Subrati vs State Of U.P.
2021 Latest Caselaw 11102 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
RESERVED ON 9.8.2021
 
DELIVERED ON 17.9.2021
 
Court No. - 27
 
Case :- CRIMINAL APPEAL No. - 254 of 1999
 

 
Appellant :- Subrati
 
Respondent :- State of U.P.
 
Counsel for Appellant :- V.N. Shukla, Abhishek Misra, Shishir Pradhan
 

 
Hon'ble Karunesh Singh Pawar,J.

1. Present criminal appeal under Section 374 CrPC has been filed against the judgment of conviction and sentence dated 18.3.1999, passed by Additional District & Sessions Judge, Barabanki in Sessions Trial No.448 of 192, Case Crime No.138 of 1991 under sections 364, 302, 379 I.P.C., P.S. Kursi, district Barabanki whereby and whereunder the appellant accused Subrati has been convicted and sentenced to undergo six years R.I. and to pay a fine of Rs.2000/-, with default stipulation, under Section 364 I.P.C. Other accused persons Subrati, Taukeer and Abul Hassan have been acquitted of the charges framed against them.

2. Heard learned counsel for the appellant Mr. Abhishek Mishra, learned Additional Government Advocate for the State Mr. Ashok Kumar and perused the record.

3. Prosecution case as per the first information report is that the informant Shashibhal Tripathi son of Brijbhushan is a resident of village Khanwaha, P.S. Deva, district Barabanki. Around three years ago, one Malik of Gausar was killed in village Kutlupur, P.S. Fatehpur, in which, son of the complainant was made accused. Since then, the entire family of Malik was inimical towards the family of the informant.  It is for this reason that the son of the informant used to live in Lucknow and come home frequently. Today, at about 8.00a.m., he came home from Hero Honda. Subrati came to his house and asked him to accompany him to go to Gramsevak for urgent work. His son went with Subrati on Hero Honda. Then he received information that his son has been killed at 11.00a.m. in village Garhi, Mauja Kursi. Thus, the informant has suspicion that his son has been killed by Tauqeer, his father  Abdul Hassan, resident of police station Kursi.

The first information report was registered on 2.12.1991 at 12.10p.m. and Case Crime No.138 of 1991 under sections 364, 302 I.P.C. has been registered.

4. The investigating officer inspected the place of occurrence, took the statement of prosecution witnesses, prepared site plan and after completing the formalities filed charge-sheet in the court of competent jurisdiction. After committal of the case to the Court of Sessions, charges were framed.

5. The prosecution to prove its case has produced as many as seven witnesses, viz. P.W.1 Shashibhushan Tripathi, P.W.2 Smt. Malti Tripathi, mother of the deceased, P.W.3 Smt. Rajkumari, wife of deceased, P.W.4 Dr. B.K. Verma who conducted the post mortem of the deceased, P.W.5 S.I. Shivdatt Singh, P.W.6 Azam Ali Khan who prepared the panchayatnama, Ext. Ka-7 and P.W.7 S.I. Rama Shankar Yadav who had investigated the case and filed charge-sheet.

6. P.W.1 in his examination-in-chief stated that around six years ago, one Malik, A.D.O.M.I. was killed in which his son Satish (deceased) was made accused and for this reason, the family of Malik was inimical to them. His son used to live in Lucknow because of fear. At the time of death, he was having a job of cycle in Mall kasba. He was having friendship with accused Subrati. Abul Hassan is the father of deceased Malik. Subrati was in collusion with Abul Hassan. His wife asked the deceased Satish  not to have friendship with Subrati as he is in tie with Abul Hasan and others. The day  deceased was killed, he came to him at about 8.00a.m. from Lucknow. Subrati came to call his son and said that they have to go to Block Deva. Both of them went on Hero Honda motorcycle to meet Gram Sevak. Thereafter, the complainant came to know that his son has been killed at around 11.00a.m. It is stated by the witness that his son has been killed by Subrati in collusion with Abul Hassan and Tauqeer. He has proved the written report, Ext. Ka-1.

