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2018 DIGILAW 994 (ALL)

Roopchand v. State of U. P.

2018-04-23

ANIL KUMAR, SANJAY HARKAULI

body2018
JUDGMENT & ORDER : Anil Kumar, J. Heard Shri Rajesh Kumar Dwivedi, learned amicus curiae for the appellant and Ms. Nand Prabha Shukla, learned Additional Government Advocate for the respondent - State and perused the record. 2. Present appeal has been filed by the accused - appellant against the judgment and order dated 04.07.2007 passed by learned Additional District and Sessions Judge, Ambedkar Nagar in Sessions Trial No.5 of 2004 arising out of Case Crime No.81 of 2003, under Section 302 of IPC, P.S. - Ibrahimpur, District Ambedkar Nagar thereby convicting the appellant under Section 302 of IPC for life imprisonment and awarding Rs.10,000/- as fine. 3. Prosecution has set into motion on the basis of an FIR lodged on 11.10.2003 at 07:50 AM by complainant Virendra Kumar son of Late Ramshabd Chamar resident of Badruddinpur, District - Ambedkar Nagar that at about 5:00 AM his elder brother Roopchand who is separately residing with his wife Pushpa due to some difference between his wife and mother Maina Devi. Inspite of the fact that they are living separately the dispute used to take place upon which the wife of his elder brother (Roopchand) had gone to her maternal home situate at village Sonahra, District Ambedkar Nagar. Due to the said fact the accused - appellant Roopchand was annoyed and when his mother was sleeping on a cot, assaulted her on the face with Garasa. After hearing her noise, the complainant alongwith his younger sister Meera, younger brother Arvind and other residents of the same village namely Shyamlal and Ram Sundar reached at the place of occurrence and saw the incidence. 4. Accordingly, the matter was entrusted to Sub-Inspector Shiv Veer Singh of P.S.- Ibrahimpur, District Ambedkar Nagar who prepared the inquest report, sent the body of the deceased (Maina Devi) for post-mortem and recorded the statements of the persons, who are named in the FIR under Section 161 Cr.P.C, recovered the weapon of assault Garasa used for committing crime, at the pointing out of the accused - appellant. In presence of Ram Sundar, charge-sheet has been submitted in Case Crime No.81 of 2003, under Section 302 of IPC. 5. Thereafter, the case was referred to the Court of Additional District and Sessions Judge, Ambedkar Nagar where it has been registered as S.T. No.05 of 2004 (State Vs. Roopchand). 6. In presence of Ram Sundar, charge-sheet has been submitted in Case Crime No.81 of 2003, under Section 302 of IPC. 5. Thereafter, the case was referred to the Court of Additional District and Sessions Judge, Ambedkar Nagar where it has been registered as S.T. No.05 of 2004 (State Vs. Roopchand). 6. Prosecution in order to prove its case has produced P.W.-1 Ram Sundar, P.W.-2 Km. Meera - younger sister of the complainant, P.W.-3 Arvind - younger brother of the complainant, P.W.- 4 Virendra Kumar - Complainant & P.W.- 5 Smt. Sushila - elder sister of the complainant. 7. Accused - appellant in his statement under Section 313 Cr.P.C. has denied the guilt. 8. Trial Court after taking into consideration the material on record passed the judgment of conviction dated 04.07.2007 against the accused - appellant on the ground that the weapon of assault i.e. Garasa used for committing the crime, has been recovered by the police on the pointing out of the accused - appellant himself in the presence of independent witness namely P.W.-1 Ram Sundar on 11.10.2003. 9. Trial Court has also taken into consideration that the weapon (Garasa) used for committing the crime, as per the FSL Report, human blood was found on it and given a finding that from the statements given by P.W.-2 to P.W.-5, it is established that the crime in question has been committed by the accused - appellant. 10. Shri Rajesh Dwivedi, learned amicus curiae while challenging the judgment dated 04.07.2007 has argued that in the instant matter, the FIR had been lodged on the version of P.W.- 4 Virendra Kumar - younger brother of the accused - which was written by P.W.- 1 Ram Sundar on his behalf. However, during cross-examination the complainant denied the said fact and stated that the facts mentioned in the FIR are incorrect, as the same are not narrated to Ram Sundar, who has written the FIR on his behalf, that he had seen the accused - appellant assaulting his mother on her face and when they ran to save Maina Devi, accused Roopchand rushed toward the north side of the village. 