Kaushal vs State Of U.P.
2019 Latest Caselaw 4059 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 22.12.2018
 
Delivered on 03.05.2019
 
Court No. 14
 

 
Case :- JAIL APPEAL No. - 1467 of 2014
 
Appellant :- Kaushal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail, ,Avinash Jaiswal,Gaurav Singh (Ac)
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ghandikota Sri Devi,J.

1. The present appeal has been filed by the accused-appellant Kaushal from Jail being aggrieved by the judgment and order dated 27.02.2014 passed by the learned Additional Sessions Judge, Court No.1, Firozabad whereby the accused-appellant was convicted for the offence under Section 304 I.P.C. and he was sentenced to undergo rigorous imprisonment for 10 years and also to pay the fine of Rs. 2000/-. In default of payment of fine, he was further sentenced to simple imprisonment of 3 months, in Sessions Trial No. 167 of 2011 (State Vs. Kaushal) arising out of Case Crime No. 478 of 2010, P.S. Tundla, District Firozabad.

2. The facts in nutshell as emerged from the prosecution case are that the informant Mukesh Rawat, resident of Nai Basti, M.P. Road, Surmewali Gali, Tundla had given a written report at Police Station Tundla inter-alia stating therein that his neighbour and relative Jagdish Prasad, aged about 75 years was residing in his house, he was having 2 sons, namely, Virendra Kumar and Kaushal. However, his both sons were not mentally stable. Kaushal and Jagdish Prasad have kicked out Virendra Kumar from their house and he used to stay in the village Nagla Walia. As Kaushal is not mentally stable, he used to abuse and assault his father on and often. However, the informant made him to understand several times. On 03.11.2010, Kaushal, during the day time, assaulted his father Jagdish Prasad inside his house and he locked his house from inside and he also put ablaze his house. When Jagdish asked him not to do so, Kaushal attacked him with the hammer and killed him. When the door of the house was not opened till the next morning, on suspicion, when he opened the door along with others, found that Jagdish was already lying dead. He was murdered by Kaushal during night at unknown time.

3. Basing on the written report given by the informant Mukesh Rawat, Case Crime No. 478 of 2010 under Section 304 I.P.C. was registered as P.S. Tundla and the check report was prepared, so also relevant entries were made in the general diary vide Rapat No. 14 at 8.15 AM on 04.11.2010. The investigation of the case was taken up by the S.S.I. of Police Sri Pitam Singh who after taking over investigation of the case had gone to the place of occurrence and prepared the spot map of the occurrence, collected the blood stained and plain soil from the place of occurrence, also recovered the hammer and the piece of burnt Razai into his possession and accordingly prepared the recovery memos. The S.I. of Police Sri Baijnath Singh, under the direction of S.S.I. conducted inquest over the body of the deceased and he also prepared the connecting papers such as challan lash, sample seal, photo lash, letter to C.M.O, etc. The body of the deceased was sealed and dispatched to the District Hospital for post-mortem. The accused-appellant was apprehended and arrested by the I.O. on 05.11.2010, he also recovered the pant and shirt of the accused-appellant, prepared the recovery memo. The post-mortem of the body of the deceased was conducted by Dr. V.P. Kaushik on 04.11.2010 at 3 PM and during the post-mortem examination, as many as 21 ante-mortem injuries were found by him on the body of the deceased.

According to the opinion of the doctor, the death of the deceased might have caused about 1 and ½ day before the post-mortem examination and the cause of the death was ascertained as coma, as a result of ante-mortem injuries over head.

4. The I.O., after completing the formalities of investigation, has submitted charge-sheet against the accused-appellant before the C.J.M., Firozabad. Since, the disclosed offence was exclusively triable by the Court of Sessions, C.J.M., Firozabad vide order dated 05.03.2011 committed the case to the Court of Sessions for trial wherein S.T. No. 167 of 2011 was registered and thereafter the same was transferred to the Court of Additional Sessions Judge, Court No.1, Firozabad for trial. The learned Additional Sessions Judge, Court No.1, vide order dated 13.04.2011, after affording opportunity to both the parties, had framed charge against accused-appellant under Section 304 I.P.C. The accused-appellant abjured the charge and claimed for trial.

