Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 2472 (ALL)

Ram Kishun @ Ghasi Yadav v. State of U. P.

2018-12-05

GOVIND MATHUR, YOGENDRA KUMAR SRIVASTAVA

body2018
JUDGMENT : GOVIND MATHUR, C.J. 1. This appeal is before us to examine correctness of the judgment dated 15.03.2018 passed by learned Additional Sessions Judge/F.T.C. Ist, Chandauli in Sessions Case No. 57 of 2006. 2. Under the judgment impugned, trial Court recorded conviction of accused appellant Ram Kishun @ Ghasi Yadav for an offence punishable under Section 302 I.P.C. and awarded sentence to undergo life term imprisonment with a fine of Rs. 25,000/-and further to undergo six months additional imprisonment in the event of default in payment of fine. 3. In brief, the facts of the case are that on 12.04.2005, Ram Kishun @ Ghasi Yadav resident of Kundakhurd, Police Station Mugalsarai, District Chandauli submitted a written report at Police Station Mugalsarai with assertion that he is only son of his parents and is having six sisters. The informant is in service at Nasik and used to visit his house once or twice in a year for a period of a month or two. The younger sister is Urmila @ Sunita aged about 18 years. Urmila used to visit residence of Murari Yadav resident of Tadpar, Police Station Chaubeypur, Varanasi, her brother-in-law with consent of her parents. He came to his home two or three days earlier on the occasion of Holi. He requested her parents Devnath Yadav and Kamli Devi to make efforts for marriage of Sunita but Murari Yadav intervened in the matter with a stand that no marriage of Sunita shall take place. In the evening of fateful day, the informant conveyed his parents that he has identified a boy resident of Village Manjhawa, District Mirzapur for marriage of Sunita but her parents refused for that with a stand that Sunita would live with Murari Yadav and she will not enter in any wedlock. A rumour was also there in the village about illicit relations of Sunita with Murari Yadav and this relation is having consent of her parents Devnath Yadav and Kamli Devi. Being feeling insulted, the informant caused murder of Devnath Yadav and Kamli Devi with the aid of gandasa. The weapon of offence was thrown in a well. 4. On basis of the written report submitted by the informant Ram Kishun @ Ghasi Yadav in the terms aforesaid, a criminal case was registered for an offence punishable under Section 302 I.P.C. and investigation commenced. The weapon of offence was thrown in a well. 4. On basis of the written report submitted by the informant Ram Kishun @ Ghasi Yadav in the terms aforesaid, a criminal case was registered for an offence punishable under Section 302 I.P.C. and investigation commenced. During course of the investigation, weapon of offence (gandasa) was recovered and a memo of inquest (Ex. A-1) was prepared. Certain other documents too were prepared relating to the investigation. The autopsy on the corpus of deceased persons was made by Dr. S.K. Gautam and the reports of that are available on record as Ex. A-23 and Ex. A-24. 5. After completing the entire investigation, a police report as per provisions of Section 173 Code of Criminal Procedure, 1973 was filed before the competent Court. The matter being sessions triable was committed to the Court of Sessions and then was transferred for its adjudication to the Court of learned Additional Sessions Judge/F.T.C. Ist, Chandauli. 6. The trial Court on basis of the material available framed a charge for commission of offence under Section 302 I.P.C. and on denial of the same, trial commenced as desired. The prosecution supported its case with the aid of 13 witnesses and certain documents prepared during the course of investigation. An opportunity was given to the accused to explain the adverse and incriminating material available in prosecution evidence against him. The accused while alleging that he has been falsely implicated in the case termed the entire evidence false with explanation that his parents were killed by Bhaggu Yadav, Munna Yadav, Ram Aasre and Basant Lal. 7. In defence, testimony of Smt. Sunita Devi @ Urmila (DW-1) and Dr. Sanjeev Verma (DW-2) was examined and a document, i.e., injury report given by Dr. Sanjeev Verma (DW-2) was exhibited as Ex.B-1. 8. The medical evidence available on record is sufficient to arrive at the conclusion that death of Devnath Yadav and Kamli Devi was homicidal and, as such, no need is there to discuss the other evidence in that regard. The trial Court after examining the entire evidence available on record held the appellant guilty for an offence punishable under Section 302 I.P.C. Accordingly, recorded his conviction and awarded the sentence. Being aggrieved by the conviction recorded and sentence awarded, this appeal is before us. 9. The trial Court after examining the entire evidence available on record held the appellant guilty for an offence punishable under Section 302 I.P.C. Accordingly, recorded his conviction and awarded the sentence. Being aggrieved by the conviction recorded and sentence awarded, this appeal is before us. 9. Learned counsel for the appellant has questioned correctness of the findings arrived by the trial Court on several counts including that; (1) trial Court committed a grave error by examining testimony of accused himself as prosecution witness. As per learned counsel, accused in no case could have been brought into witness box against himself; (2) the evidence adduced by the prosecution suffers from severe discrepancies and that is not sufficient to indicate only one conclusion about involvement of the appellant in the crime in question; (3) trial Court severely erred while relying upon the evidence pertaining to recovery of the weapon of offence. It is asserted that at the instance of accused, a disclosure was made made and on basis of that, weapon of offence was searched in a well but the same was not found there. The weapon of offence, as a matter of fact, was searched in a different well without having any information in that regard from the accused appellant. Such recovery as per learned counsel could have not been taken into consideration as an adverse material to record guilt of the accused appellant. 