Suresh vs State Of U.P.
2022 Latest Caselaw 20213 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 3681 of 2013
 
Appellant :- Suresh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Shashwat Shukla,Mohammad Zakir
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

1. Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.

2. This appeal challenges the judgment and order dated 20.6.2013 passed by Additional Sessions Judge, Court No.8 in Sessions Trial No.333 of 2006 (State vs. Kaluwa and others) wherein the learned Sessions Judge convicted accused-appellant, Suresh and accused-Kaluwa under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced them to imprisonment for life with fine of Rs.10,000/- and, in case of default in payment of fine, further to under six months' simple imprisonment.

3. Three accused namely Kaluwa, Veerendra and Suresh tried for commission of offence under Section 302 read with 34 of IPC. Accused-Kaluwa died on the date of pronouncement of judgment when he felt that his sister had deposed against him. Accused-appellant, Virendra was declared juvenile and his trial was separated. We are concerned here with the accused-appellant, Suresh, who has been assigned the role of aiding the main assailant.

4. Brief facts as culled out from the record are that an F.I.R. was registered on 17.11.2005 at about 7.25 p.m. in the night for commission of offence under Section 302 read with Section 34 IPC on the very same day. The said information was given by one Durga Prasad (informant/P.W.1) conveying that his son-Ashok Kumar was done to death by three people namely Kalua, Virendra & Suresh. The occurrence alleged to have taken place on 17.11.2005. It was conveyed by the informant that on that day, he along with his son's wife (P.W.2) had gone for taking medicine for his grandson and his son-Ashok Kumar had also gone to his village Sekhpur Gadhwa from Aurangabad for some domestic purpose. It was further alleged that when the informant and his daughter-in-law were returning after taking medicines for grandson of informant, they saw that appellant along with two other persons namely Kalua and Virendra who were armed with Balkati (a sharp-edged weapon) were pushing the deceased. On seeing this, P.W.1 asked for to stop the bus. The bus halted and they came down. They saw that accused-Kalua inflicted injuries to deceased-Ashok Kumar by hitting Balkati on his neck. After seeing the informant and P.W.2, the accused threatened them and ran away. It was also averred that after dropping his daughter-in-law he had come for lodging the F.I.R.

5. After lodging of the F.I.R, the investigation was moved into motion. The police arrested all three accused and remand was asked for. On pointing out of accused-Kalua and Virendra, Balkati (a sharp-edged weapon) was recovered. The Investigating Officer, after taking statements of witnesses, submitted charge-sheet against the accused-appellant under Section 302 of IPC.

6. The accused was committed to the Court of Sessions as the case was triable by the Court of Session. The learned Sessions Judge framed charges on the accused. The accused pleaded not guilty and wanted to be tried. Accused-appellant, Virendra was declared juvenile, hence, his trial was separated.

7. So as to bring home the charge, the prosecution has examined 7 witnesses who are as under :

Durga Prasad

PW1

Smt. Sunita

PW2

Dr. S.K. Rastogi

PW3

Mange Ram

PW4

Satya Pal Singh

PW5

Sansar Singh Rathi

PW6

Amrit Singh

PW7

8. In support of ocular version following documents were filed:

F.I.R.

Ex.Ka.4

Written Report

Ex.Ka.1

Recovery memo of two Balkati

Ex. Ka. 3

Postmortem Report

Ex. Ka.2.

Panchayatnama

Ex. Ka.6

Charge-sheet

Ex. Ka. 15

Site Plan with Index

Ex. Ka.14

9. The Court also examined Deep Chand Sharma as C.W.1. The learned Sessions Judge, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused-appellant as mentioned above.

10. Learned counsel for the appellant has submitted that conviction of the accused-appellant is bad in the eye of law as there was vast contradictions in the testimony of P.W.1 and P.W.2 on various points which clearly indicates that they are not an eye witness of the alleged incident but they have falsely implicated the appellant being an educated member in the family as, if he has not been implicated, he might have started pairvi of other co-accused who were real brothers.

11. It is further submitted that co-accused, Kalua and Virendra, who were the real brothers had cordial relationship with his sister i.e. P.W.2 and deceased-Ashok Kumar as three years were elapsed after their marriage and there was one child out of their wedlock of P.W.2 (sister of accused). It is therefore submitted that the accused more particularly accused-appellant had no intention to kill the deceased and he was falsely implicated.

12. It is submitted by learned counsel for the appellant that though the offence is alleged to have taken place in the broad daylight, neither any independent witness nor the family members of the deceased were present near the dead body of the deceased. It is submitted that though P.W.2 tried to fill this gap, but she would not be able to depose as to who and how her in-laws were informed about the said incident and it creates serious doubt regarding the presence of P.W.1 and P.W.2 at the place of occurrence.

13. In support of his arguments, he has relied on the decisions in Jalpat Rai v. State of Haryana, (2011) 14 SCC 208 & Badam Singh v. State of M.P. (2003) 12 SCC 792 and has contended that the conviction of the accused-appellant is bad and requires to be set aside.

14. As against this, learned A.G.A. for the State has submitted that the learned Sessions Judge has rightly convicted the accused-appellant as P.W.1 and P.W. 2 had seen the accused-appellant along with co-accused committing the murder of deceased.

15. While going through the evidence, one aspect is very clear that deceased-Ashok Kumar himself had criminal history which fact has been admitted by the prosecution also but accused-appellant, Suresh, did not have any criminal history. Weapons were never recovered at the behest of accused-appellant, Suresh and he was not assigned any role of having any weapon in his hand.

16. The accused-appellant, has already undergone more than 11 years' of incarceration and more than 14 years' of incarceration with remission. He has no criminal antecedent. The present case stems out of deteriorated relationship between P.W.2's in-laws and his maternal family. Co-accused, Kalua and Virendra are real brothers of P.W.2. The accused-appellant is her cousin and had nothing to do with the family affairs of his aunt.

17. The appellant has brought on record the evidence of P.W.2 before the Juvenile Justice Board by way of additional evidence under Section 391 of Cr.P.C. in which she has categorically denied that she had seen any of the accused killing her husband, Ashok Kumar. She has further stated that she was at home when the incident occurred and people of the village had informed her that her husband was killed by some other people.

18. This evidence is enough for us to come to the conclusion that the accused-Suresh has been wrongly roped into this case because of earlier enmity though it is submitted that accident occurred while the bus was passing by, but, neither the driver of the bus nor any passenger was examined. The recoveries were also not at the instance of accused-appellant. P.W.6, Sansar Singh Rathi who had drawn the site plan had not shown that the accused-appellant was carrying any weapon with him.

19. Hence, while going through the factual data and the evidence produced by way of application under Section 391 of Cr.P.C., we are convinced that the conviction of accused-appellant is liable to be set aside.

20. In view of the above, accused-appellant, Suresh, is acquitted of the offences alleged against him. The order of conviction & sentence passed by the learned Sessions Judge is set aside. The accused-appellant, Suresh, be set free forthwith if not warranted in any other offence.

21. Record and proceedings be sent back to the Trial Court forthwith.

22. This appeal is, accordingly, allowed.

Order Date :- 7.12.2022

DKS