11. Accordingly, he submitted that the version of the FIR is incorrect and once the facts stated in the FIR are fabricated ones then the entire case of the prosecution fails. 11. Accordingly, he submitted that the version of the FIR is incorrect and once the facts stated in the FIR are fabricated ones then the entire case of the prosecution fails. In support of his arguments, he has placed reliance on the judgment given by the Hon'ble Apex Court in the case of Marudanal Augusti Vs. State of Kerala, (1980) 4 SCC 425 . 12. Next argument raised by Shri Rajesh Dwivedi, learned amicus curiae that the blood stained earth and plain earth soil samples have not been produced before the trial Court. It is the duty of the prosecution to do such act, once the prosecution has not discharged the same, the prosecution case is liable to be rejected, benefits should be given to the accused - appellant. In this regard, he has placed reliance on the judgment given by the Hon'ble Apex Court in the case of Lakshmi Singh & Ors. Vs. State of Bihar, (1976) AIR SC 2263. 13. Doctor who has conducted the post-mortem has not been examined as a witness by the prosecution in order to establish that the weapon which has been recovered is the same weapon by which the deceased sustained injury. Even the said weapon was not produced before the trial Court, as the same was not done so it amounts to be failure on the part of the prosecution to establish the guilt of the accused. To support his argument, reliance has been placed on the judgment given by the Hon'ble Apex Court in the case of Ishwar Singh Vs. State of U.P., (1976) AIR SC 2423. 14. Another submission made is that on the basis of the FSL Report it cannot be established that the blood found on the soil and Garasa is of human blood as it was disintegrated one. 15. Inspite of commission of a cognizable offence, no report is said to have been promptly dispatched to superior police officer. In the circumstances, a doubt arises regarding ante-timing of the FIR which should be presumed to have been recorded with delay and not at the time stated in the general diary of the police station. 16. 15. Inspite of commission of a cognizable offence, no report is said to have been promptly dispatched to superior police officer. In the circumstances, a doubt arises regarding ante-timing of the FIR which should be presumed to have been recorded with delay and not at the time stated in the general diary of the police station. 16. Lastly, it has been argued that only on the basis of the circumstantial evidence and suspicion, the trial Court has passed the judgment of conviction, so the same is liable to be set aside as it is settled principle of law that only on the circumstantial evidence coupled with the suspicion, no conviction order shall be passed. 17. Learned AGA for the respondent - State while supporting the judgment submits that the version of the FIR is fully corroborated and supported by the evidence given by the prosecution witnesses namely P.W.-2 Meera - sister of the complainant, and P.W.-3 Arvind - younger brother of the complainant; taking into consideration, and the law laid down by Hon'ble the Apex Court in the case of Rajendra and Anr. Vs. State of U.P., (2009) 13 SCC 480 . Paragraphs No. 24 and 25 of which are extracted hereinunder:- "24. Apart from the statements made by PW 1 and PW 4 which are sufficient to bring home the charges as against the appellant herein, we may also notice that although PW 3 was declared hostile, he also, to some extent, supported the prosecution case. Indisputably, the said witness had gone back from his statement made before the investigating officer under Section 161 of Code of Criminal Procedure. In his deposition, however, Surajbhan stated that he had seen a crowd and had also witnessed that Ratiram was being taken out of the well. Although according to him he had not seen Narpat, Rajendra and Richhpal dropping Ratiram into the well, in his cross-examination he stated as under:- "on the place of incidence large crowd was assembled and some of them were speaking that Narpat and Rajendra had thrown Ratiram into well. I don't know the names of those persons so I cannot tell about them." Thus, the fact that immediately after the death a crowd had assembled and people were talking about the death having been caused to the deceased by Narpat and Rajendra, to some extent, supported the prosecution case. 25. I don't know the names of