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2017 DIGILAW 1354 (ALL)

HANUMAN SEWAK v. STATE OF U. P.

2017-05-22

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2017
JUDGMENT : 1. Heard Sri Brahm Singh holding brief of Sri Gaurav Saran, learned counsel for the appellant as well as Kumari Meena and Sri Saghir Ahmad, learned AGAs for the State an perused the record of the appeal. 2. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 8th February, 1988 passed in Sessions Trial No.274 of 1985, State Vs. Hanuman Sewak arising out of Case Crime No.42 of 1985, Police Station- Khorabar, District- Gorakhpur, whereby the accused-appellant- Hanuman Sewak- has been sentenced to undergo life imprisonment under Section 302 IPC. 3. The prosecution story, as unravelled by the first information report, reveals that a written report was moved with Police Station- Khorabar of District- Gorakhpur on 25.3.1985 at 23.40 hours by Shri Lalchand S/o Shivnarain, proceeded against Hanuman Sewak with allegation that Hanuman Sewak Srivastava S/o Chandrika Srivastava was residing in his village. Today at about 9.00 P.M. or 10.00 P.M. there was exchange of some tiradic altercation took place between Hanuman Sewak Srivastava and his wife. On being annoyed, Hanuman Sewak Srivastava sprinkled kerosene oil on her wife- and set her ablaze. On her screaming, Adalati, Bechu Dhobi and Village Pradhan reached at the place of the incident and they tried to put out the fire. His burnt wife had told the informant and the villagers about the incident. Request was made for lodging the report and taking appropriate action. The written report is Ex.Ka.1. 4. Entry of contents of written report was noted in the concerned check F.I.R. at 23.40 hours on 25.03.1985 at Case Crime No.42 of 1985 u/s 326 I.P.C., Police Station- Khorabar, District- Gorakhpur, which is Ex.Ka.9. Relevant entries were made in the concerned G.D. at rapat no.43 at 23.40 hours on 25.3.1985 and a case was registered against accused. Copy of G.D. is Ext. Ka.-8. 5. The investigation was ensued by S.I. Kodai Singh Yadav C.W.1 on 26.3.1985 on the information furnished at 10.30 A.M. by Ward-Boy Jagat Bahadur Singh, Sadar Hospital, Gorakhpur that a lady, named, Meena Kumari had died. On this information he, Constable Bacchan Prasad and Deepchand proceeded to the Sadar Hospital, Gorakhpur where he appointed inquest witnesses and prepared the inquest report, which is Exhibit Ka-3. 6. On this information he, Constable Bacchan Prasad and Deepchand proceeded to the Sadar Hospital, Gorakhpur where he appointed inquest witnesses and prepared the inquest report, which is Exhibit Ka-3. 6. The dead body was sealed and relevant papers were also prepared for sending the dead body for postmortem examination and constable Bacchan Prasad and constable Deepchand identified the dead body in the mortuary, whereupon, postmortem examination on the cadaver of deceased Meena Kumari was conducted by Dr. Noor Ahmad P.W.8 on 26.03.1985 at 4.30 P.M., wherein the following ante-mortem injury was noted: "Superficial burn all over the body except upper part of back, right thigh and both foot. Scalp hair singing due to burn. Kerosene oil smell present. On internal examination, Dr. Noor Ahmad found the brain congested. Both lungh were also congested. In the stomach, wall of stomach was burnt. Rigor mortis present in both the limbs. Urinary bladder was found empty." 7. In the opinion of doctor, death was caused due to shock as a result of superficial burn injuries. This doctor has proved postmortem examination report as Exhibit Ka.2. 8. During course of investigation, the accused was arrested from his house and sent to police station concerned by Investigating Officer Sita Ram Singh C.W.2. Thereafter I.O. Sita Ram Singh C.W.2 recorded the statement of the witnesses Lalchand, Adalati, Bechu, Munshi lal, Beni Prasad, Vinod etc. On the their pointing out he made spot inspection and prepared the site plan, which is Exhibit Ka-10. During the course of the investigation, I.O. Sita Ram Singh C.W.2 also recorded the statements of other witnesses- Rambachan and Smt. Rampati. 9. After completing the investigation, the Investigating Officer of the case filed charge-sheet against the accused on 13.04.1985 as Exhibit Ka-11. 10. Pursuant to the filing of the charge-sheet, proceeding of the case was committed to the court of Sessions. As a sequel to that, this case was made over for trial and disposal to the Court of Additional Sessions Judge, Gorakhpur where it was numbered as S.T. No.274 of 1985, State Vs. Hauman Sewak. The appellant was heard on point of charge and the trial court was, prima facie, satisfied with the case u/s 302 I.P.C. against the accused-appellant. Therefore, it framed charge against the accused-appellant under Section 302 IPC. Charge was read over and explained to the accused, who abjured charge and opted for trial. 11. Hauman Sewak. The appellant was heard on point of charge and the trial court was, prima facie, satisfied with the case u/s 302 I.P.C. against the accused-appellant. Therefore, it framed charge against the accused-appellant under Section 302 IPC. Charge was read over and explained to the accused, who abjured charge and opted for trial. 