Kautik Mahaley vs State Of U.P.
2021 Latest Caselaw 10149 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.		
 
Judgment  Reserved on 26.07.2021
 
Judgment Delivered on 12.08.2021
 
Court No. - 78
 

 
Case :- CRIMINAL APPEAL No. - 1110 of 2016
 

 
Appellant :- Kautik Mahaley
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Noor Muhammad,Yogesh Kumar Srivastava
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Syed Aftab Husain Rizvi,J.

1. Heard learned counsel for the appellant and learned A.G.A.

2. This criminal appeal arises out of judgment and order dated 05.01.2016 passed by the Additional Session Judge/Special Judge (D.A.A. Act), Jhansi in S.T. No.84 of 2014 arising out of Case Crime No. 123 of 2013, Police Station- Sadar Bazar, District- Jhansi, convicting the appellant (accused) under Section 304 (1) IPC and sentencing him to undergo rigorous imprisonment for 10 years and a fine of Rs. 15,000/- and in default of payment of fine, six months rigorous imprisonment.

3. In brief the prosecution case is that complainant Smt. Deepika presented an application dated 13.12.2013 at Police Station- Sadar Bazar, Jhansi alleging therein that her husband is Sepoy in the Army and posted at Jhansi. In the evening of 7/8-12-2013 at 7 p.m. her husband in drunken condition came to the house. After taking dinner complainant with her three children, mother-in-law Narmada Bai and mother Lalita went to sleep at 10 p.m.. At about 3 a.m. she woke up on hearing some shrieks then she saw her husband standing beside the cot of her mother holding a Gaiti in his hand. Her mother was lying on the cot bleeding from her head. She came outside and told her neighbour Abhijeet Pal about the incident. Thereafter, other military personnel came there and took her mother to medical college, Jhansi where she died. Post-mortem was conducted on 08-12-2013. Her mother had come to Jhansi on 26-11-2013 on the occasion of birthday of her son Soham and after 4-5 days her husband in drunken condition quarreled with her mother. On 27th May 2013 her husband Kautik Mahaley has badly beaten her and she was admitted in military hospital for 8 days. On her complaint of this assault he was punished by the Army for one month of quarterguard. Due to above reasons her husband in a drunken condition assaulted her mother Smt. Lalita and injured her causing her death. On receiving information, her maternal uncle Rajesh Aabhad came to Jhansi in the night of 08-12-2013 and on 09-12-2013 she went to Nasik with the dead body of her mother for performing her last rites. On returning from Nasik, now she is giving information. On the aforesaid application Case Crime No.123 of 2013, under Section 304 I.P.C. was registered at Police Station- Sadar Bazar. Inspector Baljeet Singh started the investigation. He visited the place of occurrence and at the instance of complainant recovered blood stained Gaiti the weapon used in the offence from the inner courtyard of her house, sealed it and prepared the memo. He also took the blood stains "Nivad" of the cot and prepared a memo, prepared the site plan, recorded the statement of the complainant and other witnesses. Case was further investigated by Inspector Mahendra Pratap Singh who completed the investigation and submitted charge sheet against the accused Kautik Mahaley under Section 304 I.P.C.

4. The trial court framed charge against accused under Section 304 I.P.C. who denied it and claimed for trial. The prosecution examined nine witnesses. The statement of accused under Section 313 Cr.P.C. was recorded in which the accused denied the prosecution case and said that he has been falsely implicated and he has not killed Smt. Lalita. No evidence in defence produced by the accused. The trial court after hearing the arguments of the parties by the impugned judgment has convicted the accused-appellant.