5. The prosecution, in order to prove the guilt of the accused-appellant in all, has examined as many as 7 witnesses and out of these 7 witnesses, PW-1 Mukesh Rawat, PW-2 Pawan Kumar, PW-3 Sonu Rawat, PW-5 Girish Kumar have been examined as witnesses of fact and PW-4 Dr. V.P. Kaushik, PW-6 S.S.I. of Police (I.O.) Pitam Singh and PW-7 S.I. Sri Baijnath Singh were examined as formal witnesses.

6. Apart from the oral evidence, prosecution has also relied upon the documentary evidence such as written report (Ex.Ka-1), postmortem report (Ex.Ka-2), spot map (Ex.Ka-3), recovery memo of plain soil and blood stained soil (Ex.Ka-4), recovery memo of the hammer (Ex.Ka-5), recovery memo of the burnt Razai (Ex.Ka-6), recovery memo of the blood stained clothes of the accused (Ex.Ka-7), charge-sheet (Ex.Ka-8), inquest report (Ex.Ka-9), photo laas, challan laas, sample seal, letter to C.M.O. (Ex.Ka-10 to Ka-14), chik F.I.R. (Ex.Ka-15) and copy of the general diary entry (Ex.Ka-16).

Apart from the above, prosecution also got proved the material exhibits, such as hammer as Material Ex.-1, plain soil and blood stained soil as Material Ex.- 2 and 3, shirts of the accused and the deceased as Material Ex.- 4 and 5, pants of the deceased and the accused as Material Ex.-6 and 7, underwear of the deceased as Material Ex.-8, belt of the deceased as Material Ex.-9, watch of the deceased as Material Ex.-10 and rudraksh of the deceased as Material Ex.-11.

7. After closure of the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C. to which the accused denied to have committed any offence and stated that he was falsely implicated in the present case. He has also stated that he was fully dependent upon his father. His father used to keep the accused-appellant with him and used to give him the food. He further stated that since long he was suffering from mental ailment and there was no source of his livelihood. However, he did not adduce any evidence in support of his defence version.

8. Learned Trial Court, after hearing the counsel for the accused-appellant and the prosecution and after perusing the oral as well as documentary evidence on record, in his finding recorded on 25.02.2014, held that the accused-appellant is guilty for the offence under Section 304 I.P.C. and accordingly vide order dated 27.02.2014 sentenced him to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 2000/- as already mentioned in the opening paragraph of this judgment. Hence this appeal.

9. I have heard Sri Avinash Jaiswal, learned Amicus Curiae for the accused-appellant and Sri J.K. Upadhyay and Km. Meena, learned counsel for the State.

10. Learned Amicus Curiae placing the statement of the alleged fact witnesses and the so-called written report submitted by PW-1 contended that the entire prosecution story is concocted and cooked up. The F.I.R. was said to have been lodged by PW-1 on 04.11.2010 at about 8.15 AM with the assertion that, when the door of the house of Jagdish was not opened, some suspicion raised in their mind and when 4-5 persons have peeped into the house from the roof top, they did not find any movement in the house and also found that Jagdish was lying dead. The blood was found in the courtyard and Verandah. Kaushal was sleeping. They also found the blood stained hammer lying in the Verandah. Then they suspected that Kaushal might have committed murder of Jagdish. However, they have not seen the crime and accordingly PW-1 Mukesh Rawat got the report written by one Pramod Sharma by giving him dictation and thereafter he put his signature and thereafter they have gone to the police station and lodged the report against Kaushal.

11. Learned Amicus Curiae pointed out the following contradictions in the version of the alleged eye-witnesses.

12. According to PW-1 Mukesh Rawat, the deceased Jagdish and Kaushal are his neighbours and Kaushal used to abuse and assault his father which was being told to him by the people of his mohalla. However, in his examination-in-chief, he categorically stated that on the date of occurrence, he had not seen Kaushal abusing and assaulting his father Jagdish Prasad, but he heard from the people of his mohalla. He further stated that occurrence took place at the night of 03.11.2010. Kaushal and Jagdish were sleeping inside the Verandah of their house by bolting inside the house. He has seen the burnt Razai and gadda. They suspected when the door of the house of Jagdish was not opened and they also did not find any movement inside the house, they peeped into the house from the roof top and have found Jagdish lying dead and also found the blood stained hammer in the Verandah. Accordingly, he lodged the report.