11. The prosecution, in order to prove guilt of the accused examined as many as eight prosecution witnesses of whom Lal Chandra P.W., Beni Prasad P.W.2, Rampati Devi P.W.3, Vinod Kumar P.W.4, Munni Lal P.W.5 Bechu P.W.6, Adalati P.W.7, Dr. Noor Ahmad P.W.8, Kodai Singh Yadav C.W.1 and Sita Ram Singh C.W.2. 12. Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, he termed his implication false and deposed that he is innocent and has been implicated in this case due to handy work of police. 13. The learned IV Additional Sessions Judge, Gorakhpur after appraisal of facts and merit of the case and the evidence on record, returned aforesaid finding of conviction, under section 302 of Indian Penal Code and sentenced the accused-appellant to imprisonment for life. 14. Resultantly, this appeal. 15. The learned counsel for the appellant has submitted that the first information report is ante- timed and was prepared with the intervention of the police which is proved from the testimony of Lalchand P.W. 1 himself, who has deposed that written report of the occurrence which was produced at the time of trial, is not the same which was scribed by him. It has also been argued on behalf of the appellant that there being glaring contradictions, inconsistencies and omissions in the testimony of seven witnesses of fact examined on behalf of the prosecution for proving the charge against the accused appellant, as such, no reliance can be placed on their testimony. It is evident that none of the witnesses had seen the occurrence, but on being asked the victim had disclosed that her husband Hanuman Sewak (appellant) after slapping her, had set her ablaze. Such being the state of affairs, the finding of conviction recorded by the trial court, cannot be sustained and the impugned judgment and order of conviction is liable to be set aside. 16. Per contra, learned A.G.A. has submitted that the prosecution has succeeded in proving the charge against the appellant beyond all reasonable doubts. Such being the state of affairs, the finding of conviction recorded by the trial court, cannot be sustained and the impugned judgment and order of conviction is liable to be set aside. 16. Per contra, learned A.G.A. has submitted that the prosecution has succeeded in proving the charge against the appellant beyond all reasonable doubts. All the prosecution witnesses of fact consistently supported the prosecution case as spelt out in the first information report, which stands further corroborated from the medical evidence on record. The contradiction and inconsistency, if any, in the testimony of prosecution witnesses of fact is of trivial nature, which does not affect the core of prosecution case rendering the prosecution story improbable or unbelievable. The conviction of the appellant recorded by the trial court is based on cogent evidence and the sentence awarded to him is supported by the relevant considerations. The impugned judgment and order does not suffer from any illegality or perversity requiring any interference by this Court and in this view of the matter, the appeal being devoid of any merit is liable to be dismissed. 17. We have heard the learned counsel for the parties and perused the impugned judgment and order as well as record of the case. 18. After considering aforesaid rival submissions made by both sides, core consideration for adjudication of this appeal engages our attention is that whether this case being a case based on circumstantial evidence all its links of circumstances of chain are complete in itself, which lead aside every hypothesis of innocence of the appellant or establishes fact that accused appellant is the perpetrator of the crime? 19. Record shows that the incident is alleged to have taken place between 9-10 P.M. on 25.3.1985, and written report of the incident was lodged by Lal Chand P.W.1 at police station Khorabar, district Gorakhpur, at 23.40 hours. It was categorically alleged that when the informant- Lal Chand and other witnesses had arrived at the house of deceased- Meena Kumari, they found her in flames and on being queried by them, she told that her husband, after getting annoyed with her over a trivial matter, poured kerosene and set her ablaze. 20. It is pertinent to note that in the first information report, there is no allegation that the accused appellant was either seen setting his wife ablaze or running away from the place of occurrence. 20. It is pertinent to note that in the first information report, there is no allegation that the accused appellant was either seen setting his wife ablaze or running away from the place of occurrence. Further, there is no direct clinching evidence in regard to nature of participation, and role of the appellant, which may connect the appellant with incident in question. 21. Record further shows that the injured Meena Kumari was admitted to district hospital, Sadar, Gorakhpur, for treatment, where she succumbed to the injuries sustained by her in the morning of 26.3.1985. Information about her death was communicated by ward-body Jagat Bahadur Singh of district hospital, Sadar, Gorakhpur at about 10.30 A.M. to S.I. Kodai Singh Yadav, who was posted at police station- Kotwali, district- Gorakhpur at about 10.30 A.M. On receiving the aforesaid information, Shri Kodai Singh Yadav along with constable Bachchan Prasad and Deep chand reached the hospital and nominated inquest witnesses, conducted the inquest on the cadaver of the deceased and prepared the inquest report, Exhibit Ka-3. 