5. Learned counsel for the appellant submitted that the F.I.R. has been lodged after five days of the incident so there is much delay and prosecution has failed to give any explanation of the delay. Four witnesses of fact PW-1 Smt. Deepika, PW-2 Rajesh Aabhad, PW-3 Abhijeet Pal and PW-9 Preetam Singh have not supported the prosecution version and have become hostile. Learned trial court only on the basis of statement of PW-4 Major Abhay Juyal has held the appellant guilty. The aforesaid witness has only stated that when on the information he reached on the spot, the wife of the accused Smt. Deepika said to him that his husband Kautik Mahaley has killed her mother, don't spare him. Learned counsel for the appellant submitted that this witness is not an eye witness and he has not seen the incident. His evidence is based on the statement of complainant PW-1 Smt. Deepika who herself has not supported the prosecution version and has become hostile. So the statement of PW-4 Major Abhay Juyal has no value and cannot be relied. There is no other evidence on the record against the accused. It is further submitted that the learned trial court has also invoked Section 106 of the Evidence Act observing that the offence has been committed inside the house and it is on part of the accused to explain the circumstances under which the deceased has suffered injuries. The learned trial court has failed to appreciate that the accused was not alone and other persons were also present at the time of incident. Section 106 of the Evidence Act cannot be applied in the present case and learned trial court has erred in doing so. The findings recorded by the learned trial court is per se illegal and perverse. The prosecution has completely failed to establish its case against the appellant and the findings arrived by the learned trial court is based on surmises and conjectures and such the impugned judgment and order of conviction is not sustainable.

6. Learned A.G.A. submitted that although complainant and three other witnesses namely, PW-2 Rajesh Aabhad, PW-3 Abhijeet Pal and PW-9 Preetam Singh have not supported the prosecution version, PW-4 Major Abhay Juyal has fully supported the prosecution case. His oral statement that when he reached on the spot, complainant said to him that her husband Kautik Mahaley has killed her mother, don't spare him, is admissible in evidence. The incident is of inside the house and F.I.R. has been lodged by the wife of the accused implicating the accused-appellant in clear terms but later on just to save her husband she has retracted from her earlier statement. But from the evidence on record it is proved beyond reasonable doubt that accused is the author of the crime. Learned trial court has fully discussed the entire evidence and after appreciation of evidence has rightly held the accused guilty. The findings recorded by the trial court does not suffer from any infirmity and appeal has no force.

7. Post-mortem of the deceased has been conducted on 08.12.2013 at 03:30 p.m. by Dr. Rajeev Singh Bhadauriya who has been examined as PW-5 and has proved the post-mortem report Ex-Ka.3. According to which the height of the deceased was 151 cm. Rigor mortis was present all over the body. Following Anti-mortem injuries were found on the body:

(1) Lacerated wound, 3 cm. x 2 cm. bone deep was present on the left side of the head. 10 cm. above the left ear.

(2) Lacerated wound, 7 cm. x 2 cm. bone deep on the left side of head, 5 cm. above the left ear.

In internal examination, parietal bone was fractured. Brain and its membrane were lacerated. Clotted blood was present. Near about 100 gm. pasty food was present in the stomach. Faceal matters and gases were present in the intestine.

In the opinion of the doctor, the cause of death was anti-mortem head injuries and duration of death was about half day.

From the medical evidence on record it is clear that deceased has suffered lacerated wounds on her head which caused her death and her death is homicidal. Learned counsel for the appellant contented that prosecution case is that injuries have been inflicted by a Gaiti while the deceased has lacerated wounds on her body which is not possible from Gaiti which is pointed weapon and will cause stab/penetrated wounds. So there is contradiction between the medical and oral evidence. This argument has no force as the nature of the injuries depends upon the manner in which weapon has been used. If it is used from blunt side it may cause lacerated wounds. So there is no contradiction or discrepancy.

8. As per version of the F.I.R., the incident has occurred in the intervening night of 7/8-12-2013 at about 03 a.m. inside the house of the complainant. To prove its case, prosecution has examined nine witnesses. PW-1 Smt. Deepika, PW-2 Rajesh Aabhad, PW-3 Abhijeet Pal and PW-9 Preetam Singh are public witnesses of fact. PW-1 Smt. Deepika in her examination-in-chief has stated that the incident is of night of 7/8-12-2013. She along with her three children, mother-in-law Narmada Bai and Mother Smt. Lalita was sleeping in her house. In the night of 7/8-12-2013 at about 03 a.m. she woke up on shrieks and reached near here mother's cot. She saw that her mother was bleeding. At the same time, a person holding a Gaiti ran away from there. Due to darkness she could not identify the person. Her husband came on the spot. She and Army personnel took her mother to medical college where she died. She has further stated that she has not seen her husband holding Gaiti near her mother. Regarding the F.I.R., the witness has stated that some army personnel got her signature on typed paper which was not read over to her. She has not told anyone that her husband has killed her mother. The witness has identified her signature on the Teharir (Ex.Ka-1). So, this witness has not supported the prosecution case and has become hostile. She has also disowned the contents of the F.I.R. but has admitted her signature on it.

