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2017 DIGILAW 2343 (ALL)

Chandra Shekhar v. State of U. P.

2017-10-11

B.K.NARAYAN, RAHUL CHATURVEDI

body2017
JUDGMENT : B.K. Narayana, J. 1. The arguments of this case concluded on 11.10.2017. We then made the following order:- "....Heard Sri D.P. Singh, Senior Advocate assisted by Sri Ram Chandra Uttam, learned Counsel for the appellant, Sri Saghir Ahmad, Sri J.K. Upadhyay, learned A.G.As. for the State. We will give reasons later. But we make the operative order here and now. This criminal appeal is allowed. The impugned judgment and order dated 24.2.2011 passed by Additional Sessions Judge, Court No. 1, Hathras, in Sessions Trial No. 22 of 2009 arising out of Case Crime No. 288 of 2008, State Vs. Chandra Shekhar, convicting and sentencing the appellant under section 302 I.P.C. and P.S. Hasayan, District Hathras to undergo life imprisonment are hereby set aside. The appellant is acquitted of all the charges framed against him, he shall be released forthwith, unless he is wanted in any other criminal case, subject to his complying with section 437A Cr.P.C. There shall however be no order as to costs." 2. Here are the reasons:- This criminal appeal is directed against the judgment and order dated 24.2.2011 passed by Additional Sessions Judge, Court No. 1, Hathras in Sessions Trial No. 22 of 2009, State vs. Chandra Shekhar arising out of Case Crime No. 288 of 2008, under section 302 I.P.C. Police Station Hasayan, District Hathras by which the appellant has been convicted and sentenced to imprisonment for life under section 302 I.P.C. and a fine of Rs. 2000/- and in default of payment of fine 1 month additional imprisonment. 3. The prosecution case in brief is that PW-1 Kishan Pal gave a written report Ext. Ka1 on 19.11.2008 at Police Station Hasayan, District Hathras alleging therein that while his brother Raees Pal was present in his field where the work of boring was being done, at about 6 P.M. he saw Chandra Shekhar beating his real brother Raees Pal with an iron pipe on which he raised an alarm whereupon Chandra Shekhar fled away. Leaving the dead body of his brother in his field, he left for the police station to lodge the F.I.R. of the occurrence. 4. On the basis of the written report Ext. Ka1, Case Crime No. 288 of 2008, under section 302 I.P.C. was registered against the appellant. Chik F.I.R. and necessary G.D. entry vide rapat No. 38 at 21:30 hours dated 19.11.2008 were prepared. 5. 4. On the basis of the written report Ext. Ka1, Case Crime No. 288 of 2008, under section 302 I.P.C. was registered against the appellant. Chik F.I.R. and necessary G.D. entry vide rapat No. 38 at 21:30 hours dated 19.11.2008 were prepared. 5. After the registration of the case, the Investigating Officer reached the place of occurrence, held the inquest on the dead body of the deceased-Raees Pal, prepared the inquest report Ext. Ka2, and other papers namely letter addressed to Superintendent of Police Ext. Ka6, challan lash Ext. Ka7, letter addressed to CMO Ext. Ka8, letter addressed to R.I. Ext. Ka9 and photo nash Ext. Ka10. He also seized one piece of pipe (about 3 feet long) stained with blood, plain and bloodstained earth and one dharanti from the place of occurrence and prepared the recovery memos of the aforesaid articles Ext. Ka3 to Ext. Ka5 respectively. He also inspected the place of occurrence and prepared its site plan Ext. Ka2. After sealing the dead body, I.O. of the case dispatched the same to the mortuary for conducting post-mortem. The autopsy on the dead body of the deceased-Raees Pal was conducted by Pramod Kumar, Senior Physician, Pandit Deen Dayal Upadhyay Hospital, Aligarh on 20.11.2008 at 3:40 P.M. who also prepared the post-mortem report of the deceased Raees Pal. Following ante mortem injuries were noted by him on his dead body: A.L.W. is 13 cm. x 19 cm. x bone deep on face and forehead, both maxillex broken, nasal bone is broken. Abrasion is 3 cm. x 2 cm. on right palm. Abrasion is 4 cm. x 3 cm. on left palm. A contusion is 4 cm. x 2 cm. on back of head. 6. The cause of death was stated to be shock and haemorrhage as a result of ante-mortem injuries. The Investigating Officer after completing the investigation submitted charge-sheet Ext. Ka15 against the appellant before the CJM, Aligarh. 7. Abrasion is 4 cm. x 3 cm. on left palm. A contusion is 4 cm. x 2 cm. on back of head. 6. The cause of death was stated to be shock and haemorrhage as a result of ante-mortem injuries. The Investigating Officer after completing the investigation submitted charge-sheet Ext. Ka15 against the appellant before the CJM, Aligarh. 7. Since the offence mentioned in the charge-sheet was triable exclusively by the Court of Sessions, CJM Aligarh committed the accused-appellant for trial to the Court of Sessions Judge, Aligarh where the case was registered as Sessions Trial No. 22 of 2009, State vs. Chandra Shekhar and made over for trial from there to the Court of Additional Sessions Judge, Court No. 1, Hathras who on the basis of the material collected during investigation and after hearing the prosecution as well as the accused-appellant on the point of charge, framed charge under section 302 I.P.C. against the accused-appellant who abjured the charge and claimed trial. 