22. It is noteworthy that although the prosecution claims that the first information report of the incident was registered at police Station Khorabar, Gorakhpur, on 25.3.1985, but it appears that till the holding of inquest and dispatching of the dead body of the deceased for postmortem, the police of police station Khorabar had no information about her death, as the inquest report of the deceased (Exhibit. Ka.-3) neither contains any crime number nor name of the accused. 23. In the light of above facts, we now proceed to examine the grounds on which, learned counsel for the appellant has castigated the prosecution story. 24. The main ground is that the first information report, in this case, is ante-timed and is outcome of product of police intervention. In this regard, perusal of testimony of Lal Chand-P.W.1 indicates that although in his examination-in-chief, he has supported the prosecution case as spelt out in first information report and proved the written report of the occurrence as Ext. Ka.-1, but, he, in his cross examination on page 13 of the paper book, has categorically deposed that he had not seen the occurrence from his own eyes. His house, where he resided, is in village Sikraur, Police Station Khorabar, district Gorakhpur, which is about 2-3 Kms. Ka.-1, but, he, in his cross examination on page 13 of the paper book, has categorically deposed that he had not seen the occurrence from his own eyes. His house, where he resided, is in village Sikraur, Police Station Khorabar, district Gorakhpur, which is about 2-3 Kms. away from Gorakhpur city, when he arrived at the place of occurrence, victim Meena Kumari was charred but she was alive. He further deposed, in his cross examination on page 14 of the paper book that the written report scribed by him was not produced before the Court during the trial. He further deposed that when he reached police station, Adalti and Beni, who were already present there, told him that they had informed the police about the incident but this fact has been deliberately suppressed and not brought on record. However, from the facts deposed by P.W. 1 on page 16 of the paper book that Ext. Ka.-1 was written by him on the dictation of Darogaji and he was not at all in a position to disclose the cause of death of wife of Hanuman Sewak. The testimony of P.W. 1 first informant in this case, appears to be wholly unreliable and untrustworthy and it cannot be termed as first information report of the incident. The same appears to have been prepared at the behest of and in collusion with and intervention extended by the police falsely implicating the appellant. 25. As regards, the first information report being ante timed, the said fact has been proved from the evidence of prosecution itself. The prosecution claims that the first information report was registered on 25.3.1985 at about 23.40 hours. G.D. Entry No.43 which was proved by C.W.-2 Kodai Singh Yadav indicates that the deceased was taken to Sadar District Hospital for treatment by two constables, namely, Majid Khan and Ghanshyam Prasad from the place of occurrence at 23.40 hours and if the aforesaid entry is correct, then the Chitthi-Majroobi must have been prepared and given by Majid Khan and others, who took the victim Meena Kumari to the Sadar Hospital, Gorakhpur and got her admitted. In case, the first information report had been registered by then, the case crime number must have been entered in the Majroobi Chitthi, but the prosecution has failed to bring on record the Majroobhi Chitthi and this material piece of evidence was suppressed by the prosecution, as a result of which, we have no option but to draw an adverse inference in regard to time of first information report. 26. Apart from it, the first information report was not registered at the time as mentioned in the Check FIR as in case the injured victim was admitted in the concerned hospital, by the constables, then the Majroobhi Chitthi must have contained case crime number and the victim would not have been left unattended, which fact would have been noted by the hospital authorities and after the death of the victim, while conveying the information to the police Station- Kotwali, the hospital authorities, would have also informed to the police station where the case was registered and same crime number would have been found in the inquest report and other relevant papers relating to the deceased. 27. Now, the next question, which requires our consideration is whether the guilty of the appellant has been proved on the basis of testimony of prosecution witnesses of fact produced by the prosecution. Out of seven witnesses of fact, P.W. 2 Beni Prasad no opportunity was given to defence to cross examine, while P.W. 5-Munni Lal- Gram Pradhan of the village concerned was declared hostile when he failed to support the prosecution fact. Now, we have left no option but to examine the testimony of Lal Chand-P.W. 1, Rampati Devi- P.W.3, Vinod Kumar P.W.4, Bechu- P.W.6, Adalti P.W.7. 