Deen Dayal vs State Of U.P.
2023 Latest Caselaw 25906 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Reserved
 
Neutral Citation No. - 2023:AHC:184490-DB
 

 
Court No. - 3
 

 
Case :- CRIMINAL APPEAL No. - 3260 of 2012
 

 
Appellant :- Deen Dayal
 
Respondent :- State of U.P.
 
Counsel for Appellant :- P.C. Srivastava,Apul Misra,Harikesh Kumar Gupta
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Siddhartha Varma,J.

Hon'ble Manish Kumar Nigam,J.

1. Upon the murder of Medailal, Gyan Prakash who was the son of Smt. Raj Kumari, the Pradhan of the Village Amkhera, lodged a First Information Report on 25.12.2010 at around 02:00 pm alleging that Medailal who was in possession of two acres land had wanted to dispose of that land but his grandson Deendayal had prevented him from selling the same and when on 25.12.2010 at around 09:00 am Deendayal had asked Medailal not to sell the land and when he had insisted that he would sell the land then there was a verble altercation between Medailal and Deendayal and thereafter Deendayal killed Medailal with a banka. Upon some hue and cry being raised prior to the killing and during the killing, the neighbours Bhagwan Das, Jagdish Prasad and the daughter of Deendayal, Km. Rama Devi reached the spot and they all saw that Deendayal had killed Medailal. When the neighbours Bhagwan Das and Jagdish Prasad and the daughter Km. Rama Devi reached the spot, Deendayal had left the banka at the spot and had run away. Gyan Prakash had stated in the First Information Report that since he was the son of the Gram Pradhan, he was lodging the First Information Report.

2. After the First Information Report was lodged, the Police got into action and started off with the investigation. It was alleged that Deendayal had absconded after murdering his grandfather Medailal and he was arrested on 26.12.2010 at around 08:00 pm in the night and on his person a sharp edged weapon was also found. Therefore, after the arrest of the appellant-Deendayal on 26.12.2010, a First Information Report was also lodged against him under Section 4/25 Arms Act. The earlier F.I.R. which was lodged, gave rise to Case Crime No. 1985 of 2010, under Section 302 I.P.C. and the subsequent F.I.R. was numbered as Case Crime No. 1193 of 2010, under Section 4/25 Arms Act. On 25.12.2010 itself the banka was taken into custody and this was done in the presence of two independent witnesses namely Fateh Singh and Rakesh Kumar. The recovery memo of the banka was prepared and was numbered as Exhibit "Ka-11". From the spot, the sample of the floor alongwith bloodstains was also taken into custody and a recovery memo of it was prepared and was numbered as Exhibit "Ka-12". The clothes, which the appellant was wearing, was also recovered and was kept as Exhibit "Ka-16". The material of which the bed was made of, on which the deceased was lying, was also kept as Exhibit "Ka-17". After the First Information Report was lodged, a post mortem was also undergone and this post mortem was sought to be proved by the statement of the doctor. The police, upon investigation, submitted its charge-sheet and charged the appellant-Deendayal for the crime of murder under Section 302 I.P.C. After the charge-sheet was submitted before the Sessions Court, the Additional Sessions Judge, Court No. 2, Pilibhit framed the charges on 12.05.2011. The appellant/accused denied the charges and desired a trial.

3. Before the trial Court as many as 12 prosecution witnesses were examined. Dal Chand was examined as PW-1. He had proved the Panchnama. However in the cross-examination he had categorically stated that the murder of Medailal had not taken place in his presence. He has only stated that there was some enmity between Medailal and appellant Deendayal. He has also stated that he had never heard in the village about the fact that Medailal was murdered by his grandson. PW-2 was the daughter of the appellant namely Km. Rama Devi. She was ten years of age. The Court upon examining as to whether she could give her evidence, had taken her statement and she had stated in the Court that at the relevant time she alongwith her parents was in the sugarcane fields and when she alongwith her parents came to the house it was discovered that Medailal was murdered. She was, however, declared hostile by the prosecution. In her cross-examination, she had categorically stated that why her statement was taken under Section 161 Cr.P.C. implicating the appellant was not known to her. PW-3 Jagdish Prasad again was the eye-witness, who had been mentioned in the First Information Report by the first informant Gyan Prakash. He has also stated in his statement before the Court that he had only heard that Deendayal had murdered his grandfather and he was not on the spot. He was also declared hostile. PW-4 who was the first informant has also stated that he was not present at the time of the incident and he had only heard in the village that Medailal had been killed by his grandson. He was also declared hostile. He had stated in the cross-examination that he had lodged the First Information Report and that his signature was also on it, but he had stated the factum of murder on the statement given by the villagers. He has stated that he did not know the names of the persons who had mentioned about the incident. PW-5 Bhagwan Das again was mentioned as an eye-witness in the First Information Report. He has also stated that he was not there on the spot and, therefore, was declared hostile. PW-6 S.O., Ganga Ram was the Investigating Officer. PW-7 Fateh Singh was the witness of the recovery of the banka. He has also stated that his signatures were not taken on the spot but the Police had got his signatures subsequently. This witness was also declared hostile. PW-8 Rakesh Kumar was allegedly the witness in whose presence the banka was recovered. He was also the eye-witness at the time of the recovery of the banka. He has also stated that the recovery was not done in his presence, but his signatures were taken later on. This witness was also declared hostile. PW-9 is the Sub-Inspector, Chandra Pal Singh, upon whose investigation the charge-sheet was submitted. PW-10 was Constable 576 Budh Pal Singh and had prepared the Chik F.I.R. PW-11 was Dr. C.B. Chaurasia who had proven the First Information Report and had given his opinion that the death had occurred on 25.12.2010 at around 09:00 am and that the deceased had died because of the injuries of banka. PW-12 was Constable 150 Ran Vijay Singh.