8. The prosecution in order to prove its case against the accused-appellant examined PW-1 informant Kishan Pal, brother of the deceased, PW-2 Har Prasad, PW-3 Prabhawati as witnesses of fact while PW-4 Rajveer Singh and PW-5 Vinod Kumar were produced as witnesses of inquest and recovery of crime weapon respectively. It is noteworthy that all the three witnesses of fact PW-1, PW-2 and PW-3 Kishan Pal, Har Prasad and Prabhawati examined by the prosecution to establish the charge framed against the accused-appellant were declared hostile after they failed to support the prosecution case. PW-4 Rajveer Singh, the witness of the inquest deposed that neither the inquest report was prepared in his presence nor the Investigating Officer had recorded his statement, although he admitted his signature on the inquest report. PW-5 Vinod Kumar also failed to support the recovery. The learned Trial Court however by the impugned judgment and order convicted the appellant and awarded sentence of life imprisonment to him under section 302 I.P.C. Hence this appeal. 9. PW-5 Vinod Kumar also failed to support the recovery. The learned Trial Court however by the impugned judgment and order convicted the appellant and awarded sentence of life imprisonment to him under section 302 I.P.C. Hence this appeal. 9. Sri D.P. Singh, Senior Advocate appearing for the appellant submitted that all the three witnesses of fact examined by the prosecution during the trial, having failed to support the prosecution case in their evidence recorded before the Trial Court and upon being confronted with their statements recorded under section 161 Cr.P.C. in which they had purported to support the prosecution case, deposed that they had not given any such statements to the Investigating Officer and the prosecution having failed to examine the Investigating Officer of the case for proving the police statements, the same could not be read in evidence against the appellant while appreciating the evidence. The appellant's conviction recorded by the Trial Court on the basis of surmises and conjectures is per se illegal. He next submitted that the learned trial Judge fastened the guilt of the murder of Raees Pal on his son Chandra Shekhar (appellant) only on the ground that the injuries noted in the post-mortem report and by the inquest witnesses on the dead body of Raees Pal corroborated the manner of attack as narrated in the written report of the occurrence Ext. Ka1. He lastly submitted that there being no legally admissible evidence on record for establishing the guilt of the appellant, neither the recorded conviction of the appellant nor the sentence awarded to him can be sustained and are liable to be set aside. 10. Per contra Sri Saghir Ahmad, learned A.G.A. vehemently submitted that the defence Counsel having failed to dispute the police report by making an endorsement 'admitted' on the back of the charge-sheet Ext. Ka15, there was no necessity for the prosecution to produce the Investigating Officer of the case for proving the statements of the witnesses recorded by him during investigation in which they had fully supported the prosecution case which constituted an integral part of the case diary by not disputing the charge-sheet Ext. Ka15, the defence had not only admitted the contents of the charge-sheet but also those of the case diary including the police statements to be true. Ka15, the defence had not only admitted the contents of the charge-sheet but also those of the case diary including the police statements to be true. He next submitted that the conviction of the appellant recorded by the Trial Court is based upon cogent and relevant considerations warranting no interference by this Court. This appeal lacks merit and is liable to be dismissed. 11. The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the accused-appellant beyond all reasonable doubts or not? 12. Record of this case shows that the accused-appellant Chandra Shekhar was tried and convicted by the learned Trial Judge for having committed the murder of his father by causing injuries to him with an iron rod in the deceased's field at about 6:30 P.M. on 19.11.2008 where work of boring was in progress in the presence of PW-1 Kishan Pal, real brother of the deceased. The written report of the occurrence Ext. Ka1 was given by the PW-1 Kishan Pal at P.S. Hasayan on the same day at about 6:30 P.M. 13. PW-1 Kishan Pal informant of this case and the real brother of the deceased in his examination-in-chief supported the prosecution case and proved the written report of the occurrence Ext. Ka1 but on page 2 of the paper book he in his cross-examination categorically deposed that the information about the death of Raees Pal was given to him by his neighbour-Har Prasad and the written report of the incident was prepared on the next day in the morning in the police station on the dictation of darogaji. He further deposed that he had neither seen Chandra Shekhar beating his father Raees Pal nor the Investigating Officer had recorded his statement under section 161 Cr.P.C. Upon being confronted with his statement recorded under section 161 Cr.P.C. which was read out to him, he categorically denied having given any such statement to the Investigating Officer. Therefore, he was declared hostile and cross-examined by the prosecution Counsel with the permission of the Trial Court. 