In the cross-examination, witness has stated that Subrati used to often come to his residence when Satish was at home. His son was in the business of engine and cycle. On the date of incident he was at home and he(P.W.1) was also present. After 10-15 minutes of arrival of his son at home, Subrati came and on the pretext of meeting with Gram Sevak took him. Both of them often used to come and go together. Subrati used to get the loan sanctioned to the farmers and provide engines (pumping sets). It is further stated by the witness that his son had gone with Subrati at about 8.30a.m..Information regarding murder of his son was given by Rahmati, brother of Subrati at Deva. Then he says that he named the accused persons on the basis of suspicion. It is further said that he does not know whether ADOMI was having friendship with his son or was inimical with him. He then said that there has never been any enmity between his son and Subrati, nor it is today. He is also not aware whether Abul Hasan and Taqeer were inimical to his son or not. There has been no enmity between Abul Hasan and others with him or his son. Motorcycle has not been recovered from the spot/place of occurrence and till date, it has not yet been recovered.

7. P.W. 2 Smt. Malti Tripathi is the mother of deceased Satish. This witness being the wife of the complainant Shashibhan Tripathi also deposed in tune with that of the complainant. She deposed that the incident of murder of Malik, in which her son was made an accused. Subrati was in friendship with Abul Hasan and Tauqeer. The accused and her son were friends. She had also warned her son not to be in the company of Subrati as the latter had good terms with Abul Hasan and others. The witness has further stated that her son would live in Lucknow due to his being an accused in the murder of Malik. On the day of murder, her son came home at 8.00a.m. It was Subrati who called her son who was having tea. The moment he came, Subrati said that hurry up, they have to meet Gram Sevak. The deceased went with Subrati on Hero Honda motorcycle. Due to murder of ADOMI, in which her son was accused, Tauqeer and Abul Hassan were inimical to her son.

In cross-examination, the witness has stated that Subrati often used to come to her house 3-4 times a day as he was having friendship with her son since childhood. She also stated that in the murder of her son, according to the villagers, Tauqeer and Abul Hassan are involved. That is why, the witness had also suspected. Her son often used to go with Subrati on motorcycle. It is true that on the basis of suspicion and on saying of some persons, the names of Tauqeer, Abul Hassan have been told to investigating officer. The killers had taken the motorcycle of her son/deceased. It is also true that the rings, money, watch etc the deceased had at the time of incident were looted. 

8. Another fact witness P.W.3 Smt. Rajkumari who is the wife of the deceased Satish Chandra Tripathi has stated on oath that three years before, Malik was murdered and it was suspected that her son was involved in the said murder and thereby, the brother of Malik, Tauqeer had inimical terms with her son. The witness stated that Tauqeer and Subrati are friends. On the day of the incident, Subrati had come to her house and called her husband. At that time, she was not at home.

In her cross-examination the witness has stated that Subrati would come to her home very frequently. Subrati used to get engines financed. The motorcycle has also been looted on the date of murder, which has not been recovered till date. Her mother-in-law told that in the murder of her husband, Subrati, Tauqeer and Abul Hassan are involved. This has been told by her mother-in-law on the basis of suspicion.

9. P.W.4, P.W.5, P.W.6 and P.W.7 are the formal witnesses.

P.W.4  Dr. B.K. Verma who conducted the post mortem of the deceased Satish proved the Ext.Ka-2, i.e. the post mortem report. In his cross-examination, Dr. Verma has sated that the shot of fire was made from the distance of 5-6'

10. P.W.5 S.I. Shiv Datt Singh proved Ext. Ka.3.

11. P.W.6 Azam Ali Khan who prepared panchayatnama proved it as Ext.ka-7. In his cross-examination, the witness stated that the statement of the informant and Vimlesh Kumar was recorded after preparation of panchayatnama. Vimlesh Kumar is an eye-witness. Vimlesh Kumar has stated before him that he recognises the culprits and he can identify them, on seeing.

12. P.W.7 is S.I. Rama Shankar Yadav who investigated the case and filed charge-sheet, Ext. Ka-7.

13. Statement of the accused has been recorded under Section 313 CrPC, in which his case is of denial.

14. Trial Court after hearing the parties and perusal of the record as well as appreciation of evidence(s) has convicted the accused appellant and sentenced him under Section 364 I.P.C.