4. After the prosecution witnesses were examined, the appellant gave his statement under Section 313 Cr.P.C. and denied the allegation that he had killed his grandfather Medailal. He has categorically stated in his statement that he had never prevented his grandfather from selling his land and, therefore, there was no question of any altercation between him and his grandfather. He has stated that on the date of the incident he was working in his agricultural field and, therefore, he had not got the F.I.R. lodged. To explain that why there were bloodstains on his clothes, he had stated that upon return from his agricultural field he had embraced the dead-body and therefore, there was blood on his clothes.

5. After the assessment of all the evidence present during trial, the Additional Sessions Judge, Court No. 2, Pilibhit vide judgment and order dated 06.08.2012 found the appellant guilty for the offences under Section 302 I.P.C. and under Section 4/25 of the Arms Act and sentenced him for life and also punished him with a fine of Rs. 20,000/-. In default of the payment of fine, the appellant was to undergo the additional rigorous imprisonment of six months. For the offence under Section 4/25 Arms Act, the appellant was sentenced for an imprisonment of one year and was also punished with a fine of Rs. 5,000/-. In default of the payment of fine, an additional imprisonment of ten days was awarded.

6. Aggrieved by the judgment and order dated 06.08.2012 passed by the Additional Sessions Judge, Court No. 2, Pilibhit, the instant criminal appeal has been filed.

7. Learned counsel for the appellant has argued at length and has in effect made the following arguments:-

(i) There was absolutely no motive to kill the deceased.

(ii) The appellant had not absconded but was working in his agricultural field. The appellant was living separately from the house of the deceased. The appellant being an illiterate person had not lodged the First Information Report.

(iii) Bloodstains, if were found on the clothes of the appellant, were clearly explainable as the appellant innocently came and hugged the dead-body.

(iv) There was no fingerprint or any evidence found on the banka to prove that the banka was used by the appellant to kill the deceased.

(v) There was no corroboratory evidence produced to prove the implication of the appellant in the crime.

(vi) Learned counsel for the appellant has thereafter submitted that when there was no evidence whatsoever either material or oral to show that the appellant was involved in the crime, then the Court below definitely erred in convicting the appellant. Learned counsel for the appellant has vehemently argued that it was the burden on the prosecution to prove that the appellant had committed the crime but, in the instant case when there was absolutely no evidence available then for no reason the appellant should not have been convicted. Learned counsel for the appellant has submitted that the clothes which the appellant was wearing and was sent for Serological Examination might have disclosed that the blood was found on the clothes of the accused, but the prosecution has not been able to come up with any evidence that the bloodstain had come on the clothes because of the fact that the appellant had killed the deceased. Learned counsel for the appellant submits that when the appellant was stating that the bloodstain came on the clothes because of the fact the appellant had embraced the deceased upon having found that he had died then the prosecution had to come up with a more plausible story to implicate the appellant. Learned counsel for the appellant has further submitted that the banka has not been connected with the appellant in any manner whatsoever. Neither has it been shown that the appellant was ever in the possession of that banka nor was it in any manner proved that it was used by him to kill the deceased. No fingerprint of the appellant was found on the banka.

(vii) Learned counsel for the appellant has further argued that the first informant-Gyan Prakash had wrongly implicated the appellant on the basis of a heresay. He has submitted that the witnesses Bhagwan Das and Jagdish Prasad, who were allegedly the eye-witnesses in the First Information Report, had denied being there on the spot. He has submitted that even the first informant-Gyan Prakash has denied his presence. Learned counsel for the appellant has further submitted that Gyan Prakash when was lodging the First Information Report seem to be knowing the names of the great grandfather of the appellant namely Tulsi Ram. He knew the name of the son of Medailal (Father of Deendayal), who had pre-deceased Medailal, but the first informant-Gyan Prakash has stated clearly in his statement before the Court that he did not know the names of the persons who had given the information about the death of Medailal. Learned counsel for the appellant therefore submits that the son of the Pradhan who was the son of the soil and knew about the four generations of the family of the appellant, did not know the names of the persons who had informed him about the death. This he submits clearly falsifies the case of the prosecution that Gyan Prakash had come to know about the fact that the appellant had killed his grandfather Medailal from the villagers.

