Sanjay Maurya vs State Of U.P.
2023 Latest Caselaw 5837 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 47
 

 
Case :- CRIMINAL APPEAL No. - 406 of 2021
 

 
Appellant :- Sanjay Maurya
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Rakesh Dubey,Sanjay Maurya
 
Counsel for Respondent :- G.A.
 

 
                                Connected with
 

 
Case :- JAIL APPEAL No. - 259 of 2021
 

 
Appellant :- Smt. Munni Devi
 
Respondent :- State of U.P.
 
Counsel for Appellant :- From Jail,Sanjay Maurya
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Vinod Diwakar,,J.

1. The above criminal appeal alongwith jail appeal is directed against the judgment and order dated 22.12.2020, passed by the learned Additional Sessions Judge/Special Judge, P.C. Act Court No. 5, Gorakhpur in Sessions Trial No. 109 of 2016, arising out of Case Crime No. 300 of 2015, under Sections 302, 120B IPC, Police Station - Pipraich, District - Gorakhpur; whereby the appellants Sanjay Maurya and Munni Devi have been convicted under section 302/120B IPC and sentenced to life imprisonment along with fine of Rs.10,000/-, each, and in default of payment of fine to undergo three months additional imprisonment.

2. According to the prosecution a written report (Ex.Ka.1) was received in the Police Station Pipraich, District Gorakhpur scribed by one Durvijay son of Parasnath from Smt. Sumna wife of Jaipal (mother of the deceased) (PW-1) stating that she is the resident of Village Unaola Awwal, Tola Dihawapar, Police Station Pipraich, District Gorakhpur and her son was engaged in preparing and selling sohan papadi. When her son used to visit her house, there was often a fight with his wife (co-accused Smt. Munni Devi), who allegedly had an extramarital affair with the accused appellant Sanjay Maurya. For the last 12-13 days, the son of the informant was at home and his wife (co-accused Munni Devi) was creating an issue and forcing the deceased to go back to his work. It is for such reasons that a dispute occurred in the evening preceding the day of incident. In the night the informant came to know from Smt. Shobha (PW-3), about the death of her son and suspicion was expressed that it might be the accused appellants, who have eliminated the deceased on account of illegal relations between them. Even in the past her son was beaten by the accused Sanjay Maurya and he had also threatened to eliminate him. The dead body was lying on the door of her house.

3. The contents of written report were incorporated in the G.D. whereafter the first information report was registered as Case Crime No. 300 of 2015, under Sections 302, 120B IPC, Police Station - Pipraich, District - Gorakhpur at 6.30 am on 14.09.2015. Police arrived at the spot and the inquest was conducted between 6.30 to 8.30 in the morning. The inquest witnesses found that the deceased had died on account of incised wound on his neck by a heavy sharp edged weapon. The body was sealed and sent for postmortem. The postmortem has been conducted on the same day at 3.10 pm in which the cause of death has been ascertained as haemorrhage and shock due to ante mortem injuries. The postmortem has been proved by Dr. Vyas Kushwaha (PW-5), who had found following ante mortem injuries on the body of the deceased:-

"Incised wound present; right side neck into bone deep of size 10 cm x 6 cm x 5 cm; vessels cut; thyroid bone cut."

4. The investigation proceeded further and on the same day the accused appellant was arrested and on the basis of his alleged disclosure statement a bloodstained phawra (spade) was recovered. The recovery memo of Phawra and the bloodstained clothes worn by the accused have been proved vide Exhibit Ka-10. The statement of witnesses was recorded and ultimately a charge-sheet was submitted against the accused appellants under Sections 302, 120B IPC, dated 29.10.2015.

5. On the basis of aforesaid charge-sheet the magistrate took cognizance and referred the matter to the Court of Sessions by which the offence was triable. The charges were accordingly framed against the two accused Sanjay Maurya and Munni Devi under Sections 302 and 120B IPC. The charges were explained to the accused, who pleaded not guilty and claimed to be tried.

