Kaka And Another vs State Of U.P.
2019 Latest Caselaw 5079 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									AFR												Reserved on 30.4.2019									Delivered on 28.5.2019
 
Court No. - 77
 
Case :- CRIMINAL APPEAL No. - 111 of 2008
 
Appellant :- Kaka And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Anurag Pathak
 
Counsel for Respondent :- Govt. Advocate,Ch. Dil Nisar
 

 
Hon'ble Aniruddha Singh,J.

1. Heard Sri Anurag Pathak, learned counsel for appellants, Sri Chaudhary Dilnisar, learned counsel for complainant as well as Sri Hari Pratap Gupta, learned AGA for the State and perused the record.

2. This criminal appeal has been preferred by Kaka and Sushil under Section 374(2) Cr.P.C. against judgment and order dated 24.12.2007 passed by Additional Session Judge, Fast Track Court No. 5, Saharanpur passed in Session Trial No. 31 of 2007(State vs. Kaka and Sushil) arising out of Case Crime No.193 of 2006, Police Station Nagal, District Saharanpur whereby Kaka and Sushil were convicted under section 304 Part-1I IPC and sentenced to six years' rigorous imprisonment with fine of Rs.1000/- each and in default in deposition of fine, they have to undergo additional three months imprisonment.

3. In the nutshell, according to prosecution case, complainant Dharamveer lodged FIR against Sonu @ Nati, Kaka and Sushil alleging that on 3.10.2006 at 8:30 P.M. on some dispute they assaulted Babloo (son of complainant) mercilessly. Doctor declared him brought dead to the hospital.

4. Postmortem of deceased Babloo was conducted on 4.10.2006 by Dr. S. Singh. He found fourteen injuries(nine abrasions, two multiple abrasions, one contusion and two T.S.) on the body of deceased.

5. Case was registered and after investigation charge sheet was submitted. Cognizance was taken, file was committed to Sessions for trial and charges were framed. During trial Sonu @ Nati was declared juvenile, hence his file was separated. Prosecution examined P.W.-1 Pal Singh, P.W. 2 Mangey Ram, P.W.-3 Dharamveer, P.W.4 Balendra Kumar, P.W.5 Dr. Surendra Singh(Senior Radiologist), P.W.6 Constable 1055 Rajpal Singh, P.W7 S.I. Mehfooz Ali and P.W.8 S.I. Ram Pal Singh(Investigating Officer). Statements of accused were recorded under Section 313 Cr.P.C. D.W.1 Chhotu and D.W.2 Ram Kumar were produced in defence.

6. After hearing learned counsel for accused/appellants and District Government Counsel(Criminal) for the State, impugned judgment and order was passed. Hence this appeal.

7. Learned counsel for appellants submitted that it is a case of no evidence. Prosecution examined three witnesses relating to fact, two of them P.W.1 Pal Singh and P.W.2 Mangey Ram have not supported the prosecution case and turned hostile. According to FIR and statement under section 161 Cr.P.C., P.W.3 Dharmveer is not eye-witness; after thought with legal consultation and making improvement he stated before the Court that he was eye-witness. P.W.3 is also father of deceased and interested witness. Place of occurrence is also not proved. The ocular evidence is not corroborated by medical evidence. The enmity of election of 'pradhani' is admitted. D.W.2 Ram Kumar clearly stated that Sushil was not present at the time of evidence. He is 'mistry and at the time of incident he was working in the house of D.W.2 Ram Kumar. D.W.1 Chhotu clearly proved enmity of Pradhani election between father of deceased and appellants.

8. Learned AGA opposed the contention of learned counsel for the appellants and submitted that there are sufficient evidence to convict appellants.

9. This Court after scanning the evidence on record, has to adjudicate whether the prosecution has proved charges levelled against accused appellants beyond reasonable doubt or not. Word 'proved' is defined under Section 3 of Evidence Act as under:-

"Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

10. The question is whether a prudent man under these circumstances can believe that the facts deposed by the witnesses do exist beyond reasonable doubt.

11. According to FIR, P.W.1 Pal Singh and P.W.2 Mangey Ram are eye-witnesses. It is also admitted in the evidence that deceased was attempted to admit in hospital by P.W.1 and P.W.2. It is also admitted fact that in the FIR and the statement under section 161 Cr.P.C. P.W.3 Dharmveer was neither present nor saw the incident or admitted the deceased in the hospital inspite of the fact that deceased was son of P.W.3. This fact has also been admitted by P.W.8 S.I.Ram Pal (Investigating Officer). He clearly stated that P.W.3 (father of deceased) has not stated before him that he had seen the incident. It is also admitted fact that P.W.1 and P.W.2 have not supported the prosecution case and turned hostile. Nothing has come in cross-examination to prove the prosecution case. Hence, it is admitted fact that only one witness has supported the prosecution case who is father of deceased as well as interested witness. The enmity is also proved by D.W.-1. The status of P.W.3 is as relative and interested witness. In the case of Santosh Devidas Behade vs. State of Maharashtra 2009(4) Supreme 380 it has been held that the testimony of witnesses in a criminal trial cannot be discarded merely because witness is a relative or family member of the victim of the offence. In this case, the Court has to adopt a careful approach in analysing such witness and if testimony of the related witness is otherwise found credible, accused can be convicted on the basis of testimony of such related witness. It is very clear that careful approach and close scrutiny is necessary.

