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2019 DIGILAW 2116 (ALL)

Sewak v. State of U. P.

2019-09-12

RAJENDRA KUMAR IV, SUDHIR AGARWAL

body2019
JUDGMENT : Rajendra Kumar-IV, J. 1. Accused-appellant stood for trial in Sessions Trial No. 27 of 2009 (State v. Sewak, Case Crime No. 320 of 2008), under Section 304 IPC, Police Station Shivpur, District Varanasi, in the Court of Additional District and Sessions Judge, Court No.5, Varanasi and came to be convicted by said Court, vide judgment and order dated 07.12.2011, sentencing him under Section 304 IPC to undergo imprisonment for life and fine of Rs. 50,000/-. In default of payment of fine, he shall further undergo six months' additional imprisonment. Appellant sought interference of this Court by filing this Jail Appeal from Jail through Jail Superintendent concerned. 2. Prosecution story, in brief, as came out from First Information Report (hereinafter referred to as 'FIR') and factual matrix of the case is that accused-appellant and victim-Raja Ram were detained in Central Jail, Varansi in respective cases. On 14/15.09.2008 at about 1:00 am (mid-night), prisoner-Sewak attacked victim-Rajaram with brick. Resultantly, victim sustained serious injuries on his nose and head. He was admitted in Jail Hospital but no improvement shown, hence, on 15.09.2008, he was referred to Pandit Deen Dayal Upadhyay Hospital for better treatment. On the same day, he was further referred to Shiv Prasad Gupt, Regional Hospital, Varanasi. During treatment, on 16-17.09.2008 at about 12:20 (midnight) victim-Rajaram succumbed to injuries. 3. PW-1 submitted typed written report Ex.Ka-1 through Kundan Singh (not examined) to Station House Officer, Police Station Shivpur to lodge FIR against accused-appellant. Deceased was undergoing imprisonment under Section 302 IPC in Central Jail Varanasi. PW-1, on 17.09.2008, sent another typed communication Ex.Ka-2 to Additional City Magistrate, Varanasi requesting him to conduct inquest over the dead body deceased. Both communications were also sent to Senior Officers concerned. 4. On the basis of written report Ex.Ka-1, chick FIR, Ex.Ka-4 was registered by Constable of Police Station concerned, as Case Crime No. 320 of 2008, under Section 304, IPC against accused-appellant. Entry of case was made in General Diary. Copy whereof is Ex. Ka-5. 5. PW-8, Indrasan Singh, Additional City Magistrate held inquest on the dead body of Raja Ram, got prepared inquest report Ex Ka-2 and other papers relating thereto, and sent body for postmortem. 6. PW-10, Dr. Manoj Kumar Pathak along with Dr. S.D. Verma (not examined) conducted autopsy over dead body of prisoner Rajram and prepared postmortem report Ex. Ka-5. 5. PW-8, Indrasan Singh, Additional City Magistrate held inquest on the dead body of Raja Ram, got prepared inquest report Ex Ka-2 and other papers relating thereto, and sent body for postmortem. 6. PW-10, Dr. Manoj Kumar Pathak along with Dr. S.D. Verma (not examined) conducted autopsy over dead body of prisoner Rajram and prepared postmortem report Ex. Ka-11, expressing his opinion that death was possible at about 27 hours prior to postmortem due to coma and brain hemorrhage on account of serious head injuries. Doctor found following ante-mortem injuries : i. Lacerated wound 1cm x 3/4cm x scalp deep on the right side of forehead 2cm above right eyebrow and 4cm outer to midline. ii. Stitch wound 3cm long on the right side of forehead 1cm above right eyebrow and 4cm outer to midline. iii. Stitch wound 1cm in length present on left side of nose. iv. Contusion 20cm x 11cm on the right side of face and forehead. 7. PW-9, SI Chandra Kant Singh, commenced investigation, proceeded to spot, recorded statement of witnesses, visited place of incident, prepared site plan, Ex. Ka-9, and collected blood stained and simple earth from spot. Thereafter, he was transferred and further investigation was undertaken by SI R.N. Pandey who recorded statement of witnesses of inquest and statement of accused-appellant and after completing entire formalities of investigation, submitted charge-sheet, Ex.Ka-10, against the accused-appellant. 8. Case, being exclusively triable by Court of Sessions, was committed to Sessions Judge, wherefrom, it was transferred to Additional District and Sessions Judge, Court No.5, Varanasi for disposal in accordance with law. 9. 