6. The trial commenced in which the prosecution has adduced following documentary evidence:-

 
       "1. FIR dated 14.09.2015 as Ex.Ka.4
 
       2. Written Report dated 14.09.2015 as Ex.Ka.1
 
       3. Recovery Memo of ala-katl fawda & bloodstained clothes as Ex.Ka. 6
 
       4. Postmortem Report dated 14.09.2015 as Ex.Ka.3
 
       5. Report of Forensic Science Lab. Dated 25.01.2017 as                 Ex.Ka.15
 
       6. Panchayatnama dated 14.09.2015 as Ex.Ka.2
 
       7. Final Form/ Report dated 29.10.2015 as Ex.Ka.14"
 

7. The prosecution has also adduced oral testimony of Sumna Devi (PW-1) and Jaipal (PW-2), who are parents of the deceased. Shobha has been produced as PW-3, who allegedly had informed PW-1 about the incident. Ramdarash is the brother of the deceased and has been adduced as PW-4. PW-5 Dr. Vyas Kushwaha has proved the postmortem report. PW-6 Nirmal Kumar Yadav has proved the chik FIR. PW-7 is Sub Inspector Shobhnath Yadav, who has proved the inquest proceedings. PW-8 Prabhatesh Kumar is the Investigating Officer, who has proved the recovery memo of bloodstained Phawra and bloodstained clothes of accused.

8. It transpires that on the basis of above evidence led in the matter, the statement of accused was recorded under Section 313 Cr.P.C. The final arguments then commenced in the case. It is at this stage that an application was filed under Section 311 Cr.P.C. by the prosecution stating that the son of the deceased namely Govind Sahani (PW-9), although was a witness to the charge-sheet, but could not be produced earlier. The court below vide order dated 23.10.2020 permitted the prosecution to produce PW-9 in evidence. PW-9, accordingly, has appeared as a witness and has been cross examined. The accused appellants have been confronted with the incriminating material in the form of statement of PW-9 and their fresh statement under Section 313 Cr.P.C. was recorded. It is thereafter that the trial court has proceeded to convict the accused appellants and sentenced them to life as per the above.

9. The trial court has essentially relied upon the testimony of PW-1, PW-2, PW-3 and PW-9 in order to come to a conclusion that illicit relations existed between the wife of the deceased Munni Devi and the accused Sanjay Maurya and there was a conspiracy to eliminate the deceased for such purpose. The trial court has then relied upon the testimony of PW-3 and PW-9 to return a finding that the accused appellant Sanjay Maurya in collusion with co-accused Munni Devi has committed the crime wherein the deceased has been done to death by a single blow of phawra on his neck which has caused the deep incised wound on his neck. The court below has further come to a finding that the prosecution has succeeded in establishing the guilt of the accused appellants beyond reasonable doubt and thereby convicted and sentenced the accused appellants. Aggrieved by the judgment of conviction and sentence the accused appellants have preferred the present appeals.

10. Sri Rakesh Dubey, learned counsel for the appellant - Sanjay Maurya in Criminal Appeal No. 406 of 2021 and Sri Sanjay Maurya, learned Amicus Curiae for the appellant - Munni Devi in Jail Appeal No. 259 of 2021, submit that the accused appellants have been falsely implicated and that there is neither any evidence of illicit relations between the two accused appellants, nor there was ever any complaint made before any forum in that regard, previously. They further submit that PW-1 and PW-2 are actually not the eye-witnesses of the incident and their disclosure is based upon the information received from PW-3. With regard to testimony of PW-3, it is submitted that though she has supported the prosecution case at the stage of examination-in-chief, but at the stage of her cross examination, she has clearly stated that she was at home and has not witnessed the incident. It is, therefore, urged that the testimony of PW-3 is not reliable. Learned counsel further submit that the prosecution initially pressed its case with reference to the above material only and the trial had virtually concluded with recording of statement of accused under Section 313 Cr.P.C. Learned counsel argues that the prosecution at that belated stage realized that it may not succeed in establishing the guilt of the accused appellants and, therefore, with an intent to fill up the lacunae and create evidence moved an application under Section 311 Cr.P.C. for producing PW-9, who had been tutored to make specific deposition against the accused. With reference to the provisions contained under Section 311 Cr.P.C., learned counsel submit that there was neither any material, nor any finding in the order of the court below that the evidence sought to be produced on the application under Section 311 Cr.P.C. was essential to the just decision of the case. It is, therefore, contended that the manner in which PW-9 has been introduced at the fag end of the trial raises a serious question with regard to the credibility of PW-9, who was a minor at the time of incident, and in his testimony has clearly admitted that he disclosed what was told to him by the Investigating Officer. The testimony of PW-9 has also been impeached on the ground that conduct of this witness was highly unnatural and, therefore, untrustworthy. So far as the recovery of bloodstained clothes and phawra is concerned, it is urged that PW-7 has clearly stated that even before arrest of the accused, he had himself taken out the phawra from inside the house and, therefore, such recovery at his instance cannot find protection under Section 27 of the Indian Evidence Act, 1872. Submission is that accused appellants have been implicated only on account of suspicion. Attention of the Court has also been invited to the fact that the accused Sanjay Maurya was a pairokar of the accused in the murder case of the brother of the deceased and it is only because of such reasons that the accused appellant has been falsely implicated.