PW-2 Rajesh Aabhad the brother of the deceased, in his examination-in-chief has stated that on receiving information from Smt. Deepika that someone has killed her mother in the night, he reached Jhansi in the morning of 08.12.2013. He has further stated that after performing last rites of her sister at Nasik, he returned back Jhansi on 13.08.2013. Some army personnel got the signature of Smt. Deepika on an application and took Deepika and the witness to the police station where application was submitted. He has not read the application. He has admitted his signature on the memo of taking blood stains, Nivad by the Investigating Officer. The witness has been declared hostile on prayer of prosecution.

PW-3 Abhijeet Pal in his examination-in-chief has stated that he was posted as Lance Naik and in the night of 7/8-12-2013 at about 03 a.m. on hearing noise from his neighbour Kautik Mahaley's house, he went there. Kautik Mahaley and his wife were standing outside the house. Smt. Deepika told her that someone has injured her mother. She was lying on a cot. He informed the higher authorities and after arranging vehicle she was taken to hospital where doctor declared her dead. This witness has also been declared hostile on prayer of prosecution.

PW-4 Major Abhay Juyal in his examination-in-chief has stated that on 7/8-12-2013, he was posted as major in Army at Jhansi and in the night at about 03:30 a.m. he got information from Amit Pal that some incident has occurred at the house of Sepoy Kautik Mahaley and his wife is crying outside the house. When he reached at the Government residence of Kautik Mahaley and went inside, he saw that the mother-in-law of Kautik Mahaley was lying injured on cot and she was bleeding from head and mouth. He took her to medical college Jhansi on his Gypsy where doctor declared her dead. The witness has further stated that when he reached at the place of occurrence, wife of Kautik Mahaley Smt. Deepika who was not in her senses met and said to him that, "her husband Kuatik Mahaley has killed her mother, don't spare him." The witness has further proved his signature on the Panchayatnama Ex.Ka-2.

PW-9 Hawaldar Preetam Singh in his examination-in-chief has said that on 7/8-12-2013 he was posed as Platoon Hawaldar at Jhansi and in the night between 03-03:45 a.m. Sepoy Kautik Mahaley of the unit has not came there and he has not admitted Kautik Mahaley in the hospital. So this witness has also been not supported the prosecution.

9. Another peace of evidence which has been produced by the prosecution is the recovery of Gaiti used in the crime. PW-6 Sub-Inspector Baljeet Singh who is the Investigating Officer has said in his statement that at the instance of complainant the weapon (Gaiti) used in the offence was recovered from the place of occurrence and the recovery memo was prepared at the spot. The witness has proved it as Ex. Ka5. The weapon recovered has been sent to the Forensic Lab along with other articles for examination and according to the Forensic Lab report the blood stains on it were found disintegrated. So it is not established that the recovered Gaiti has been used in the offence. The remaining statement of PW-6 Sub-Inspector Baljeet Singh is of formal in nature being Investigating Officer he has stated the steps taken during investigation and has proved the papers prepared by him. PW-8 Sub-Inspector Mahendra Pratap Singh is also the Investigating Officer who has submitted the charge sheet and has proved it while PW-7 Shiv Narain is Chik and G.D. writer who has registered the case on the basis of application of the complainant and entered its proscription in the G.D. and has proved the papers.