8. Case, being exclusively triable by Court of Sessions, was committed to Sessions Judge, wherefrom, it was transferred to Additional District and Sessions Judge, Court No.5, Varanasi for disposal in accordance with law. 9. Trial Court framed charge on 16.04.2011 against accused-appellant under Section 304 IPC, which reads as under :- ^^vkjksi eSa ujsUnz nso feJ] vij l= U;k;k/kh'k] U;k;ky; la[;k&5] okjk.klh vfHk;qDr lsod ij fuEukafdr vkjksi yxkrk gw¡%& ;g fd fnukad 14@15&9&2008 dks le; jkf= 1%00 cts LFkku dsUnzh; dkjkxkj okjk.klh pdz la0 4 cSjd la0 1 Fkkuk f'koiqj ftyk okjk.klh esa vkius lkekU; mn~ns'; fd iwfrZ esa fl)nks'k cUnh jktkjke dks tku ls ekjus dh fu;r ls bZaV ls mlds flj ij okj dj izk.k?kkrd pksVsa igqapk;s ftlds ifj.kke Lo:i bZykt ds nkSjku mijksDr jktkjke dh e`R;q gks x;hA bl izdkj vkius ,slk vijk/k dkfjr fd;k tks /kkjk 304 Hkkjrh; n.M lafgrk ds vUrxZr n.Muh; vijk/k gS vkSj bl U;k;ky; ds izlaKku esa gSA vr,o ,rn~}kjk vkidks funZsf'kr fd;k tkrk gS fd mijksDr vkjksi ds fy;s vkidk fopkj.k bl U;k;ky; }kjk fd;k tk;sA “I, Narendra Dev Mishra, Additional Sessions Judge, Court Number-5, Varanasi charge accused Sewak with following charges : That at 1.00 o’clock in the night of 14/15-9-2008, in Barrack No.-1, Chakra No.-4 of Central Jail, Varanasi under Police Station-Shivpur, District-Varanasi, you, in prosecution of your common object, attacked on the head of convicted prisoner Rajaram by brick with an intention to kill him and caused fatal injuries; in consequence whereof aforesaid Rajaram died during treatment. Thus you have committed such offence which is an offence punishable under Section 304 of Indian Penal Code and it is in the cognizance of this court. Therefore it is hereby directed that you be tried by this court for aforesaid charge." (English Translation by Court) 10. Accused-appellant pleaded not guilty and claimed trial. 11. In order to substantiate its case, prosecution examined as many as ten witnesses, out of whom PW-1, 2, 8, 9, and 10 are formal in nature and PW-3, 4, 5, 6 and 7 are witness of fact. S. No. Name of PWs Nature of witness Paper proved 1. Suresh Chandra Formal Ex. Ka-1 and 2 2. S.N. Dwivedi Formal Nil 3. Ramayan Giri Fact Nil 4. Shyam Deo Fact Nil 5. Putti Lal Fact Nil 6. Angad Dhobi Fact Nil 7. Sri Prakash Rai Fact Nil 8. Indrasan Singh Formal Ex.Ka-2,3,4,5,6,7 and 8 9. S. No. Name of PWs Nature of witness Paper proved 1. Suresh Chandra Formal Ex. Ka-1 and 2 2. S.N. Dwivedi Formal Nil 3. Ramayan Giri Fact Nil 4. Shyam Deo Fact Nil 5. Putti Lal Fact Nil 6. Angad Dhobi Fact Nil 7. Sri Prakash Rai Fact Nil 8. Indrasan Singh Formal Ex.Ka-2,3,4,5,6,7 and 8 9. SI Chandra Kant Singh Formal Ex.Ka-9 and 10 10. Dr. Manoj Kumar Pathak Formal Ex.Ka-11 12. Statement, under Section 313, was recorded by Trial Court explaining entire evidence and other incriminating circumstances. Accused -appellant denied prosecution story in toto. Entire story is said to be wrong, he claimed false implication in the case and produced DW-1 and DW-2 in defence evidence. 13. Additional District and Sessions Judge, Court No.5, Varanasi, after hearing learned counsel for parties and analysing entire evidence (oral and documentary) led by prosecution, found accused guilty, convicted and sentenced him, as stated above. 14. Sri Radhey Shyam Yadav, learned Amicus Curiae assailed impugned order of conviction and sentence, advancing following submissions : i. Evidently, incident took place in the mid-night in Central Jail Varnasi, where a number prisnors were detained but no one has come forward to support the prosecution case. ii. PW-1 and 2 are not the witnesses of fact. As per prosecution story, they were not present on the spot at the time of incident. iii. PW-3 to 6 are said to be witnesses of fact but they have not supported prosecution case and turned hostile. iv. PW-8, 9 and 10 are formal witnesses. v. DW-1 and 2 have not been considered properly by Trial Court. It has convicted accused-appellant on the basis of surmises. Trial Court did not appreciate evidence on record in right perspective and without application of mind convicted the accused-appellant wrongly. vi. Impugned judgment is based on no evidence and liable to be set aside. 15. Learned AGA opposed submissions advanced by learned Amicus Curiae and submitted that accused-appellant is named in FIR. Admittedly, accused and deceased were detained in the same Barack and quarrel started between them, which resulted in death of victim. It is further submitted by him that Trial Court has rightly convicted accused-appellant. 16. 15. Learned AGA opposed submissions advanced by learned Amicus Curiae and submitted that accused-appellant is named in FIR. Admittedly, accused and deceased were detained in the same Barack and quarrel started between them, which resulted in death of victim. It is further submitted by him that Trial Court has rightly convicted accused-appellant. 16. Although time, date, place, nature of injuries found on the person of deceased and caused death, as stated by prosecution, could not be disputed from the side of accused but according to learned counsel for accused-appellant, he is not responsible for causing death of victim-Raja Ram. Even otherwise, from the evidence of prosecution, time, date place and death of victim stood established. 