11. Smt. Archana Singh, learned AGA on the other hand submits that testimony of PW-9 is wholly reliable, inasmuch as, there is neither any reason for false implication by the child, who otherwise knew the consequences of his statement and has clearly disclosed the brutal manner in which the offence has been committed by the accused. It is further urged that the recovery of bloodstained phawra has been proved by the Investigating Officer and conclusions drawn by the court below against the accused appellants are clearly borne out from the materials on record and, therefore, the appeals lack merit.

12. Before proceeding to examine the respective contentions urged on behalf of the parties, we deem it appropriate to refer to the evidence on record of the present case. The documentary evidence on record includes the recovery memo of weapon of assault and bloodstained clothes which is Ex.Ka.10. Witness to this recovery memo include two independent persons namely Ramasrey and Krishna, who admittedly have not been produced. Only the Investigating Officer (PW-8) has been produced to prove this document. The testimony of PW-7 and PW-8 in that regard shall be dealt with a little later.

13. Postmortem has been duly proved, as per which, the cause of death was ante mortem injury in the nature of incised wound on the side of neck which was bone deep measuring 10 cm x 6 cm x 5 cm and vessels including thyroid bone were cut.

14. The postmortem report and the testimony of witnesses clearly proves that the death of deceased was on account of injuries caused to him by a sharp edged heavy weapon and consequently his death is homicidal.

15. The documentary evidence also includes the report of the forensic laboratory, as per which, the recovered phawra and clothes worn by the accused Sanjay Maurya had human bloodstains on it.

16. Coming to the oral testimony of witnesses, we find that the PW-1 is the informant, who has proved the written report, as per which, she received information with regard to the commissioning of the offence by accused appellant, from PW-3. She has supported the prosecution case about the existence of illicit relations between the wife of deceased and accused Sanjay Maurya. Similar is the testimony of PW-2. Both these witnesses have stated that on account of the alleged illicit relations the deceased husband and the accused wife used to fight and such a fight also occurred on the previous evening. However, PW-1 and PW-2 are not the witnesses of the incident in which the deceased has been done to death. This fact has also been admitted by the court below.

17. PW-3 is Smt. Shobha, who in her examination-in-chief has stated that her husband had returned drunk to her house and also assaulted her on account of which she took refuge in the house of PW-1 and stayed there in the night. She has stated that at about 12.00 in the night accused Sanjay Maurya came in the house of informant, armed with a phawra and uttered something in the ears of accused Munni Devi. Munni Devi allegedly held the feet of the deceased whereafter accused Sanjay Maurya inflicted the solitary blow of phawra on the neck of the deceased and then accused Sanjay Maurya fled. On hearing the sound she woke up and in the torch light saw the accused Sanjay Maurya fleeing from the spot to his house. She stayed in the night at the house of PW-1 and returned home only in the morning. It is alleged that one Ramdarash informed the police on Helpline No. 100 whereafter the police arrived. Her statement was recorded at 6.00 in the morning. This witness has been cross examined and she has explained her family composition and also her standing in the society. She was working in a school as a maid. The cross examination of this witness was not concluded and on the next date fixed for the purpose she has stated that she cooked food in her house and after having her meals she went to sleep with her children in her own house. She found in the night at about 12.00 that her children were sleeping and it was raining profusely. After the rains stopped this witness again went to sleep. She has stated in the cross examination that no dispute existed between the deceased and her wife Munni Devi. She has also denied the suggestion that being a niece of the informant she has given a false statement that she has not seen the incident. The statement of PW-3 during cross examination is wholly contrary to what she stated in her examination-in-chief.