13. During cross-examination, this witness stated that he met Jagdish Prasad 8-10 days before the occurrence and he was not having talking terms with the accused Kaushal for the last 20 years. About 15-16 years before the occurrence, the elder son of Jagdish became mentally ill so also Kaushal about 3 to 4 years before the occurrence. However, he did not state this thing to the police. Apart from him, the witnesses Girish, Jitendra Kumar, Tanu also had gone to the roof top and peeped into the house. He further stated that Abhishek, Pushpendra, Jitendra and Tirath Ram told him that they have suspected that Kaushal might have killed Jagdish. He could not say at what time Jagdish died before they have peeped into his house. The persons those who have told him about their suspicion, have also not seen Kaushal killing his father. He got the report lodged at about 8-8.15 Am. He got it written at the police station. The Police Inspector did not interrogate him with regard to the incident nor he recorded any statement. They have gone to the roof top at about 7-7.30 AM and thereafter they have gone to the police station, accompanied by Jitendra Kumar, Tirath Ram and his younger brother Pawan and Girish and they have narrated about the position in the police station. Thereafter, one constable and one Darogaji came from the police station, thereafter, they got opened the door and saw inside the house. However, he did not know who opened the gate nor he has gone inside the house, he was standing outside. After 5 minutes, when he was called by the police officer, he went inside. At that time, the accused was sleeping in the Verandah. Jagdish was lying dead at the place where he was sleeping. After about 1-1 ½ hours at about 9-9.15 AM, he along with police officer had gone to the police station. When he had gone to the police station second time, he was accompanied by Abhishek, Pushpendra, Sonu, Girish, etc. so also Pramod Sharma. After returning to the house, he got the report written by Pramod. However, he has not mentioned about the peeping into the house by 4 to 5 persons. He categorically stated that when he has peeped into the house through the roof top, Kaushal was sleeping on the floor of the Verandah and he has also seen that the house was bolted from inside. He got the report written through Pramod at the police station when the police reached at the place of occurrence and after they have reached the police station.

14. Learned Amicus Curiae has also pointed out the following infirmities in the evidence of PW-2. PW-2 has deposed before the Court that his house and the house of Jagdish are situated side by side. Kaushal used to assault his father regularly. On the date of occurrence, Kaushal also assaulted his father and also abused him. On the date of occurrence, he also put the house ablaze to which the Razai and gadda were burnt. He further stated that the police prepared inquest report in front of him. However, during cross-examination he stated that no occurrence had taken place in front of him. He further stated that the inquest report was prepared by the police officer at the place of occurrence so also in the police station and got his signature on the inquest report at the police station so also the signatures of 4-5 persons in front of him. When he put the signature on the inquest report, at the time, the dead body was lying in the house. However, he could not remember whether the police officer got his signatures in the blank papers or on the papers which were duly filled. The police officer got his signatures at about 10-11 AM but he could not say the exact time.

15. In this regard, PW-3 stated that Sonu Rawat deposed before the Court that there was quarrel between Kaushal and Jagdish before the occurrence but it was not known to him whether there was any quarrel between the two on 03.11.2010. He has not seen Kaushal assaulting his father Jagdish. The police inspector did not do any paper work in front of him nor he has recovered anything in front of him. However, police got his signatures on some papers. This witness was declared hostile by the prosecution and being cross-examined by the prosecution counsel, he stated the police did not record any of his statements. When he was confronted with his 161 Cr.P.C. statement, he categorically denied that no such statement was recorded by the police. He categorically stated that he did not go to the place of occurrence hearing the halla.

16. PW-4 Girish Kumar has deposed before the Court that Jagdish and Kaushal used to stay in the same house and they used to quarrel with each other, but this fact was not known to him. He was also not aware of the fact that Kaushal assaulted his father on 03.11.2010. However, he stated that the police have taken some of his signatures on some papers but what was mentioned in the papers it was not known to him. Further, he has identified his signatures on the panchayatnama. This witness was also declared hostile by the prosecution and he was cross-examined to which he stated that the police did not record any of his statements under Section 161 Cr.P.C. He has also stated that the door of the house of Kaushal was not opened in front of him nor he has seen Kaushal killing his father with the hammer. He has not seen the body of the deceased and he has also categorically stated that police did not do any paper work in front of him.

17. Admittedly, there is no eye-witness to the occurrence. The entire case of the prosecution rests only on certain pieces of circumstantial evidence to substantiate the charges levelled against the appellant. The incriminating circumstances relating to the incident, which was given in the evidence before the Trial Court, is the evidence of recoveries of the instrument used in the crime by the accused-appellant and also recovery of the blood stained clothes from the possession of the accused.