those persons so I cannot tell about them." Thus, the fact that immediately after the death a crowd had assembled and people were talking about the death having been caused to the deceased by Narpat and Rajendra, to some extent, supported the prosecution case. 25. Both, Munna and Surajbhan were named as witnesses in the FIR. Although they were declared hostile, a part of their statement can be taken into consideration for the purpose of finding out as to whether the appellants are guilty of commission of the said offences or not. It is a well-settled law that the evidence of a hostile witness may not be totally rejected, and subject to close scrutiny, a portion thereof which is consistent with the case of the prosecution or defence, may be accepted." 18. If there is some inconsistence in the version of the FIR and the statement of complainant in the FIR then on the basis of the same, defence cannot be accepted, the version should be taken to be true. 19. From the bare perusal of the Item No.6 of the FSL Report, the position which emerges is to the effect that on the weapon (Garasa) which is used for committing the crime, there is human blood. Learned AGA has also made a submission to the effect that the weapon (Garasa) which has been used for committing the crime has been recovered on the pointing out of the accused in front of the independent witness P.W.-1 Ram Sundar. 20. Accordingly, learned AGA submits that there is no infirmity or illegality in the judgment of conviction of the accused - appellant passed by the trial Court. 21. We have heard learned counsel for the parties and gone through the record. 22. Before averting the arguments which were raised by learned counsel for the parties, it would be appropriate to go through the evidence laid from the side of the prosecution. 23. Ram Sundar (P.W. - 1) in his evidence stated that on the date of incident i.e. 11.10.2003 he was not present at the house of deceased (Maina Devi), only after hearing the noise, he went to the house of the deceased, where he had seen that due to assault on the face of Maina Devi, she had died and on the spot Virendra Kumar, Km. Meera and other family members alongwith some villagers were present. 24. He further stated that he has not seen the accused Roopchand assaulting his mother with Garasa but he has signed the inquest report. And on 11.10.2003, a Garasa used for committing the crime has been recovered on the pointing out the accused Roopchand in his presence, he signed the recovery memo. P.W.-1 has been declared as a hostile witness. 25. P.W. - 2 Km. Meera in her statement stated that there was a difference between his mother Maina Devi (deceased) and her sister-in-law Pushpa (wife of the accused), as a result of which her sister-in-law has left her matrimonial home about one and half months back. On the date of incident, her mother was sleeping beneath the Chappar, while she was sleeping in Dalaan. Next morning when she woke up, she saw her mother's dead body and not seen that her mother was killed by Roopchand by Garasa. The said witness has also been declared as hostile. 26. P.W.-3 Arvind - the real brother of the complainant - in his statement has stated that he was also sleeping in Dalaan alongwith his sister while his mother was sleeping beneath the Chappar and not seen that the incident in question has been committed by his elder brother Roopchand (accused). This witness has also been declared hostile. 27. P.W.- 4 Virendra Kumar (complainant) in his statement submits that on his version, the FIR has been written by P.W.-1 Ram Sundar and he has signed the FIR. He has further stated that when after hearing the noise he came out, he found that his mother Maina Devi had died due to injury on his neck but not seen that the Roopchand (accused) has assaulted his mother by way of Garasa. In his cross-examination, P.W.-4 complainant has submitted that he has not stated to the author of the FIR Ram Sundar who has written the FIR on his behalf that Roopchand (accused) has assaulted his mother on face/neck and he alongwith some other persons had run to catch the accused Roopchand, but he has signed the FIR written by Ram Sundar. P.W.-4 Virendra Kumar has also been declared hostile. 28. Smt. Sushila - the elder sister of the deceased has been produced as P.W.-5. In her statement, she has stated that she has not seen who has killed her mother. P.W.-4 Virendra Kumar has also been declared hostile. 28. Smt. Sushila - the elder sister of the deceased has been produced as P.W.