28. Although, Lal Chand- P.W.1 has supported the prosecution case in examination in chief, but in his cross examination, not only he has disowned the written report of the incident, which is brought on record, vide Ext. Ka. 1, by deposing that it was not the same written report, which was ascribed by Vinod on his dictation, but in fact the report, which has been brought on record vide Ext. Ka. 1, was written at the behest of Darogaji. Ka. 1, by deposing that it was not the same written report, which was ascribed by Vinod on his dictation, but in fact the report, which has been brought on record vide Ext. Ka. 1, was written at the behest of Darogaji. Although, in the examination in chief, Lal Chandra P.W.1 has deposed that when he reached at the place of occurrence on screaming of injured Meena Kumari, she had told him and other witnesses that her husband had set her ablazed. However, in his cross-examination, he has disclosed that at the time he has reached the place of occurrence, Meena Kumari victim was virtually reduced to ashes, but she was alive. On page 16 of the paper book, he further deposed that he is not in a position to tell how the victim was burnt. Thus, the evidence of P.W. 1 Lal Chand is apparent that he has neither seen the occurrence nor deceased has made any dying declaration. It is also evident that there are inconsistencies through out in his testimony in respect of the time on which he had arrived at the place of occurrence and he had left the place for lodging the first information report. 29. Prosecution witness Ram Pati Devi P.W. 3 appears to be wholly unreliable witness as in her examination in chief, she has made material improvement by deposing that she arrived at the place of occurrence, she saw Hanuman Sewak while victim was burning. She and his husband caught Hanuman Sewak where after Hanuman Sewak was given kicks and fists blow by the villagers when they arrived at the spot of occurrence. The accused ran away towards the house situated eastern side of the village while being chased by P.W. 3 Ram Pati Devi and other villagers who started searching him. The appellant climbed upto to the Kothari situated on first floor and hid himself behind the box. P.W.3 Ram Pati Devi and other villagers remained there till the arrival of the police constable, who brought out the accused from his hiding place. Thereafter, they changed the clothes of the deceased and put her on cot and the victim has told that Hanuman Sewak poured kerosene oil on her, set her ablaze. While Hanuman Sewak was shouting and asked injured Meena Kumari to save him and he would treated, thereafter police took Hanuman Sewak and his wife to the police station. Thereafter, they changed the clothes of the deceased and put her on cot and the victim has told that Hanuman Sewak poured kerosene oil on her, set her ablaze. While Hanuman Sewak was shouting and asked injured Meena Kumari to save him and he would treated, thereafter police took Hanuman Sewak and his wife to the police station. 30. The aforesaid facts are conspicuous by perusal of testimony of P.W.1. Moreover, from the perusal of testimony of P.W. 3 on page 21-22 of the paper book that the statement given before the trial court was not the same, which was given under section 161 Cr.P.C. before the Investigating Officer concerned and subsequently she made material improvement, hence in this view of the matter, no reliance can be placed on her testimony. 31. So far as the testimony of Vinod Kumar P.W. 4 is concerned, it appears that neither he is witness of fact nor witness of dying declaration. He has categorically disclosed that whatever fact he stated was the fact given by Pradhan. 32. P.W. 5 Munni Lal is Pradhan of the village where in incident took place. He claims to have arrived on the spot at the time of occurrence. He saw that victim was burnt but she was alive. Victim stated before him and other villagers that her husband Hanuman Sewak had set her ablaze. But he asked that how the victim was burnt. The victim told him that her husband Hanuman Sewak after pouring kerosene oil, set her ablaze. He further stated that after 3-4 days when Darogaji came to the village, he did not tell anything. Subsequently, he was declared hostile. 33. The statement of Bechu, P.W. 6, in respect of alleged dying declaration made by victim Meena Kumari that her husband after pouring kerosene oil set her ablaze. On page 30 of the paper book, he appears to be inimical towards appellant as about 6 years before the occurrence, accused has got his goat detained in Kazi House, which was released after depositing the requisite fine causing him tremendous agony. However, in the concluding line on page 30 of the paper book of his statement, he deposed that it is wrong to state that due to above enmity, he is deposing false statement. 34. However, in the concluding line on page 30 of the paper book of his statement, he deposed that it is wrong to state that due to above enmity, he is deposing false statement. 34. The statement of Bechu, P.W. 6 requires our scrutiny and in this regard, we find that Adalati P.W.7 appears to be inimical towards accused and he has admitted in his depositions. 