(viii) Learned counsel for the appellant further submits that the prosecution has to establish the guilt of the accused even if the prosecution was transferring the burden of proving the innocence of the appellant by saying that he was last seen with the deceased. Learned counsel for the appellant has further submitted that when the prosecution evidence had not proven that the appellant was last seen with the deceased, then definitely the burden did not lay on the appellant to prove his innocence. It was the duty of the prosecution to have proved to the hilt the allegation that it was making and that was that the appellant had killed the deceased. Learned counsel for the appellant, therefore, states that the instant case was not even a case of circumstantial evidence as though it was stated in the First Information Report that the appellant was last seen with the deceased, there was absolutely no evidence of the fact that the appellant was ever present at the site of the incident.

(ix) Learned counsel for the appellant further submitted that as per the judgment of the Supreme Court in Sharad Birdichand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622, there were five salient points which were to be seen for the convicting of an individual on the basis of circumstantial evidence. They were as follows :-

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;

2. The fact so established should be consistent only with the hypothesis of the guilt of the accused;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

8. These ingredients have to be necessarily there for the Court to come to a conclusion that the accused was guilty. Learned counsel for the appellant states that not one evidence went to prove that the appellant was guilty and even the evidence of the fact that the appellant was last seen with the deceased was absolutely non existant.

9. In reply, Sri S.N. Mishra, learned A.G.A. had argued that the appellant was guilty. Learned counsel for the State has argued that the appellant was a very influential person and, therefore, the eye-witnesses fearing that it would be detrimental to them to have enmity with the appellant had resiled from the statements which they had made under Section 161 Cr.P.C. Learned A.G.A., therefore, states that most of the witnesses had been won-over or had turned hostile. Learned A.G.A. heavily relied on the fact that the blood sprinkled on the shirt of the appellant was not of such a nature which would go to show that the appellant had embraced the deceased. Instead the blood was sprinkled on his shirt and this sprinkling could have happened only if the appellant had repeatedly used the banka to kill the deceased. It has been argued by the learned A.G.A that the appellant was the grandson and was also living in the same quarters where the deceased was staying and, therefore, the burden was on the appellant to prove his innocence.

10. Having heard learned counsel for the parties, the Court is of the view that the accused has been falsely implicated and has, therefore, wrongly been convicted by the Court below. Definitely, all the eye-witnesses namely PW-1 Dal Chand, PW-2 Km. Rama Devi, PW-3 Jagdish Prasad, PW-4 Gyan Prakash (first informant), the other eye-witnesses and all the witnesses of the recovery memos had turned hostile. Simply, because the Police had come up with certain investigation that the banka was found on the spot and that there were bloodstains on the shirt of the appellant, would not convince the Court to the extent that it would convict the appellant. The bloodstains could have been there on account of the fact that the appellant had embraced the deceased after the blood had dried and therefore, the blood was not there on the shirt to the extent it ought to have been there because of the embracing. Further this Court is of the view that even though under Section 106 of the Cr.P.C., it was the duty of the appellant to have explained as to why he was not guilty because of the fact that he was the grandson and that he was staying in the same complex, in which, his grandfather was also staying, the Court is definitely of the view that the prosecution also has not been able to discharge its duty in any manner whatsoever of convincing the Court that the appellant was in any manner guilty. There is absolutely no evidence on record to indicate that the appellant was there on the spot and had killed his grandfather with the banka which was found on the spot.

11. Under such circumstances, we are therefore of the view that when the appellant was not there on the spot, he had no duty whatsoever to prove himself innocent. When the prosecution has failed in its duty to lead us to the conclusion that the appellant had murdered the deceased, we cannot find the appellant guilty of the charges. So far as the finding of the banka is also concerned, we are of the view that since there was no eye-witness in the presence of whom the banka was recovered, the appellant is not guilty of the charges under Section 4/25 of the Arms Act.

12. Under such circumstances, we have no other option but to allow the appeal and to acquit the appellant in the instant criminal appeal and therefore, we set aside the impugned judgment and order dated 06.08.2012 passed by the Additional Sessions Judge, Court No. 2, Pilibhit in Session Trial No. 181 of 2011 arising out of Case Crime No. 1985 of 2010, under Section 302 I.P.C. and in Session Trial No. 181 of 2011 arising out of Case Crime No. 1193 of 2010, under Section 4/25 Arms Act. The appellant, if not required in any other crime, may be released forthwith.

Order Date :- 22.9.2023

M.S. Ansari