State Of U.P. vs Prakash @ Shiv Prakash
2023 Latest Caselaw 36338 ALL

Allahabad High Court

State Of U.P. vs Prakash @ Shiv Prakash on 22 December, 2023

Bench: Rajan Roy, Manish Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


High Court of Judicature at Allahabad
 
(Lucknow)
 
**********
 

 
Neutral Citation No.-2023:AHC-LKO:85020-DB
 
Reserved on: 05.12.2023
 
Delivered on: 22.12.2023
 
Reserved
 

 
Case :- GOVERNMENT APPEAL No. - 119 of 2022
 

 
Appellant :- State of U.P.
 
Respondent :- Prakash @ Shiv Prakash
 
Counsel for Appellant :- Govt. Advocate
 
Counsel for Respondent :- Jitendra Vikram,Vandana Sharma
 

 
Hon'ble Rajan Roy,J.
 

Hon'ble Manish Kumar,J.

(Per: Rajan Roy, J.)

(1) Heard Sri Pawan Kumar Mishra, learned A.G.A.

(2) This is an appeal by the State under Section 378 Cr.P.C. challenging the judgment and order dated 19.05.2013 passed by Additional District & Sessions Judge, Court no.3, Lakhimpur Kheri in S.T. No.728/2011, arising out of Case Crime No.743/2011 acquitting the respondent of the charge of having committed the offence punishable under Section 302 I.P.C. i.e. murder of his son-in-law.

(3) The prosecution case in nutshell is that daughter of the respondent-accused had died due to burn injuries. She was married to Chhotakkey. The respondent demanded Rs.50,000/- from his son-in-law Chhotakkey otherwise he would falsely implicate him in the murder of his daughter. Chhotakkey had gone to his in-law's house at village-Muda Bujurg, P.S.-Fardhan, District- Kheri to give this money to the respondent on 03.06.2011. In the night of 04.06.2011, the respondent poured kerosene oil on the body of Chottakey and burnt him. The injured deceased died on 06.06.2011, therefore, though the case was initially lodged under Section 147, 307 I.P.C. Case bearing No.743/2011, subsequently, the offence under Section 302 I.P.C. was substituted.

(4) Chargesheet was filed against the respondent under Section 302 I.P.C. based on the evidence collected by the Investigating Officer.

(5) Five witnesses of fact were produced. Dying declaration of the deceased was exhibited as Ex.Ka.3. The Naib Tehsildar who wrote the dying declaration and an X-ray Technician, instead of the doctor who made the endorsement about the medical condition of Chhotakkey, were also examined.

(6) The trial court on a consideration of the evidence on record acquitted the respondent as all the five witnesses of fact turned hostile and did not support the prosecution case. Though, the Naib Tehsildar proved that he had taken down the dying declaration of the deceased but the recital in the declaration to the effect that Chhotakkey had been admitted to the hospital by his brother-Phoolgiri was found to have been belied from the injury report of the hospital, according to which, it is the respondent-accused who had taken him to the hospital, therefore, the trial court has disbelieved it. Moreover, the doctor who was allegedly present at the time of recording of dying declaration was not produced, instead an X-Ray Technician was produced who could not prove that the certificate Part-A allegedly signed by the said doctor was genuine. Moreover, the signatures under the said certificate were found to be illegible and no name of the doctor was mentioned thereunder. For all these reasons, relying upon various decisions of this High Court and other high courts, trial court has acquitted the respondent as the prosecution failed to prove the charge against him.

(7) The contention of learned A.G.A. was that the dying declaration having been proved by the Naib Tehsildar and in view of the statement of the X-ray Technician, even if the doctor who made the endorsement from the dying declaration, was not examined, the guilt of the respondent was proved based on the said evidence itself and the trial court has erred in acquitting the respondent. Apart from it, no other argument was advanced. He has relied upon the decisions of Hon'ble the Supreme Court rendered in (2002) 6 SCC 710 'Laxman vs. State of Maharastra'; (1999) 9 SCC 562 'Koli Chunilal Savji & Anr. vs. State of Gujarat'; AIR (2001) Supreme Court 1814 'Uka Ram vs. State of Rajasthan' and (2007) 15 SCC 455 'Amarsingh Munnasingh Suryawansi vs. State'.