15. While assailing the judgment of conviction, appellant's counsel has submitted that there is no direct or circumstantial evidence against the accused appellant in this case. The appellant has been falsely implicated. No motive has been attributed by the prosecution to the appellant. While putting question No.6 from the accused in his statement under Section 313 CrPC the specific question that on 2.12.1991 when the deceased Satish came from Lucknow to his home, then accused Subrati under the pretext of meeting with Gram Sevak has taken the deceased from his house with an intention to kill or commit his murder has not been put; rather it has been pointed out that it has revealed in the statement of the prosecution witnesses that on 2.12.1991 in the morning when Satish has come to his home village Sanwaha from Lucknow, Subrati under the pretext to meet Gram Sevak took Satish with him. On this, the accused Subrati replied, "galat", i.e. wrong. which is a serious infirmity in the judgment.

Again, while putting question No.12, the specific evidence of particular witnesses has not been put to him; rather collectively in one line, the entire evidence of prosecution  has been vaguely put to him which is not proper. It is contended that the appellant has been implicated due to enmity. It is lastly contended that the deceased has been murdered by unknown assailants and his motorcycle, money as well as watch etc have been looted out and thus, it is a case of loot, might have been committed by some strangers.

16. Learned Addl. Government Advocate has supported the judgment and submitted that the prosecution has been successful in proving the case against the accused appellant.

17. I have considered the submission advanced by appellant's counsel, learned Addl. Government Advocate and gone through the judgment rendered by the trial Court as also perused the lower court's records.

18. A perusal of the judgment and order under appeal reveals that the trial Court while acquitting the accused persons, namely Subrati, present appellant, Tauqeer and Abul Hassan for the offence under Section 302, read with Section 34 and Section 379/34, has held the appellant Subrati guilty of offence under Section 364 I.P.C. on the only ground that he had taken the victim Satish from the latter's home on motorcycle at about 8.00 in the morning. In the first information report, the appellant has not been named, nor any suspicion has been raised as against him. 

19. Before proceeding further, it would be appropriate to go through the ingredients of Section 364 I.P.C. to prove the offence. To quote Section 364 I.P.C. :

"364. Kidnapping or abducting in order to murder.-Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

20. A bare reading of the definition of Section 364 I.P.C. depicts that the ingredients of the said offence are (1) abduction/kidnapping by the accused must be proved; (2) it must also be proved that he was kidnapped in order to ; (a) that such person may be murdered; or (b) that such person might be disposed of as to be put in danger of being murdered. The intention for which a person is kidnapped must be gathered from the circumstances attending prior to, at the time of and subsequent to the commission of the offence.

21. In the case in hand, the deceased Satish being friend of the appellant had gone with the appellant on his motorcycle, as usual, on being called by the latter in the morning. Except being called by the appellant, there is nothing on record to show that the appellant is in any way involved in the commission of alleged offence. The action of the accused appellant in taking the victim on the motorcycle with a view to meet Gram Sevak cannot attract the necessary ingredients of either the offence of kidnapping or abduction so as to attract Section 364 I.P.C. as held by Hon'ble Supreme Court in Chunda Murmu versus State of West Bengal (2012)5 SCC 753. In this context, it is relevant to quote para 18 as under :

"18. Insofar as the offence under Section 364 IPC is concerned, we have considered the materials on record on the basis of which the aforesaid offence has been held to be proved. According to us, the action of the accused in bringing back his wife to the matrimonial home from the house of PW 6  Bishu Murmu cannot attract the necessary ingredients of either the offence of kidnapping or abduction so as to attract Section 364 IPC.

From the above case law as well as the ingredients of Section 364 I.P.C., it is evident that to establish an offence punishable under Section 364 I.P.C., it must be proved that the person charged with the offence had the intention at the time of the abduction that the person abducted would be murdered or would be so disposed of as to be put to danger of being murdered. In this case, the prosecution had to prove that the appellant accused at the time when he took away the victim Satish had this particular intention. On this element of the offence, no finding has been recorded by the trial Court.