12. Recently, in the case of State of Maharashtra vs. Dinesh reported in AIR 2018 SC 2997 it was observed that it cannot be held that testimony of sole eye-witness cannot be relied upon or conviction of the accused cannot be based upon statement of sole eye-witness of the crime. All what is needed is that the statement of sole eye-witness should be reliable, should not be any doubt in mind of the Court and has to be corroborated by other evidence produced by the prosecution in relation to commission of crime and involvement of the accused in committing such crime. It is well settled that it is the quality of evidence and not the quantity of the evidence which is required to be judged by the Court.

13. It is also proved by D.W.1 that P.W.3 is inimical witness. In the case of State of U.P. vs. Sheo Sanehi, 2005(52) AC 113(SC) the Apex Court held that the possibility of falsely involving some persons in the crime or exaggerating the role of some of the accused by such witnesses should be kept in mind and ascertained on the fact of each case. Hence proper scrutiny is necessary.

14. From perusal of evidence of P.W.3, it has come that he admitted in his cross-examination at page 2 that when the accused persons came he was inside the room; later on he stated that he came out from the room and was standing outside the door. This fact was stated by him to the Investigating Officer and if he had not written, he cannot say anything. On several points, he stated that he informed the investigating officer that the I.O. has not noted the fact. He also admitted in cross-examination that his statement under Section 161 Cr.P.C. was recorded immediately after the incident. He further stated that at that time he was unconscious for 4-5 minutes. Hence it is unnatural that he has seen the incident but it was not written in the FIR as well as in the statement under Section 161 Cr.P.C. It clearly denotes that on this issue statement of P.W.3 is completely covered in the definition of 'improvement' as held by Apex Court in the case of Yudhishtir vs. State of Madhya Pradesh reported in (1971)3SCC 436.

15. It is pertinent to mention here that P.W.3 clearly admitted on page 4 in his cross-examination that he tried to save his son but due to unconsciousness he was unable to do so. He further admitted that his son was tried to be admitted by Pal Singh and Mangey Ram and not by him. These facts also denote that presence of P.W.3 at the time of incident is completely doubtful. It is natural, if the son of any person is being killed by some other persons, he will try to save him and try to take him to the hospital immediately as soon as possible; but in this case, it is admitted fact that it was not done by P.W.3(father of deceased). It is completely unnatural, unbelievable and explanation on this issue given by P.W.3 is also not satisfactory.

16. It is pertinent to mention here that at page 5 in cross-examination P.W.3 stated that about unconsciousness he informed the Investigating Officer for being written in the FIR, but it was not written and he cannot say anything why he had not written in the FIR.

17. P.W.3 also stated that some accused persons have assaulted his son on his private part. This fact was neither written in the FIR nor in statement recorded under Section 161 Cr.P.C. and no injury was found on private part of the deceased. It also denotes that explanation given by P.W.3 was after thought and with legal consultation.

18. According to postmortem report, deceased received 14 injuries but most of them were simple in nature. The incident is of 8:30 P.M.(night). It appears that nobody has seen the incident and later on, FIR was lodged against three persons. No source of light was shown in the FIR as well as in statement under Section 161 Cr.P.C. It is also important issue on this point.

19. If place of occurrence as stated in the FIR is compared to map and statement of P.W.3, there are several major contradictions. There are also major contradictions between ocular evidence as well as medical evidence/postmortem report of deceased.

20. It is admitted fact that P.W.1 and P.W.2 are eye witnesses shown in the FIR as well as in statement under section 161 Cr.P.C. P.W.1 and P.W.2 both tried to save deceased and attempted to admit in hospital but they stated before the Court that they were not present at the time of incident and their names as witnesses were shown by P.W.3 falsely. Nothing was seen by P.W.1 and P.W.2.

21. Learned counsel for appellants submitted that due to some reason or other, some unknown person had assaulted deceased at 8:30 P.M.(night), due to enmity of 'Pradhani election' which is admitted and proved by D.W.1 FIR was lodged against the appellants, nobody has seen the incident.

22. There is no motive to kill the deceased. According to prosecution case, some dispute arose between two children, resultantly the incident happened. FIR was lodged falsely against three named persons on the basis of suspicion and previous enmity, after evidence of P.W.1 and P.W.2 when they did not support the prosecution case and turned hostile. P.W.3 himself stated that he was the eye-witness and had seen the incident which is improvement made by him after thought & with legal consultation, this Court found that only on the basis of evidence of P.W.3 which is not wholly reliable witness, conviction of appellants cannot be said to be justified.

23. It is also admitted fact that except evidence of P.W.3 there is no evidence in this case. Presence of P.W.3 is doubtful as stated above. Hence this is a case of no evidence. Other witnesses including P.W.8 S.I. Ram Pal Singh(Investigating Officer) has admitted this fact that P.W.3 is not eye-witness, nothing has been seen by him. In these circumstances as stated above, this Court finds that charges levelled against appellants are not proved beyond reasonable doubt and appellants are liable to be acquitted.

24. In the above backdrop, Criminal Appeal is allowed and impugned judgment and order dated 24.12.2007 is hereby set aside. Appellants Kaka and Sushil are acquitted of charges levelled against them. Their bail bonds are cancelled and sureties are discharged from their liabilities. Appellants are directed to file personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance of Section 437-A of Cr.P.C.

25. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned within three days for necessary compliance. Compliance report be sent to this Court which shall be kept on record.

Order Date :-28.5.2019

P.P.