-5. In her statement, she has stated that she has not seen who has killed her mother. She has also been declared hostile. 29. Shri B.C. Verma, Medical Officer, C.H.C. Tanda, Ambedkar Nagar has done post-mortem and the injuries as mentioned there are as under :- (1) 1 cm 7 cm x 1 cm x bone deep on right side face 1cm below right eye. (2) 1 cm 7 cm x 2 cm x bone deep on right face 1 cm below inj no.1. (3) 1 cm 10 cm x 2 cm x bone deep on right side face 1.5 cm below inj no.2. (4) 1 cm 3 cm x 1 cm front of neck 4 cm above sternal notch trachea cut (full) at site of inj. 30. By now it is well settled that in a criminal trial evidence of the eye-witness requires a careful assessment and needs to be evaluated for its creditability. Hon'ble Apex Court has repeatedly held that since the fundamental aspect of criminal jurisprudence rests upon the well established principle that "no man is guilty until proved so", utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses testifying before the Court and there must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. Evidence of the eyewitness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the principle that "no man is guilty until proven so." (See: C. Magesh and others Vs. State of Karnataka, (2010) 5 SCC 645 and Surja Singh Vs. State of U.P., (2008) 16 SCC 686 ). 31. Evidence of the eyewitness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the principle that "no man is guilty until proven so." (See: C. Magesh and others Vs. State of Karnataka, (2010) 5 SCC 645 and Surja Singh Vs. State of U.P., (2008) 16 SCC 686 ). 31. In the instant case after perusing the FIR and the statement of witnesses as well as exhibits placed on record, the position which emerge out that as per the contents of the FIR lodged by Virendra Kumar, his mother Maina Devi has died due to assault made by his elder brother (accused) by Garasa on her neck and at the time of the incident, he alongwith his younger sister Meera and younger brother Arvind and his neighbours Shyamlal and Ram Sundar were present. 32. However, prosecution witnesses P.W.-4 Virendra Kumar, P.W.-2 Km. Meera, P.W.-3 Arvind, in their statements/cross-examination have categorically stated that they had not seen the accused Roopchand assaulting Smt. Maina Devi. 33. So, the version of the FIR has not been supported by any of the prosecution witnesses, once the version of the FIR has not been supported by the prosecution, practically that is to say the prosecution has failed to establish the contents of the FIR then the entire case of the prosecution fails, as held by Hon'ble the Apex Court in the case of Meharaj Singh (L/Nk.) Vs. State of U.P., (1994) 5 SCC 188 that the version of the FIR should be proved by the prosecution and if on the basis of the evidence in a particular matter the position which emerges out of the fact that the story as set up by the prosecution is a fabricated one then in that circumstances, the entire case of the prosecution will collapse and the accused cannot be convicted. Accordingly after examining the material on record we have no hesitation to hold that the entire story as set up in the FIR has not been established/proved by the prosecution by way of any cogent evidence. 34. From record we find that the blood stained earth and plain earth although had been taken by the prosecution but the same was not produced before the Court. The autopsy report has been brought on record but the doctor who has conducted the same, has not been produced as a witness. 34. From record we find that the blood stained earth and plain earth although had been taken by the prosecution but the same was not produced before the Court. The autopsy report has been brought on record but the doctor who has conducted the same, has not been produced as a witness. 35. Although the recovery of the weapon i.e. Garasa used for committing crime has been recovered on the pointing out of the accused but the same was not produced by the prosecution before the trial Court. 36. In view of the said facts as well as the well-settled principles that "it is not necessary for the defence to prove its case with the same rigour as the prosecution is required to prove its case, and it is sufficient if the defence succeeds in throwing a reasonable doubt on the prosecution case which is sufficient to enable the Court to reject the prosecution version. (Lakshmi Singh Vs. State of Bihar, (1976) AIR SC 2263). 