18. PW-4 is the brother of the deceased, who claims in the examination-in-chief that he saw the deceased leaving his house with a phawra after cutting the neck of his brother. This witness, however, went to sleep. He has also stated that alongwith the deceased he has two other brothers. One of his brother Rajaram was also murdered. Criminal trial in respect of death of Rajaram, however, is pending. In the cross examination PW-4 has admitted that he is a labour and reiterated the statement made by him at the stage of cross examination. He has also admitted that he was not on good terms with his mother and accused Munni Devi and on account of family dispute, differences often surfaced between them. He has also alleged that on the date of incident the deceased was sleeping outside the house in a tin shed.

19. PW-5 is the autopsy surgeon, who has supported the prosecution case and has specified that he found existence of incised wound on the neck of the deceased. The artillery lane and thyroid bone was cut in the solitary blow on the deceased by a sharp edged weapon. He has stated that this injury could have been caused by a phawra.

20. PW-6 is the formal witness who has proved the chik FIR. He has denied the suggestion that FIR was anti time. PW-7 is Sub-Inspector, who has proved the inquest. He claims to be present with the Investigating Officer at the time of conduct of investigation on 14th September, 2015. He also claims to be present with the Investigating Officer at the time of arrest of accused Sanjay Maurya and the recovery of phawra and bloodstained clothes. His statement in that regard reads as under:-

"दिनांक 14/9/15 को ही मैं SO प्रभातेश कुमार के साथ हमराही था व सिपाहीगण भी साथ थे। हम लोग मु०अ०सं० 300/15 U/s 302 IPC की विवेचना में ग्राम उनौला टोला डिहवा मे मौजूद थे जिसका अभियुक्त संजय मौर्या, S/O रामानन्द मौर्या ने जुर्म स्वीकार करते हुये घटना कारित करने हेतु प्रयुक्त फावड़ा बरामद करने की बात बताया। समक्ष गवाह राम आसरे व कृष्णा के सामने अभियुक्त उपरोक्त आगे- आगे चलकर अपने रिहायशी मकान के अन्दर कमरे मे से एक अदद फावड़ा जिस पर खून लगा हुआ था दिया तथा घटना कारित समय स्वयं के कपड़े जिस पर मृतक लालू साहनी का खून लगा था दिया तथा कहा कि इसी फावड़े से मृतक लालू साहनी की हत्या की थी। समक्ष गवाहान कपड़ा व फावड़ा कब्जा पुलिस में लिया गया था। मै भी उस समय मौजूद था।"

In the cross-examination this witness has stated as under:-

"मैने अभि० संजय को न तो गिरफ्तार नही किया था लेकिन मैं गिरफ्तारी के समय S/Oमहोदय के साथ था। मैंने अभि० संजय का बयान नही लिया था। बरामदगी 4.00 बजे शाम को हुई थी। अभि० संजय अपने घर पर था और एक सिपाही को भेज कर अभियुक्त को घटना स्थल पर बुलाया गया। फावड़ा अभि० घर मे से लेकर आया। फावड़ा घर पे कहां था मैं नही जानता। हम लोग अभियुक्त के घर के अन्दर नही गये थे। कपड़ा भी अभियुक्त घर मे से लेकर आया कहां से लेकर आया मैं नही जानता, उस पर खून लगा हुआ था। खून कहा लगा था मुझे इस समय याद नहीं है। कपड़ा शर्ट पैन्ट था।"