14. Therefore, he was declared hostile and cross-examined by the prosecution Counsel with the permission of the Trial Court. 14. Upon being confronted with the facts deposed by him in his examination-in-chief on 8.9.2009 in which he had fully supported the prosecution case, he deposed that the prosecution Counsel had told him to state the same facts in his evidence which were written in the written report of the incident at the behest of the Investigating Officer otherwise proceedings would be drawn against him also and it was on account of the aforesaid threat extended to him by the prosecution Counsel that he in his examination-in-chief had supported the prosecution case. On the same page, he also stated that the Investigating Officer had before obtaining his signature on the inquest report had neither disclosed to him the nature of the document on which his signature was sought nor the same was read out to him. He further deposed that Raees Pal had died on 19.11.2009. The information about his death was given to him by Har Prasad at about 11:00 P.M. The police, upon receiving information about the incident from some other source had arrived at the place of the occurrence in the night itself. He denied having witnessed the occurrence. The prosecution despite cross-examining him at some length failed to elicit anything out of him which could lend support to the prosecution story or indicate that PW-1 had supported the prosecution in his examination-in-chief voluntarily except that he had admitted his signature on Ext. Ka1 written report of the occurrence which was scribed in the police station Hasayan on the dictation of the police personnel. 15. PW-2 Har Prasad in his examination-in-chief categorically denied having seen the accused-appellant Chandra Shekhar attacking the Raees Pal with an iron rod and further deposed that no such incident as narrated in the F.I.R. had taken place in his presence, PW-2 was also declared hostile and cross-examined by the DGC (criminal) with the permission of the Trial Court. However when he was confronted with his statement recorded under section 161 Cr.P.C. and contents thereof were read out to him, he also denied having given any such statement to the Investigating Officer. 16. PW-3 Prabhawati, wife of the deceased in her examination-in-chief denied that the accused-appellant Chandra Shekhar had confessed before her that he had committed the murder of his father Raees Pal. 16. PW-3 Prabhawati, wife of the deceased in her examination-in-chief denied that the accused-appellant Chandra Shekhar had confessed before her that he had committed the murder of his father Raees Pal. She was also declared hostile and cross-examined but she dinged to the facts deposed by her in her examination-in-chief. 17. PW-4 Rajveer Singh, the witness of inquest admitted that the inquest on the dead body of the deceased-Raees Pal was conducted by the Investigating Officer in his presence and he and the other inquest witnesses had put their signatures on the inquest report Ext. Ka2. He however, in his cross-examination stated that the Investigating Officer had obtained his signature on the inquest report in the police station. PW-5, the witness of recovery of one iron pipe stained with blood and one dharanti (sickle) from the place of occurrence on 20.11.2008 also failed to support the recovery of the aforesaid incriminating articles in his examination-in-chief. He was also declared hostile. Although he was cross-examined by the DGC (criminal) but he stuck to his evidence given by him in his examination-in-chief. It is interesting to note that all the three witnesses of fact upon being contradicted with their statements recorded under section 161 Cr.P.C. had denied having given any such statements before the Investigating Officer. The Investigating Officer of the case who would have been the best person to prove by referring to the statements of the witnesses recorded under section 161 Cr.P.C. that they had made those statements, was not examined by the prosecution during the trial. The question which arises for our consideration is that whether despite the failure of prosecution to produce the Investigating Officer as witness, reliance can be placed upon the statements made by the witnesses in this case before the Investigating Officer for the purpose of contradicting them. 18. In the case of Tahsildar Singh (supra) the constitutional Bench of the Apex Court examined the scope of section 162 and its proviso which was concaved to enable the accused to rely upon the statement made by witness before a police officer for a limited purpose of contradicting a witness in the manner