10. Per contra, as per learned Additional Government Advocate, there is no wrong in entire trial as the sufficient material is available on record to conclude positive involvement of the accused appellant in the crime in question. 11. Heard learned counsels and also scanned the entire record. 12. Looking to the medical evidence available on record, there is no doubt about homicidal death of Devnath Yadav and Kamli Devi. The trial Court has also recorded statements of accused as prosecution witness and on basis of that verified the first information report and the contents thereof. This witness though was declared hostile but the trial Court relied upon that to the extent that supported the prosecution story. The trial Court at its own asked certain questions to ascertain submission of the report and also contents thereof. 13. This witness though was declared hostile but the trial Court relied upon that to the extent that supported the prosecution story. The trial Court at its own asked certain questions to ascertain submission of the report and also contents thereof. 13. It is well settled that first information report is not a substantive piece of evidence but that can be used only to corroborate the information given under Section 157 of the Evidence Act or to contradict as per Section 145 of the Evidence Act. No part of the contents of the first information report, as that is in the instant matter, can be said to be confessional statement acceptable in evidence in light of the provisions of Section 25 of the Evidence Act. The foundation of the judgment of the trial Court recording conviction of the appellant, as a matter of fact, is based on the evidence adduced by the accused while coming in witness box as prosecution witness and that too in relation to the tendering first information report. Reliance upon the evidence adduced by the accused as prosecution witness to the extent aforesaid is also in conflict to provisions of clause (3) of Article 20 of the Constitution of India, according to which, no accused of an offence shall be compelled to be a witness against himself. 14. It is also pertinent to notice that trial Court also relied upon the circumstances relating to recovery of the weapon of offence and as per learned counsel appearing on behalf of the accused appellant that suffers from so many contradictions. The trial Court has also not looked into the testimony of defence witnesses who in quite unambiguous terms demolished the evidence adduced by the prosecution. As a matter of fact, except the evidence adduced by the accused himself against him to the extent stated above, no other material is available to record conviction. In such circumstance, the trial Court should have looked into the defence evidence. 15. On going through the entire judgment, it is apparent that trial Court did not chose even to touch this evidence while recording conviction. 16. In entirety, the entire procedure adopted by the trial Court in the case in hand is contrary to the settled principles of having a fair and valid trial. 17. 15. On going through the entire judgment, it is apparent that trial Court did not chose even to touch this evidence while recording conviction. 16. In entirety, the entire procedure adopted by the trial Court in the case in hand is contrary to the settled principles of having a fair and valid trial. 17. In view of it, we deem it appropriate to dispose of this appeal by setting aside the judgment impugned and the conviction recorded therein with direction to the trial Court to readjudicate the matter from the stage of recording prosecution evidence. 18. Accordingly, the appeal stands disposed of. Judgment impugned dated 15.03.2018 passed by Additional Sessions Judge/F.T.C. Ist, Chandauli is set aside. The matter is remanded to the trial Court for its readjudication from the stage of recording prosecution evidence. The entire trial in pursuant to the direction given is required to be completed within a period of one year from today. 19. The accused appellant is behind the bars from the date of judgment and during the course of trial too remained behind the bars for a substantial period, therefore, we deem it appropriate to suspend his sentence till completion of the trial by the Court below, provided he furnishes two sureties each for a sum of Rs. 50,000/-and a personal bond of the same amount to the satisfaction of the trial court. The accused appellant is required to mark his attendance before the Station House Officer, Police Station Mugalsarai, District Chandauli twice in a year in between 1st to 7th January and 1st to 7th July of the year concerned.