35. P.W. 7 Adalti in his evidence has deposed that when he arrived at the place of occurrence on hearing screaming of niece of Hanuman Sewak, he saw the victim burning, then he opened the door of southern side, victim came out in flame. When accused was trying to escape away, he caught hold of the accused. The victim made dying declaration before him and other villagers that the accuse Hanuman Sewak after pouring kerosene oil, set victim ablaze. 36. Dr. Noor Ahmad P.W.8 is the doctor witness and he has categorically deposed that on 26.3.1985, he was posted at District Hospital, Gorakhpur and on day at about 4.30 P.M., he had conducted postmortem of deceased Meena Kumari, aged about 25 years, w/o Hanuman Sewak and he noted "Superficial burn all over the body except upper part of back, right thigh and both foot. Scalp hair singing due to burn. Kerosene oil smell present" injuries on the person of deceased Meena Kumari, which was proved by P.W.8 Dr. Noor Ahmad as Exhibit Ka-2. 37. The question which arises for our consideration is that whether ocular version in this case finds corroboration from the medical evidence or not. Record shows that after the death of the deceased, his postmortem examination was conducted by P.W.8 Dr. Noor Ahmad and he prepared his postmortem report Ex.Ka.2. 38. Thus, from the evidence of P.W.8 Dr. Noor Ahmad, it reveals that the deceased died due to shock as a result of superficial burn injuries on 25.3.1985 at about 9.00 or 10.00 P.M. or on 26.3.1985 at about 4.00 A.M. stands fully corroborated. On internal examination, Dr. Noor Ahmad found the brain of deceased congested. Both lungs were also congested. Wall of stomach was burnt. Rigor mortis present in both the limbs. Urinary bladder was found empty. He deposed in last paragraph of page no.44 of paper book that it is quite possible that when the victim sustained burnt injuries, she could have fainted instantaneously. 39. Noor Ahmad found the brain of deceased congested. Both lungs were also congested. Wall of stomach was burnt. Rigor mortis present in both the limbs. Urinary bladder was found empty. He deposed in last paragraph of page no.44 of paper book that it is quite possible that when the victim sustained burnt injuries, she could have fainted instantaneously. 39. This statement requires our scrutiny as to whether deceased Meena Kumari, in view of the nature of burnt injuries, was able to speak. In this regard, we may refer to the testimony of P.W. 8 Dr. Noor Ahmad, and we find that deposition of P.W.8 appears to be negative in that regard. 40. It is admitted to both the parties that the present case is one based on circumstantial evidence as no one has seen commission of offence. 41. We are conscious of fact that where conviction is based on circumstantial evidence solely then there should not be any snap or gap in the vital links of the chain of circumstances and in case any snap emerges out in the links of chain, then the accused would be entitled to benefit of doubt. 42. We are also conscious of fact that in cases if some of the circumstances in the chain can be explained by any other reasonable hypothesis, which may give rise to reasonable comprehension that alleged offence can be committed by other persons also when the accused are entitled to be benefit of doubt. Only that circumstantial evidence, which is clinching, consistent leaving aside any other hypothesis regarding commission of crime except innocence of the accused alone would be inspiring confidence. All the circumstances of the case must be, as held in a catena of cases by the Hon'ble Apex Court, that all the links of chain must be complete in cases based on circumstantial evidence. Hon'ble Apex Court in the case of Manthuri Laxmi Narsaiah Vs. State of A.P. Reported in (2011) 14 SCC 117 has held in paragraph no.6 as under: "6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof." 43. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof." 43. Here, in this case at hand we are constrained to note that present case is in fact a case of no evidence, as not a single piece of testimony of prosecution emerges out to prove the guilt of the accused in this case. 44. In the backdrop of aforesaid discussion, we are fully convinced that the prosecution has not been able to establish all links in the chain of circumstances and chain remained incomplete. Learned trial court while appraising evidence and marshaling facts on record misread the evidence and based its conviction more on whims and imaginations than on evidence on record, leaving aside the guiding principles to be applied in cases based on circumstantial evidence. In case evidence and circumstances of the case allude to alternative way, to alternative hypothesis and give rise to possibility that the perpetrator of the crime can not be proved by the prosecution witnesses then benefit of doubt should and must be given to the accused persons. 45. These are the reasons upon which we set aside the impugned judgment and order of conviction dated 8th February, 1988 passed in Sessions Trial No.274 of 1985, State Vs. Hanuman Sewak arising out of Case Crime No.42 of 1985, Police Station- Khorabar, District- Gorakhpur. Appeal is allowed. 46. In this case, appellant- Hauman Sewak is already on bail. He need not surrender, his personal bond and sureties are discharged. Appellant shall ensure compliance as mandated under Section 437-A Cr.P.C. by furnishing bonds. 47. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.