provided by section 145 of the Evidence Act by drawing his attention to the parts of the statement intended for contradictions. Per Majority view as expressed in paragraph 26 of the aforesaid judgment, the Apex Court held as here under: "From the foregoing discussion the following propositions emerge: (1) A. statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness-box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement; illustration: in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness-box he says that he saw A and C stabbing B at the same point of time in the statement before the police the word "only" can be implied, i.e. the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement; illustration: in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness-box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion and (iii) when the statement before the police and that before the Court cannot stand together; illustration: the witness says in the recorded 904 statement before the police that A after stabbing B ran away by a northern lane, but in the Court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing, i.e., at the same point of time, towards the northern lane." 19. While dealing with the same issue the Apex Court in paragraph 19 of its judgment rendered in the case of V.K. Mishra (supra) has laid down as here under: "19. While dealing with the same issue the Apex Court in paragraph 19 of its judgment rendered in the case of V.K. Mishra (supra) has laid down as here under: "19. Under section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the Trial Court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when Investigating Officer is examined in the Court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the Investigating Officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the Court cannot suo moto make use of statements to police not proved in compliance with section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction." 20. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the Court cannot suo moto make use of statements to police not proved in compliance with section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction." 20. Thus what follows from the reading of the above judgments is that when it is intended to contradict a witness by his previous statement reduced into writing, the attention of such witness must be first drawn to his earlier statement reduced into writing which is to be used for the purpose of contradicting him. If the witness on his attention being drawn to the police statement by which it is intended to contradict him admits the statement, it stands proved and there is no need of further proof of contradiction but if he denies having made that statement, his attention must be drawn to that statement. Thereafter when the Investigating Officer is examined in the Court, his attention should be drawn to the statement for the purpose of contradiction, it will then be proved in the deposition of the Investigating Officer who again by referring to the police statement will depose about the witness having made that statement. The Court cannot suo moto make use of statements made to police not proved in accordance with section 145 of Evidence Act. 21. In the present case, all the three witnesses of fact, PW-1, PW-2 and PW-3 Kishan Pal, Har Prasad and Prabhawati after they had failed to support the prosecution case, were declared hostile. They were cross-examined by the prosecution and their attention was drawn to their statements reduced into writing during investigation but they denied having given him any such statements. Even then the prosecution failed to produce the Investigating Officer of the case for proving the contradictions. Thus the statements made by PW-1, PW-2 and PW-3 Kishan Pal, Har Prasad and Prabhawati before the police cannot be said to be proved in accordance with section 145 of the Evidence Act. 22. Even then the prosecution failed to produce the Investigating Officer of the case for proving the contradictions. Thus the statements made by PW-1, PW-2 and PW-3 Kishan Pal, Har Prasad and Prabhawati before the police cannot be said to be proved in accordance with section 145 of the Evidence Act. 22. A feeble attempt was made by Sri Saghir Ahmad to persuade us that it was not necessary for the prosecution to produce the Investigating Officer for proving the statements made by PW-1, PW-2 and PW-3 Kishan Pal, Har Prasad and Prabhawati under section 161 Cr.P.C. as the contents of charge sheet (police report under section 173(2) Cr.P.C.) filed in this matter were not disputed by the defence Counsel and by necessary implication it followed that the contents of the CD prepared by the Investigating Officer during the investigation also stood admitted to the defence and hence the police statements which were part of the case diary were admissible in evidence without formal proof under section 294(3) Cr.P.C. 23. We do not find any merit in the aforesaid submission advanced by Sri Saghir Ahmad, learned A.G.A. for the following reasons: (1) The police report