22. It is further significant to note that Malik who was the son of Abul Hassan and brother of Tauqeer was killed three years back, in which the present appellant was made an accused.  In case it is taken to be true, for argument's sake, that due to alleged involvement of the victim, the relations between family members of deceased Malik and the victim were not good,  but it cannot reasonably be inferred that after three years of the incident of murder of Malik, the incident of murder of Satish can be committed with a view to wreak vengeance, at the instance of the appellant who was in friendship with the victim since childhood.

23. P.W.1 Shashi Bhan Tripathi in his statement has deposed that there has never been any enmity between his son and the appellant Subrati, nor it is today. The mother of the deceased whose statement has been recorded as P.W.2 too has stated that Subrati used to come her home 3-4 times a day, since childhood.  Thus, it is proved beyond doubt that Subrati and the victim were the real friends.

P.W.3 who is the wife of the deceased has stated that she was not at home at the time her husband went with Subrati. She received the information of murder of her husband in the evening at about 4.00p.m. Although she deposed that in the murder of her husband, Subrati, present appellant, Tauqeer and Abul Hassan are involved, but she has also stated that she is telling the names of the accused on the basis of suspicion as told by her mother-in-law.

24. It is further important to note that though P.W. 6 Azam Ali Khan who prepared panchayatnama stated that Vimlesh Kumar is an eye-witness and he(Vimlesh Kumar) can recognise the culprits, on seeing but there is no whisper in the judgment passed by the trial Court, in this context.  From the perusal of the record, it does not appear that this important witness has been examined. 

25. It is further worthy to note that the learned trial court, although recorded the statement of the accused appellant under Section 313 CrPC, but a perusal of the judgment does not disclose the case of the accused, nor there is any whisper as regards the defence of the accused appellant. It is only after holding the accused appellant guilty of offence under Section 364 I.P.C. that the trial court has mentioned in a casual manner that "heard learned counsel for the accused Subrati and Subrati", on the point of sentence. The defence of the appellant has not been dealt with. Further the statement too has been recorded in a very casual and cursory manner, without asking the accused relevant and direct question, as referred to above. Thus, not only the judgment of the trial Court but also the statement under Section 313 CrPC is flawed.

26. In Satbir Singh and another versus State of Haryana 2021 SCC Online SC 404, Hon'ble Supreme Court has observed that that the trial court should not record statement of the accused in a very casual and cursory manner, without specifically questioning the accused as to his defence. To quote para 22 :

"It is a matter of grave concern that, often, Trial Courts record the statement of an accused under Section 313 CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. It ought to be noted that the examination of an accused under Section 313 CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness. This provision incorporates the valuable principle of natural justice­ "audi alteram partem", as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the part of the Court to question the accused fairly, with care and caution. The Court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defense, since the inception of the trial, with due caution, keeping in consideration the peculiarities of Section 304-B, IPC read with Section 113-B, Evidence Act. "

                                                                                                                                   (Emphasised by me)

27. No specific question was asked from the accused under Section 313 CrPC as to what he did after taking the deceased from his house. Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. Section 106 of the Evidence Act would only be applicable where the prosecution had succeeded in proving facts. Since the prosecution failed to establish the facts, it cannot be said that the accused failed to offer sufficient explanation to attract Section 106 Evidence Act.

Further it appears from the perusal of the statement of the accused under Section 313 as also the judgment on the point that the appellant was not afforded opportunity to put his defence. Learned trial court also did not examine the defence of the accused. The court must put incriminating circumstances before the accused and seek his response.  Section 232 CrPC provides, "If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal. Such discretion must be utilised by the trial Courts as an obligation of best efforts.  

28. It also appears that there is no evidence on the record nor discussed in the judgment of the trial Court to show that the deceased Satish had been abducted for causing his murder or with a view to see that he was murdered, as envisaged under Section 364 I.P.C. Learned trial Judge nowhere in the judgment gave his satisfaction as regards the state of mind of the appellant accused at the time of the alleged abduction and thus, the judgment of conviction suffers from serious infirmity and warrants interference by this Court in its appellate jurisdiction.

29. In view of what has been discussed hereinabove, the appeal is allowed and the judgment and order dated 18.3.1999 (supra) is set aside. The bail bonds are discharged.

Pending application, if any stands disposed of.

30. Let a copy of the order be sent to the trial Court as also the lower court records.

Order Date :- 17.9.2021

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