21. PW-8 is the Investigating Officer, who has proved the recovery of phawra and bloodstained clothes. PW-9 is the star witness of prosecution, who was introduced at a late stage after recording of the statement of the accused under Section 313 Cr.P.C. He claims that he was studying in Class 8th and there was a fight between his parents on the previous evening. He also claims that there was illicit relations between Sanjay Maurya and his mother on account of which dispute often occurred between them. He further claims that he saw in the night the arrival of Sanjay Maurya with a phawra who uttered something in the ears of his mother whereafter she pressed the feet of the deceased and the accused appellant caused the solitary assault with the phawra on the neck of the deceased. He claims that he got scared and after the incident it started raining. He has further stated that he often used to hear Sanjay Maurya and his mother talking to each other for removing the deceased but he did not understand the true purport of their talks. He claims that in the morning when the police arrived he informed the facts in detail. He has also stated that their existed a tree in front of his house where the lantern was placed and in the light of which he saw the accused committing the offence. In the cross examination this witness claims that he was called 1-2 days after the incident to the police station after the postmortem was complete and Investigating Officer told him as to what was to be disclosed by him in his statement. Since much emphasis has been laid on this part of statement of PW-9, we deem it appropriate to reproduce it hereinafter:-

"घटना के बाद मेरी मुलाकात दरोगा से हुयी थी मुझे दरोगा जी थाने पर बुलाए थे। घटना के बाद 01-02 दिन में पोस्टमार्टम की कार्यवाही हुयी उसके बाद मुझे सिपाही घर पर बुलाने आया। तब मैं थाने गया तब पूछताछ मेरा किया गया। मैं दूसरी बार ब्यान देने आया हूँ। मुझे दरोगा जी थाने पर बुलाए तो 10.00 बजे दिन का समय था। दरोगा ने मुझे बाताया तुम्हें क्या-2 ब्यान देना है। जो मैनें जो बताया वो लिखे। मैं दोस्त के साथ आया हूँ। कल मैं बाबा के साथ आया था। मैं दि० 04/11/20 को बाबा के साथ आया था। सुबह कचहरी में आ गया था। जो मुझे मालूम वो बताया था।"

PW-9 further stated that after the incident he got scared and it also started raining and so he went inside the house and came out only in the morning when the police had arrived. The dead body was lying as it is. This witness has further stated as under:-

"कमरे के उत्तर वाले मे मैं चला गया। मैं सुबह उठा जब पुलिस आयी कमरे से निकला लाश वैसी ही पड़ी थी। मैंने जब पुलिस आयी तो लाश के पास गया तो देखा तो एक गले पर चोट का निशान था। मैं तख्ते पर शाम को लेटा था उस पर गद्दा बिछाया हुआ था वह पानी से बरसात आयी तो मैं घर के अन्दर चला गया। मेरा तख्त मेरे कमरे से 02-03 कदम के फासले पर था। मेरे पिता चारपायी पर सोए थे विस्तर विछा था। पानी बरसा तो उसी पर पिता जी थे। रात में पुलिस 03 बजे आयी। बादल रात को छाया था। शाम को नही छाया था। मैं अपने पिता के चारपायी के पास नही गया था। मच्छरदानी नही लगी थी। सिर के तरफ से फावड़ा चलाया गया था। जब फावड़ा मार कर चले गये तो तब पर भी मैं तख्ते पर सजाया था। यह फावड़ा गले के बीचों बीच गले के सामने लगा था। मेरे पिता करवट नही सोए थे। सीधा सोए थे। पीठ के बल सोए थे।"

22. We now proceed to analyze the evidence on record in order to appreciate the contentions urged on behalf of the appellants in the matter. We have carefully examined the record of the appeals as also the original records of the court below.

23. We have already observed that death of deceased was homicidal and the cause of death as per postmortem report is a solitary deep incised wound on the neck of the deceased. PW-5, who is the doctor, has stated that the cut on the neck was on the right side and in his opinion such an injury could have been caused while deceased was sleeping side ways on his left.