18. Another important circumstance basing on which the learned Trial Court convicted the appellant on the basis of the evidence of PW-1 that the deceased was last seen along with the appellant on 03.11.2010. Undoubtedly, in the present case, last seen theory is an important link in the chain of circumstances that would point towards guilt of the accused with some certainty. The last seen theory holds the Court to shift the burden of proof to the accused and the accused is duty bound to offer reasonable explanation as to the cause of the death of the deceased. Now, it has been a well-settled proposition of law drawn by the Hon'ble Apex Court that-:

"It is not prudent to base the conviction solely on the circumstance of last seen theory."

19. The principle of last seen theory should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. In the case of State of Rajasthan Vs. Kashi Ram, 2006 (12) SCC 254, it was held by the Hon'ble Apex Court that-:

"It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution."

20. It is also settled principle that, for basing a conviction on the principle of circumstantial evidence, each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form the chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against guilt is possible.

21. Hon'ble The Apex Court in a catena of decisions held that the Courts have to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for some time, unconsciously, it may happen to be a short step between moral certainty and legal proof. That, there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions.

22. In the light of the above, it is to be seen whether in the facts and circumstances of the present case, whether the Trial Court was right in convicting the accused-appellant solely basing on the last seen theory.

23. According to the prosecution witnesses, the deceased Jagdish was residing in his house along with his son i.e. the accused-appellant and he was found dead in the Verandah of his house on 04.11.2010. Admittedly, as mentioned in the foregoing paragraphs, 4 witnesses of fact have been examined by the prosecution. However, PW-3 Sonu Rawat and PW-4 Girish Kumar did not support the version of the prosecution and accordingly they have been declared hostile. PW-1 Mukesh Rawat was said to be the neighbour of the deceased Jagdish and he lodged the written report on 04.11.2010 with the allegation that on 03.11.2010, Kaushal during the day time assaulted his father Jagdish Prasad inside his house and he locked his house from inside and also put ablaze his house. When Jagdish objected such actions of his son Kaushal, the accused-appellant, attacked him with hammer and killed him. When the door of the house of Jagdish was not opened till the next morning, on suspicion when he along with others opened the door, found that Jagdish was found lying dead. He was murdered by Kaushal during the night at unknown time. However, Mukesh Rawat who was examined by the prosecution as PW-1 deposed before the Court that on the date of occurrence, he had not seen Kaushal abusing and assaulting his father Jagdish Prasad, but he heard from the people of his mohalla. He further stated that the occurrence took place at the night of 03.11.2010. Kaushal and Jagdish were sleeping inside the Verandah of their house by bolting inside the house. He has seen the burnt Razai and gadda. They suspected when the door of the house of Jagdish was not opened and did not find any movement inside the house, they peeped into the house from the roof top and found Jagdish lying dead and also found the blood stained hammer in the Verandah. However, during his cross-examination, he categorically stated that he was not having talking terms with the accused-appellant Kaushal for the last 20 years. He and the other witnesses have suspected that Kaushal might have killed Jagdish. The persons who have told him about their suspicion have also not seen Kaushal killing his father. He was not interrogated by the Investigating Officer and no statement under Section 161 Cr.P.C. was recorded by the police.

24. He categorically stated that the police came to the place of occurrence and got the door opened. He has also categorically stated that when they peeped into the house from the roof top, the accused-appellant Kaushal was sleeping on the floor of the Verandah and also seen that the house was bolted from inside.

25. PW-2 stated that his house is situated adjacent to the house of Jagdish on the date of occurrence, Kaushal assaulted his father and abused him and also put the house ablaze to which the Razai and gadda were burnt.

26. It is the categorical statement of PW-1 that he lodged the written report at 8.15 AM on 04.11.2010. It was got written by one Pramod Sharma. However, during his cross-examination, PW-1 contrary to his statement in the examination-in-chief categorically stated that after seeing Jagdish Prasad lying in the Verandah, they have gone to the police station, narrated about the position and thereafter they came to the place of occurrence along with one constable and one Darogaji. Thereafter, they got opened the door and saw inside the house. However, he did not know who opened the gate. When he was called by the police officer, he went inside the house and the accused was sleeping in the Verandah. After about 1 and ½ hours at 9-9.15 AM, he along with the police officers went to the police station being accompanied by Abhishek, Pushpendra, Sonu, Girish and Pramod Sharma. After returning to the house, he got the report written by Pramod. He further stated that he got the report written by Pramod at the police station when he along with the police and others had gone to the police station.