10. Out of 5 public witness of facts produced by the prosecution, four witnesses, PW-1 Smt. Deepika, PW-2 Rajesh Aabhad, PW-3 Abhijeet Pal and PW-9 Preetam Singh have not supported the prosecution case. It is worth of mentioning that complainant is the wife of the accused and the incident is of inside her house. The witnesses have reached on the spot on her hue and cry but under the influence of the accused, the complainant herself and three other witnesses namely PW-2 Rajesh Aabhad, PW-3 Abhijeet Pal and PW-9 Hawaldar Preetam Singh have not supported the prosecution case. It is natural on part of the complainant being wife of the accused not to support the allegations made in the F.I.R. just to save her husband, but from the statements of the aforesaid witnesses, date, time and place of the incident is proved and there is no confusion or discrepancy regarding this. So it is proved from the oral testimony of aforesaid witnesses that in the intervening night of 7/8-12-2013 at about 03 a.m. inside the house of the complainant her mother Smt. Lalita suffered injuries while lying on the cot and she succumbed to the injuries. At that time, the complainant, her three children, mother and mother-in-law were inside the house and accused was also present there. From the statement of PW-4 Major Abhay Juyal, it is also proved that on receiving information, when he reached on the spot just after the occurrence, complainant Smt. Deepika and her husband accused Kautik Mahaley were standing there and the complainant Deepika said to him that "her husband Kautik Mahaley (accused) has killed her mother, don't spare him."

11. The aforesaid statement of PW-4 Major Abhay Juyal clearly comes in the preview of the illustrations (a) of Section 6 of the Evidence Act, which is as fallows:-

"6. Relevancy of facts forming part of same transaction.--Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

Illustrations

(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact."

The trial court has rightly relied on the evidence of PW-4 Major Abhay Juyal who is an independent witness and not related to either the deceased or the accused-appellant. As per the testimony, complainant Smt. Deepika soon after the incident has made a statement that her husband has killed her mother, a statement which can be relied in terms of Section 6 of the Evidence Act, since, the statement being res-gestae which is exception to the rule of heresay evidence.

12. The Apex Court in the case of Gentela Vijayauardhan Rao Vs. State of A.P. reported in 1996 (6) SCC 241, has held as under:

"The principle of law embodied in section 6 of the Evidence Act is usually known as the rule of res gestae recognized in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue as to form part of the same transaction that it becomes relevant by itself. This rule is roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however, slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae."

13. Similar view was taken in the case of Parsadi Ram Vs. State of M.P. (Chhattisgarh) reported in 2007 (1) F.J.C.C. 145, further adding that in order to hold the statement res-gestae, it has to be remembered that the statement should be reasonable, contemporaneous and also spontaneous.

14. On examination of the evidence of PW-4 and applying the law laid down, the Court finds PW-4, is an independent witness, whose evidence is reliable; moreso, there has been no motive which has been attributed to him nor there is any suggestion that there was any enmity between this witness and the appellant, to falsely implicate the appellant. The arguments advanced by the learned counsel for the appellant is this regard have no force.

15. The delay in lodging F.I.R. has been explained in the F.I.R. itself and the explanation is satisfactory. Complainant being resident of Maharastra after death of her mother took her body to her native place for performing last rites and when she returned from there she has lodged the F.I.R. So, the delay in lodging the F.I.R. does not adversely affect the prosecution.

16. The learned trial court has observed that incident is inside the house of accused, so Section 106 of the Evidence Act, the accused has to explain the circumstances under which Smt. Lalita suffered injuries but the accused has failed to explain the circumstances and so adverse inference under Section 106 of Evidence Act can be drawn against him. Even if these observations of the learned trial court is not taken into consideration, even then from the oral testimony of PW-4 Major Abhay Juyal and other evidence on record, the case of the prosecution stands proved and it can safely be inferred that it is accused and only accused who is the author of the crime.

17. The learned trial court has properly appreciated the entire evidence and there is no perversity or infirmity in the finding recorded by the learned trial court. The learned trial court has rightly held the accused guilty and convicted him. The sentence passed by the trial court is also appropriate. There is no force in this appeal which is liable to be dismissed.

18. The criminal appeal is hereby dismissed.

19. Lower court record along with copy of the judgment be transmitted immediately to the trial Court.

Order Date :- 12.08.2021

Krishna*