17. In the present case, only question remains for consideration is “Whether accused-appellant-Sewak is responsible for causing death of victim-Raja Ram or not?" and "Whenter Trial Court rightly convicted him or not?” 18. Now, we proceed to consider evidence of prosecution. 19. PW-1 Suresh Chandra, Senior Superintendent of Central Jail, Varanasi deposed that in the mid-night of 14/15.09.2008, accused-appellant-Sewak assaulted Raja Ram with brick, due to which, he sustained injureis on his nose and head. Victim was admitted in Jail Hospital, where from, he was referred to Deen Dayal Upadhyay Hospital for better treatment. On the same date, victim was further referred to Shiv Prasad Gupt, Regional Hospital, Varanasi, where he underwent treatment. During treatment, victim-Raja Ram breathed last in the intervening night of 16/17.09.2008. He further deposed that on receiving information about death of victim, he submitted a written report Ex.Ka-1 through Kundan Singh, Deputy Jailer to Police Station concerned. He further deposed that deceased Raja Ram, a convict under Section 302 IPC was transferred from District Jail, Gonda. In cross examination, at page No. 23 of Paper-book, witness admitted that he had received telephonic information of incident, through Kundan Singh, Deputy Jailer at 1:45 am. When he received information, he visited spot and saw that there was injury on neck and forehead of victim and it was bleeding. Witness further deposed that after death of Raja Ram, during investigation, accused-appellant told him that Raja Ram used to abuse him continuously, therefore, he attacked him with brick. This statement of PW-1 appears to be a development because it has come into light about three years after incident and it finds no place in Ex.Ka-1. 20. Witness further deposed that after death of Raja Ram, during investigation, accused-appellant told him that Raja Ram used to abuse him continuously, therefore, he attacked him with brick. This statement of PW-1 appears to be a development because it has come into light about three years after incident and it finds no place in Ex.Ka-1. 20. PW-2, S.N. Dwivedi, deposed that in 2008, he was posted as Jailer in Central Jail, Varanasi. He was on leave on the day of incident. When he returned from leave, he came to know about incident. 21. PW-3, Ramayan Giri, deposed that on the fateful day, he was detained in Central Jail. He was sleeping on his bed No. 58 in the night of incident. At about 1:00 am, he woke up on hearing noise and saw that victim-Raja Ram was lying in injured position and many persons of Barack were present. He did not see accused-appellant-Sewak assaulting victim-Raja Ram. Witness was declared hostile on the request of prosecution and he has been cross-examined by State but nothing material could be brought so as to disbelieve his statement upon oath in examination-in-chief. 22. PW-4, Shyam Deo, deposed that he was sleeping on his bed No. 52 in the intervening night of 14/15.09.2008 and detained since 2006. In same Barack, accused-Sewak and victim-Raja Ram (both convict) were also present. At 1:00 am in night, he woke up on hearing noise and saw that there was a crowed in Barrack and victim-Raja Ram was injured. He did not see anybody attacking him. Witness was declared hostile on the request of prosecution and cross-examined by State but nothing material could be brought so as to disbelieve his statement upon oath in examination-in-chief. 23. PW-5, Putti Lal, deposed that he was in Central Jail since 2005. Accused-Sewak and victim-Raja Ram were detained in same Barrack. At about 1:00 pm, in intervening night of 14/15.09.2008, he was sleeping in Barrack. On hearing noise, he saw there were many persons in Barrack and victim-Raja Ram was lying in injured position. He did not see anybody attacking Raja Ram. He did not know how Raja Ram was injured. Witness was declared hostile on the request of prosecution and cross-examined by State but nothing material could be brought so as to disbelieve his statement upon oath in examination-in-chief. 24. He did not see anybody attacking Raja Ram. He did not know how Raja Ram was injured. Witness was declared hostile on the request of prosecution and cross-examined by State but nothing material could be brought so as to disbelieve his statement upon oath in examination-in-chief. 24. PW-6, Angad Dhobi, deposed that in the intervening night of 14/15.09.2008, he was deputed to supervise circle No.4. He was also a convict in Jail. At about 1:00 am, in the intervening night, he went toilet, when he heard noise. He came from toilet and saw that victim-Raja Ram was injured and mouth was bleeding. He did not see anybody assaulting him. Witness was declared hostile on the request of prosecution and cross-examined by State but nothing material could be brought so as to disbelieve his statement upon oath in examination-in-chief. 