which is prepared under section 173(2) Cr.P.C. which is in common parlance referred to as charge-sheet or the final report as context requires has been defined in section 2 of sub-section 8 of the Cr.P.C. as the report forwarded by the police officer to a Magistrate under sub-section 2 of section 173(2) Cr.P.C. which spells out the prescribed form of the police report which is being extracted here-in-below: (2)(i) As soon as it is completed, the Officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating:- (a) the names of the parties. (b) the nature of the information. (c) the names of persons who appear to be acquainted with the circumstances of the case. (d) whether any offence appears to have been committed and if so, by whom. (e) whether the accused has been arrested. (f) whether he has been released on his bond and, if so, whether with or without sureties. (g) whether he has been forwarded in custody under section 170. (d) whether any offence appears to have been committed and if so, by whom. (e) whether the accused has been arrested. (f) whether he has been released on his bond and, if so, whether with or without sureties. (g) whether he has been forwarded in custody under section 170. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was F.I.R. given. (2) There is nothing in section 173(2) Cr.P.C. which may even remotely indicate that the case diary prepared by the Investigating Officer during the investigation shall form part of the report of police officer submitted on completion of the investigation under sub-section 2 and therefore, admitting the genuineness of the police report/charge-sheet submitted under section 173(2) Cr.P.C. would not tantamount to admitting the genuineness of the contents of the case diary also rendering the same admissible in evidence without formal proof under sub-section 3 of section 294 Cr.P.C. 24. Bloodstained iron rod and dharanti (sickle) allegedly recovered from the place of occurrence were never sent to the forensic lab. Thus there is no link evidence on record connecting the aforesaid recovered weapons with the murder of the deceased. Even the plain and bloodstained earth collected from the place of occurrence were not sent for chemical analysis. It is true that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution choose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that his version is found to be dependable on a careful scrutiny thereof. 25. In the present case, PW-1 Kishan Pal was the solitary witness who had supported the prosecution case in his examination-in-chief. However he had turned hostile during his cross-examination by the prosecution Counsel but he in his cross-examination had given plausible and tangible reasons for supporting the prosecution case in his examination-in-chief which we do not find any reason to disbelieve. He had further denied having made any statement before the Investigating Officer supporting the prosecution. Moreover PW-2 and PW-3 Har Prasad and Prabhawati had failed to support the prosecution case right from the inception. He had further denied having made any statement before the Investigating Officer supporting the prosecution. Moreover PW-2 and PW-3 Har Prasad and Prabhawati had failed to support the prosecution case right from the inception. The prosecution failed to challenge or rebut the correctness of facts deposed by PW-1, Kishan Pal in his cross-examination and those by PW-2 Har Prasad and PW-3 Prabhawati in their evidence tendered before the Trial Court by examining the Investigating Officer whose testimony may have lend credence to the fact that he had sincerely and honestly conducted the entire investigation of the case and the prosecution witnesses were trying to conceal material facts in the Court with the sole purpose of shielding and protecting the accused-appellant. 26. Thus in view of the foregoing discussion, we hold that the prosecution failed to prove by any cogent and reliable evidence that the accused-appellant had committed the murder of his father Raees Pal. From the evidence of PW-1, PW-2 and PW-3 Kishan Pal, Har Prasad and Prabhawati, it transpires that no one had witnessed the occurrence, the information regarding the death of Raees Pal was given to PW-1, Kishan Pal by PW-2 Har Prasad. The police had arrived at the place of occurrence in the night itself. Although the written report of the incident was given by PW-1 Kishan Pal at the police station but the same was scribed on the dictation of some police officer darogaji. All the three eye-witnesses PW-1, PW-2 and PW-3 Kishan Pal, Har Prasad and Prabhawati had denied having made any statement before the police during investigation supporting the prosecution case. The prosecution had failed to examine the Investigating Officer of the case who would have been the best person to prove the police statements. 27. Thus in view of the foregoing discussion neither the recorded conviction of the appellant nor the sentence awarded to him can be sustained and are liable to be set aside. 28. These are the reasons upon which we set aside the impugned judgment and order.