24. The prosecution witnesses who allegedly have seen the incident are primarily two in the facts of the present case i.e. PW-3 and PW-9. Even the trial court has held that PW-1 and PW-2 have not seen the incident. With regard to testimony of PW-3, the witness although has supported the prosecution case in her examination-in-chief, but has come up with a different version, at the time of her cross-examination. This witness has not been declared hostile. The trial court has taken note of the apparent contradiction in the testimony of PW-3 to hold that this witness is not reliable. The conclusion drawn by the trial court in that regard is not shown to be perverse or erroneous and we are in agreement with it. There are two versions of PW-3 on record. In the first version she stated that she was chased by her husband with danda, who returned drunk in the night and she took refuge in the house of PW-1 where she saw the incident. The other version in the cross-examination of PW-3 is that she stayed in her own house and was sleeping with her children. In the second version there is no reference of this witness seeing the incident of crime. The two inconsistent stand on part of PW-3 renders her an unreliable witness. Her testimony, therefore, would not be to the benefit of the prosecution. Even otherwise we find that in her statement under Section 161 Cr.P.C., PW-3 had not disclosed that accused Munni Devi had held the feet of the deceased and there is a clear improvement in her testimony on that count.

25. The emergence of testimony of PW-9 as a piece of evidence in the facts of the case is of somewhat interest and requires its careful examination. The records reveal that the prosecution had not produced PW-9 initially at the stage of trial and the statement of prosecution witness had concluded without taking on record the testimony of PW-9. The trial court had further proceeded to record the statement of accused under Section 313 Cr.P.C. and the final arguments were going on. It is at this stage that an application came to be moved by the prosecution for permitting PW-9 to be produced as an evidence in the case. The prosecution has not explained as to why this witness was not produced earlier, particularly when he was a witness to the charge-sheet. There is absolutely no explanation put-forth by the prosecution in that regard in the application filed by the prosecution under Section 311 Cr.P.C.

26. We find some force in the contention of learned counsel for the defence that the circumstance relating to the production of PW-9 at the late stage of trial has not been explained by the prosecution. The power under Section 311 Cr.P.C. is otherwise available where the court comes to a conclusion that the evidence proposed to be introduced by way of application under Section 311 Cr.P.C. appears to be essential to the just decision of the trial. The trial court in its order dated 23rd October, 2020, has not recorded any reason for taking on record the testimony of PW-9 at this stage. No satisfaction or finding has been returned in the order of the court below that taking of such evidence would be essential to the just decision of the case.

27. PW-9 was a thirteen year old child at the time when the incident occurred. His testimony fully supports the prosecution case in the examination-in-chief. He has stated that he was sleeping alongwith his mother and sister on a plank which was just a few steps away from the cot on which his father was sleeping outside the house. He has stated that the accused came armed with a phawra and uttered something in the ears of his mother whereafter his mother woke up and held the feet of his father. This part of the statement with regard to the holding of feet of his father is however not there in his statement under Section 161 Cr.P.C. He has also introduced for the first time in his statement before the court the existence of a lantern lit at the place of occurrence. This part of the statement of PW-9 is also not in his statement under Section 161 Cr.P.C. No lantern has otherwise been recovered from the spot. Since it was otherwise admitted to the prosecution that the incident occurred in dead of the night at about 12.00, therefore, the existence of source of light assumes significance. The statement of PW-9 for the first time introducing the existence of source of light as an improvement over his previous statement under Section 161 Cr.P.C. is thus to be viewed with some suspicion.

28. PW-9 moreover has stated that he was called at the police station a couple of days after the incident and he was questioned by the Investigating Officer. He has also specified that he was called in the morning. He has specifically asserted that it was the Investigating Officer who told him as to what should be his statement. We further find that though the Investigating Officer claims that statement of PW-9 was recorded on the date of incident, but contrary to it, the statement of PW-9 clearly shows that this witness was called later in the police station for recording his statement. There is only one statement of PW-9 which is on record under Section 161 Cr.P.C. The assertion of PW-9 that he was told about the contents of his statement by the Investigating Officer raises a serious doubt upon the credibility of the statement of PW-9. This witness was otherwise living with his grand-parents who have consistently been supporting the prosecution case. PW-9 has also stated that he had not informed about the incident to any of the family members and disclosed about it only to the police. Though we may not doubt the conduct of PW-9 in not disclosing any of his family members about the incident due to fear and disclosing such fact for the first time to police but his assertion that he was called later to police station for recording of his statement clearly castes a doubt about the credibility of this witness of having seen the incident. The manner in which this witness has been introduced at the fag end of the trial and explanation with regard to the source of light has been introduced apart from his narration that the Investigating Officer informed about the contents of his testimony creates a doubt on the reliability of PW-9 as a witness to the incident.

