted by Prakash with the gupti. The gupti was recovered at the instance of the accused and such recovery was not otherwise possible if the accused himself had not assisted for such recovery of the gupti. The said gupti was stained with human blood and no reasonable explanation has been given by accused for such blood stain. The injuries found on the person of the deceased could be inflicted by a gupti and complicity of Prakash in inflicting the fatal injuries by gupti has been corroborated by the eye-witness. There may be some minor discrepancies in the evidence of the eye-witness but so far as the complicity of Prakash is concerned, the depositions of the eye-witnesses were consistent. In discarding the evidence of the brother of the deceased namely Ajay Singh the learned Additional Sessions Judge was influenced by the tender age of Ajay (about 14 years) and was of the view that he was likely to be tutored. We do not think that a boy of about 14 years of age cannot give a proper account of the murder of his brother if he has an occasion to witness the same and simply because the witness was a boy of 14 years it will not be proper to assume that he is likely to be tutored. The High Court has given very convincing reasons for accepting the evidence of Ajay Singh as an eye-witness of the murderous act and we do not find any infirmity in the finding made by the High Court. In so far as the dying declaration is concerned, we are inclined to accept the finding of the High Court that the deceased was alive at least up to half an hour after the assault. He had been taken to the hospital where he received some treatment for about 10-15 minutes. It is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that it was unlikely that he could make any dying declaration. In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with. As a matter of fact, on second thought, the learned Additional Sessions Judge has accepted the dying declaration and has convicted Prakash on the basis of dying declaration. The injuries inflicted by Prakash were very serious on vital parts of the body causing death of the deceased within a very short time. In such circumstances, conviction under  Section 302, I.P.C. and sentence of life imprisonment of the accused Prakash is justified and no interference is called for. In our view, the High Court has taken a very reasonable view in convicting the other accused namely Shiv Narayan under Section 326 read with Section 34, I.P.C. and has considered his case with such sympathy as the said accused deserved by sentencing him for imprisonment for the period already undergone by him, for an offence under Section 326 read with Section 34, I.P.C. We, therefore, find no reason to interfere with the conviction or the sentence passed against the accused Shiv Narayan. The appeals therefore fail and are dismissed. The bail bond of the accused Prakash is discharged and he would surrender and serve out the sentence."

23. In another case reported in 2018 (4) Crimes 238 SC (State of Madhya Pradesh vs. Chhaakki Lal and another the Hon'ble Supreme Court while relying on various judgments held :

22. In our considered view, the High court erred in doubting the testimony of Kesar Bai (PW-1). It would be unreasonable to contend that merely because Kesar Bai (PW-1) is related to the deceased and that there were contradictions in her evidence, her evidence has to be discarded. Discrepancies which do not shake the credibility of the witness and the basic version of the prosecution case are to be discarded. If the evidence of the witness as a whole contains the ring of truth, the evidence cannot be doubted. In Prithu alias Prithi Chand and Another v. State of Himachal Pradesh (2009) 11 SCC 588, it was held as under:-

"14. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217, it was observed that undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the root of the matter and shake the basic version of the prosecution witnesses. A witness cannot be expected to possess a photographic memory and to recall the details of an incident verbatim. Ordinarily, it so happens that a witness is overtaken by events. A witness could not have anticipated the occurrence which very often has an element of surprise. The mental faculties cannot, therefore, be expected to be attuned to absorb all the details. Thus, minor discrepancies were bound to occur in the statement of witnesses." The same principle was reiterated in State of U.P. v. M.K. Anthony (1985) 1 SCC 505.

23. The High court proceeded on the footing that the evidence of Kesar Bai (PW-1) being the solitary witness is not reliable to base the conviction unless corroborated in material particulars. As discussed above, so far as the place of occurrence is concerned, the evidence of PW-1 is amply corroborated by other evidence. It is fairly well settled that it is not the number; but the quality of the evidence that matters. In terms of Section 134 of the Evidence Act, "no particular number of witnesses shall in any case be required for the proof of any fact". The test whether the evidence has a ring of truth is cogent and trustworthy. In Prithipal Singh and Others v. State of Punjab and Another (2012) 1 SCC 10, it was held as under:-

"49. This court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence." The same principle was reiterated in Sudip Kumar Sen alias Biltu v. State of West Bengal and others (2016) 3 SCC 26."

24. In view of the above, the argument of learned amicus curiae for the appellant that simply because P.W.2 is daughter of the deceased and sole eye witness and there are minor discrepancies in the evidence of other witnesses, it is liable to be discarded is not correct. The evidence of P.W.2 is clear and has proved the occurrence and even in her cross examination, the evidence of P.W.2 remained intact. The evidence of P.W.2 has been fully corroborated by the Investigating Officer P.W.4 and P.W.1. Even P.W.1 has proved hat the incident had taken place at the said time and place. Only question is as to whether it was the appellant who gave knife blows to the deceased stands proved by the statement of P.W. 2 corroborated by P.W.4 and P.W.1 as well as by P.W.3 and it has also been corroborated to some extent by D.W.1. Therefore, we are fully in agreement with the findings recorded by the learned Court below. We do not find any good ground warranting interference with the findings of the Court below.

25. For all the reasons recorded above, the appeal being devoid of merit is accordingly, dismissed.

26. Since, Shri Rajesh Kumar Dwivedi, Advocate was appointed as Amicus curiae by this Court, he shall be paid a sum of Rs.20,000/- (Twenty thousand only) as his fee for conducting the case on behalf of the appellant within a period of two months from the date of pronouncement of this judgment.

Order Date :-01.03.2019

P.s.

                            (Karunesh Singh Pawar,J.)	   (Prashant Kumar,J.)