25. PW-7, Prakash Rai, deposed that he was detained as convict in Central Jail, Varanasi in September 2008 and deputed as Chaukidar as convict. He did not see anybody assaulting victim-Raja Ram who has been injured in incident. Witness was declared hostile on the request of prosecution and cross-examined by State but nothing material could be brought so as to disbelieve his statement upon oath in examination-in-chief. 26. PW-8, Indrasan Singh, Additional City Magistrate, is an officer who held inquest over dead body of deceased-Raja Ram. Witness prepared inquest report Ex.Ka-2 and relevant papers relating thereto. 27. PW-9, SI Chandra Kant Singh, Investigating Officer of case conducted investigation and proved charge-sheet. PW-10, Dr. Manoj Kumar Pathak, conducted autopsy of dead body of deceased-Raja Ram and prepared postmortem report, Ex.Ka-11. 28. DW-1, Loha Singh, and DW-2, Sahab Patel, both convict and detained in Central Jail, Varanasi, at the time of incident, established that victim-Raja Ram and accused-appellant-Sewak were good friends. They had good relations among them. They further deposed that, at about 1:00 am, in the intervening night, they woke up on hearing noise and saw that some bricks fell down from damaged roof, where Raja Ram slept and he sustained injuries on his nose, head and mouth. These witnesses withstood lengthy cross-examination but unblemished. 29. PW-1 and PW-2, although, officers of Jail, did not speak anything against accused-appellant in their deposition. They were not present on the spot, at the time of incident. PW-8 to 10 are formal witnesses. These witnesses withstood lengthy cross-examination but unblemished. 29. PW-1 and PW-2, although, officers of Jail, did not speak anything against accused-appellant in their deposition. They were not present on the spot, at the time of incident. PW-8 to 10 are formal witnesses. PW-3 to 7, who were said to be present on the spot, as eye witnesses but none of them supported prosecution case. They did not say single word in their deposition against accused-appellant to implicate him. DW-1 and 2 disclosed a separate story that due to dilapidated condition of Barrack, incident happened. There is nothing on record so as to disbelieve their statements. There is no iota of evidence against accused-appellant to connect him with present crime or holding him guilty. 30. Prosecution has brought this case before Court, as a case of direct evidence, but Trial Court, on the failure of prosecution case as direct evidence, turned it as a case of circumstantial evidence and considering the case of circumstantial evidence and ignoring all principles laid down by Hon'ble Courts convicted and sentenced accused-appellant on the basis of surmises flouting all judicial principles. 31. We have deeply considered entire evidence available on file to connect accused-appellant with present crime but find no iota of evidence to hold accused-appellant guilty. 32. We are surprised as to how without any incriminating circumstances and evidence, Trial Court has sentenced accused-appellant in a serious offence. Sentencing of accused-appellant in this manner erodes a public faith on judicial system. 33. Considering the entire facts and circumstances and evidence led by the prosecution, in entirety, we do not find any cogent and convincing evidence against accused-appellant to connect him with present crime and, in our considered opinion, accused-appellant is entitled to be acquitted. 34. Appeal is, accordingly, allowed. Impugned judgment and order dated 07.12.2011 passed, in Sessions Trial No. 27 of 2009 (State v. Sewak, Case Crime No. 320 of 2008), under Section 304 IPC, Police Station Shivpur, District Varanasi, is hereby set aside. Appellant is acquitted of charges levelled against him. He is in jail and shall be released forthwith, if not wanted in any other case. 35. Appellant is acquitted of charges levelled against him. He is in jail and shall be released forthwith, if not wanted in any other case. 35. Keeping in view provisions of Section 437-A Cr.P.C., appellant is directed to furnish a personal bond and two sureties before Trial Court to its satisfaction, which shall be effective for a period of six months, along with an undertaking that in event of filing of Special Leave Petition against instant judgment or for grant of leave, appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court. 36. Lower Court record along with a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action. 37. Before parting, we provide that Sri Radhey Shyam Yadav, Amicus Curiae for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 11,500/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.