29. The only other circumstance supporting the prosecution is the recovery of a bloodstained phawra and clothes of the deceased. This recovery is also not free from difficulty. First and foremost, we find that the two independent witnesses of recovery namely Ramasrey and Krishna have not been produced. The recovery has been proved only by PW-7 and 8 who also are not consistent on the circumstance relating to recovery itself. Although, PW-8 has fully supported the recovery, but PW-7 in his testimony has created some doubt on the correctness of the assertion made by PW-8. We have extracted the passage from the testimony of PW-7, as per which, a constable was sent to the house of accused appellant Sanjay Maurya to summon him. It is alleged that Sanjay Maurya brought out the bloodstained phawra from inside the house and gave it to the police. The statement of PW-7 further is that he does not know from where the phawra was taken out and that the police had not entered the house poses contradictory version of the recovery by the prosecution witnesses themselves. In the context of such contradictory version of prosecution witnesses we would like to have some independent evidence in the form of corroboration of recovery which is entirely missing. None of the independent witnesses of the recovery have otherwise been produced. In such circumstances, the recovery of phawra and bloodstained clothes cannot be treated to a valid piece of evidence in terms of Section 27 of the Evidence Act. We come to this conclusion, particularly in view of the testimony of PW-7 that accused Sanjay Maurya had not been arrested till the time the recovery itself was made.

30. Upon analysis of the evidence led by the prosecution, we are of the view that the prosecution has not been able to establish its case against the accused appellants beyond reasonable doubt. It is otherwise admitted to the prosecution that accused Sanjay Maurya was the pairokar of the accused in the murder case of the brother of the deceased and, therefore, had inimical relations with the family of the informant. In light of the evidence which we have minutely scanned today, we find that possibility of false implication of accused appellant on account of inimical relations cannot be entirely ruled out.

31. So far as the judgment of conviction and sentence passed by the court below is concerned, we find that the court below has made no reference to the manner in which the testimony of PW-9 was introduced at a much later stage of trial on an application made by the prosecution under Section 311 Cr.P.C. The embellishment and improvements contained in the testimony of PW-9 with regard to the adding of the source of light and also the catching hold of the legs of the deceased have been clearly overlooked. His further statement that the contents of his testimony were told to him by the Investigating Officer has also been overlooked. The possibility of prosecution creating evidence and filling up lacunae in its case by subsequently introducing the testimony of PW-9 has also been completely overlooked.

32. In that view of the matter and for the reasons and discussions held above, we cannot approve the conclusions and finding returned by the court below with regard to the guilt of the accused appellants, which is accordingly reversed. The appeals, accordingly, succeed and are allowed. The judgment and order dated 22.12.2020, passed by the learned Additional Sessions Judge/Special Judge, P.C. Act Court No. 5, Gorakhpur in Sessions Trial No. 109 of 2016, arising out of Case Crime No. 300 of 2015, under Sections 302, 120B IPC, Police Station - Pipraich, District - Gorakhpur, is set aside.

33. A copy of this order shall be communicated to the accused appellants in Jail through Chief Judicial Magistrate/Jail Superintendent concerned, forthwith.

34. The accused appellants Sanjay Maurya and Smt. Munni Devi shall be released from Jail, forthwith, unless they are wanted in any other case subject to compliance of Section 437A Cr.P.C.

35. Sri Sanjay Maurya, learned Amicus Curiae has assisted the Court in disposal of the Jail Appeal and is entitled to his fee from the High Court Legal Services Authority.

 
Order Date:-  22.2.2023
 
Ranjeet Sahu
 

 

 
(Vinod Diwakar, J.)         (Ashwani Kumar Mishra, J.)