27. PW-2 Pawan Kumar was also said to be the witness to the panchayatnama of the deceased. This witness stated that the police prepared inquest report in front of him. However, he stated that the inquest report was prepared by the police at the place of occurrence so also in the police station and his signatures were taken on the inquest report at the police station. He categorically stated that when he put signatures on the inquest report, at the time, the dead body was lying in the house. Thus, on careful scrutiny of the evidence of these two witnesses, it is crystal clear that these witnesses have not seen the deceased in the company of the accused-appellant either on 03.11.2010 or on 04.11.2010 when they peeped into the house through the roof top of the house of deceased.

28. In this regard, the Investigating Officer who was examined as PW-6 categorically deposed that when he reached the place of occurrence, he found that the door of the house of the deceased was opened. When he reached the place of occurrence along with other police force, the informant and so many others also accompanied him to the place of occurrence. He categorically denied to the suggestion that when he reached the place of occurrence, he got the bolt of the house of the deceased opened by the informant. He stated that he arrested the accused on 05.11.2010 beneath the bridge of Tundla and at the time of arrest, so many persons were present at the place of arrest. However, he did not make any one of them as witnesses to the arrest of the accused-appellant. He arrested the accused and brought him straight to the police station.

He also stated that when he arrested the accused-appellant, the clothes of the accused-appellant were found with the stains of blood. Accordingly, he also recovered the blood stained clothes of the accused from his possession and prepared the recovery memo. However, the blood stained clothes of the deceased were not sent to Forensic Science Laboratory for chemical examination. He also did not send blood stained hammer for chemical examination.

29. Thus, a perusal of evidence of these three witnesses, I find a lot of material discrepancies in their evidence.

30. According to PW-1 Informant, when the door was opened, they found the accused-appellant sleeping in the Verandah, but according to the Investigating Officer, PW-6, he arrested the accused-appellant on the next day i.e. on 05.11.2010 which proves that there was no such incident occurred on 03/04.11.2010 as alleged by the prosecution. None of the witnesses have seen the accused-appellant either abusing or assaulting his father on 03.11.2010.

31. A bare perusal of the evidence of PW-1, PW-2 and PW-6, it also indicates that the F.I.R. was not registered at the time which was mentioned in the Check Report and the panchnama was also not prepared at the place of occurrence as alleged by the prosecution. A further perusal of the testimonies of the witnesses, it indicates that the F.I.R. was lodged by the informant PW-1 Mukesh Rawat after deliberations and consultations with the police personnel only on the mere suspicion. Nobody had seen the accused-appellant in the company of the deceased on 03.11.2010, or on 04.11.2010.

32. The other incriminating circumstance in this case is that, according to PW-6, he has recovered blood stained pant and shirt of the accused-appellant, after his arrest on 05.11.2010. However, during cross-examination, he has stated that, during the time of arrest, he found some patches of blood on the clothes of the deceased, but he did not send them for chemical examination. He also did not send the hammer for chemical examination. Then, the prosecution did not choose to examine any independent witness to prove the arrest of the accused as stated by PW-6 or the alleged recoveries made by him, which shows that the investigation in this case was done in a slipshod manner.

More, it is the evidence of the prosecution witnesses that, the accused-appellant also set the house ablaze on 03.11.2010. The burnt piece of Razai was recovered and sealed by the PW-6. However, there is no iota of evidence available on record in this regard.

33. Thus, the prosecution has miserably failed to discharge its burden, rather the prosecution could not prove any incriminating circumstance to draw an inference against the guilt of the accused-appellant.

34. Thus in the light of the observations as mentioned above, none of the circumstances relied upon by the prosecution are proved against the accused-appellant. The findings of the Trial Court per se appears to be perverse and illegal, basing on which the conviction of the appellant cannot be sustained.

35. Accordingly, the appeal deserves to be allowed and the same is allowed.

36. The conviction of the accused-appellant Kaushal under Section 304 I.P.C. is set aside.

37. The accused-appellant is in jail and accordingly it is ordered that the appellant be set at liberty forthwith, if he is not required in any other case.

38. Sri Avinash Jaiswal, learned Advocate who was appointed as Amicus Curiae on behalf of the accused-appellant and the Court in hearing of the present jail appeal, for his valuable assistance, he may be paid the fee of Rs. 12,000/-. The said payment shall be made to the learned Advocate by the Registry of this Court within a period of one month.

Order Date-03.05.2019

Nirmal