37. And as held by the Hon'ble Apex Court in the case of Ishwar Singh that "it is the duty of the prosecution and no less of the court to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice." As in the instant case, prosecution has failed to discharge his above said duties, so the accused - appellant be given a benefit of doubt. Because the Hon'ble Apex Court in Harbeer Singh Vs. Sheeshpal and Ors., (2016) 16 SCC 418, has held that:- "It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runts through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, on pointing to the guilt of the accused and the other of his innocence, the view which is favourable to the accused should be adopted." 38. Another golden thread which runts through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, on pointing to the guilt of the accused and the other of his innocence, the view which is favourable to the accused should be adopted." 38. In the instant case, the conviction has been awarded to the accused - appellant on the basis of the circumstantial evidence coupled with suspicion. 39. The Hon'ble Apex Court in the case of Padala Veera Reddy Vs. State of Andhra Pradesh & Ors., (1990) AIR SC 79 and Raja @ Rajinder Vs. State of Haryana, (2015) 11 SCC 43 has held that when a conviction can be awarded to an accused with the aid of the circumstantial evidence coupled with suspicion and the factual matrix of the case clearly shows that the case of the prosecution clearly hinges on circumstantial evidence. When a case rests on circumstantial evidence, the Court has to be satisfied on the following grounds: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 40. In the case of Padala Veera Reddy the Hon'ble Apex Court has also held:- 19. this Court in Palvinder Kaur v. The State of Punjab, (1953) SCR 94 has pointed out that in cases depending on circumstantial evidence Courts should safeguard themselves against the danger of basing their conclusions on suspicions howsoever strong. 20. In Chandrakant Ganpat Sovitkar v. State of Maharashtra, (1975) 3 SCC 16 it has been observed : "It is well settled that no one can be convicted on the basis of mere suspicion, though strong it may be. 20. In Chandrakant Ganpat Sovitkar v. State of Maharashtra, (1975) 3 SCC 16 it has been observed : "It is well settled that no one can be convicted on the basis of mere suspicion, though strong it may be. It also cannot be disputed that when we take into account the conduct of an accused, his conduct must be looked at in its entirety" 21. In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , this Court has reiterated the above dictum and pointed out that the suspicion, however, great it may be, cannot take the place of legal proof and that "fouler the crime higher the proof". 41. Thus, the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof. 42. As we have pointed out in the earlier part of the judgment that the trial Court in convicting the appellant has overlooked certain significant facts of the case namely that the facts which were mentioned in the FIR has not been proved or established by the prosecution and all the witnesses who have been produced by the prosecution to establish that they have seen the existence of the crime, have in their statements categorically stated that they had not seen that crime in question. The non-examination of the doctor who has done the autopsy and the weapon which is said to have been used for committing the crime has not been produced in order to prove that the injury has been caused by the same weapon and the weapon (Garasa) which has been used for committing the crime has also not been produced or brought by the prosecution before the trial Court. Therefore, we are in the opinion that while passing the judgment of conviction, the trial Court has failed to avert the circumstances. Accordingly, we came to the conclusion that the prosecution has failed to prove the case beyond reasonable doubt and only on the basis of mere suspicion, the conviction has been awarded to the accused. 43. For the foregoing reasons, we allow the appeal and set aside the judgment and order dated 04.07.2007 passed by learned Additional District and Sessions Judge, Ambedkar Nagar in Sessions Trial No.5 of 2004 arising out of Case Crime No.81 of 2003, under Section 302 of IPC, P.S. - Ibrahimpur, District Ambedkar Nagar. 44. For the assistance given by amicus curiae Shri Rajesh Kumar Dwivedi, for adjudicating the case, we direct the State Government to pay him Rs.20,000/- as his legal fees.