(8) None has appeared on behalf of the respondent.

(9) After having heard learned Government Advocate and having perused the records, what comes out is that all the witnesses of fact including P.W.1-the informant who is mother of the deceased have turned hostile. She, in fact, has stated that when she went to the hospital, the deceased, who was at that time injured and alive, had stated that he had himself poured oil on himself to implicate his father-in-law because the latter had falsely implicated him in the case of death of his daughter i.e. the wife of the deceased. As such he wanted to falsely implicate his father-in-law. She has also stated that when she reached the hospital, she found that the respondent-accused was bearing the expenditure for treatment of her son.

(10) There is documentary evidence as has been considered by the trial court in the form of injury report to show that it is the respondent-Prakash etc who had admitted the deceased to the hospital when he was still injured. Defence witnesses i.e. D.W.1 and D.W.2 have also deposed to this effect and in their cross-examination, the prosecution has not been able to impeach their credibility in any manner. This is a factor which goes in favour of the respondent coupled with the fact that all the witnesses of fact including relatives of the deceased have turned hostile.

(11) This apart, as far as dying declaration of the deceased is concerned, no doubt, Naib Tehsildar has proved the recording of dying declaration by him in his own writing, but, in the dying declaration, the deceased has stated that he was admitted to the District Hospital, Lakhimpur Kheri by his brother-Phoolgiri i.e. P.W.2 who had come from Muda Bujurg whereas in the injury report, it is mentioned that he was admitted in the hospital at about 02:00 A.M. by the respondent-Prakash. Thus, the statement in the dying declaration is belied from the recital in the injury report as also from the testimony of P.W.2 himself wherein he has stated that he had not gone with the injured/ deceased to Muda Bujurg nor had the respondent-Prakash poured kerosene oil on the deceased in his presence. He has not supported the prosecution case and has been declared hostile. In his cross-examination, there is nothing which could be made the basis for convicting the respondent.

(12) Apart from the fact that the recital in the dying declaration is belied from the other evidence and is not corroborated by the same, the doctor, namely, Md. Idris, who had given the certificate about the medical condition of the deceased at the time of recording of dying declaration, has not been produced. He has not proved his certification of the dying declaration. Instead, P.W.9-Ram Raj Singh, X-Ray Technician of District Hospital, Kheri has been produced who in his cross-examination has stated that signature on Part-A of the dying declaration was that of Dr. Md. Idris, the then E.M.O., but, in cross-examination, he has stated that he is not sure as to whether the said certificate is genuine or not. Trial court has found that signatures on the said certificate are illegible and name of the doctor who has signed the certificate is not mentioned thereunder. For all these reasons, the trial court has also disbelieved the dying declaration and has found it to be unreliable. In this context, it has referred to various decisions on the subject which we have perused.

(13) Having heard the matter and having perused the lower court records, we are of the opinion that the view taken by learned trial court is a possible view in the facts and circumstances of the case and the evidence on record. All the witnesses of fact having turned hostile, the only evidence left was the alleged dying declaration of the deceased but for the reasons already discussed hereinabove, the same is not at all reliable.

(14) In this view of the matter, as learned trial court has taken a possible view, in view of the decisions of Hon'ble the Supreme Court in the case of 'State of Karnataka vs. Gopalkrishna' (2005) 9 SCC 291; 'Sudershan Kumar vs. State of Himachal' (2014) 15 SCC 666 & 'Dilawar Singh vs. State of Haryana' (2015) 1 SCC 737, no interference is called for with the judgment of the trial court. The appeal lacks merit. It is accordingly dismissed.

(15) The original records shall be remitted back to the trial court for necessary action, as per rules.

(Manish Kumar,J.) (Rajan Roy,J.)

Order Date :- 22.12.2023

Shanu/-