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2022 DIGILAW 2010 (ALL)

State of U. P. v. Lakshmi Baniya

2022-12-20

RAHUL CHATURVEDI, VIVEK KUMAR BIRLA

body2022
JUDGMENT : 1. Heard Sri Ratan Singh, learned AGA appearing for the appellant-State of UP and Sri Prakash Chandra Srivastava, learned counsel for the accused respondent-Lakshmi Baniya and Sri Vinay Kumar Singh, learned counsel for the accused respondent-Chandrabhan Kurmi and perused the record. 2. Present government appeal has been preferred against the judgment and order dated 31.10.2003 passed by the Additional Sessions Judge, Court No. 3 in Session Trial No. 338 of 2002 (State vs. Lakshmi Baniya) and in Session Trial No. 420 of 2002 (State vs. Chandrabhan Kurmi) arising out of Case Crime No. 33/89, under Section 302 IPC, P.S. Khajni, District Gorakhpur whereby both the accused have been acquitted from the charges under Section 302 IPC. 3. Prosecution story, as per FIR, in brief is that the informant Bhajuram S/o Purnavashi Baniya, resident of village Bhiuri, Thana-Khajani, District Gorakhpur had purchased a piece of land on the paved road from Bansgaon to Khajani alongwith his brother Baijnath from Kanhaiya Tripathi, who is residing in village Unwal. On the said piece of land the informant constructed a house. Laxhmi and others, relatives of said Kanhaiya Tripathi were also constructed a house over some part of the said land and residing in the said house. Regarding some part of land a civil suit was also pending before the court below. On 05.05.1989 at around 11:00 p.m. when his brother Baijnath, niece Kotwal and his daughter-in-law Smt. Fekna Devi laying in front of his house talking and he slept far to the West and was in awake condition then suddenly he heard his brother's noise Bachao Bachao. After lighting a torch, he ran towards his brother. One Hari Koiri also reached to the spot where the lantern was burning. They saw that Baijnath was caught hold by Lakhmi Baniya and two others and Chandrabhan who armed with knife stabbed his brother Baijnath and ran towards West. They witnessed and recognized the accused in the light of the lantern. The informant and others admitted to his brother-Baijnath in the Sadar Hospital due to excessive bleeding where he is being treated. He left his brother in the care of family members and guests and came to inform about the incident. They witnessed and recognized the accused in the light of the lantern. The informant and others admitted to his brother-Baijnath in the Sadar Hospital due to excessive bleeding where he is being treated. He left his brother in the care of family members and guests and came to inform about the incident. On the said written Tehrir, a first information was registered in the Police Station Khajani on 06.05.1989 at 9:15 a.m. against the accused Lakhmi Baniya, Chandrabhan Kurmi and two others and a case crime no. 33 of 1989, under Section 307 IPC was registered. 4. The Investigating Officer was nominated and he conducted investigation. Statements of prosecution witnesses were also recorded and thereafter a charge-sheet was submitted against the accused. The case was committed to the Court of Sessions and charges were framed against the accused who pleaded his innocence and not guilty. 5. In support of prosecution case, PW-1 Kotwal, PW-2 Bhujram, PW-3 Fekna Sakshi, PW-4 Hari, PW-5 Shivram, were produced and examined before the Court below. 6. The judgment of acquittal was passed by the Court below on the ground that except PW-1 Kotwal (son of the deceased), all other witnesses of fact have turned hostile. It was found that PW-2 Bhajuram (real brother of the deceased), PW-3 Fekna Sakshi (wife of the deceased), PW-4 Hari who is stated to be independent witness of fact, PW-5 Shiv Ram have turned hostile and nothing came out in their cross-examination. It was further found that the prosecution has taken the stand that the statement recorded under Section 161 Cr.P.C. of the deceased who was in an injured condition is liable to be treated as dying declaration as the death had taken place after two days from the date of incident, however, the court below found that neither the doctor nor the Investigating Officer (IO) was produced to prove that the statement of the deceased so recorded by the IO cannot be treated as a dying declaration in absence of the production of the vital prosecution witness, namely, the Doctor and the IO who had allegedly recorded the statement of the deceased when he was in an injured condition. It was further found that PW-1 Kotwal was a child of about 13 years and his statement was recorded after a gap of about 14 years and the narration of the incident was not worth belief in the light of the statement made by the other witnesses of fact who turned hostile. It was also found that PW-2 Bhujram who is real brother of the deceased and was stated to have been sleeping about five paces away from the place of incident had also turned hostile and had stated in categorical terms that he had not seen the incident. PW-3 Fekna Sakshi (wife of the deceased) had stated that she was sleeping somewhere else and therefore, had also not supported the stand taken by the PW-1. Under such circumstances, the Court below found that the prosecution could not prove his case beyond doubt and the accused person was given benefit of doubt and judgment of acquittal was passed. 7. Challenging the impugned judgment, Mr. Ratan Singh, learned AGA submits that there was cogent evidence to convict the accused persons herein. He next submits that it is a case of direct evidence where the incident was seen by at least four witnesses and one witness i.e. PW-1 Kotwal (son of the deceased) had categorically supported the prosecution version and nothing came out in his cross-examination against prosecution. It is submitted that merely because some other witnesses have turned hostile, this by itself cannot grant benefit to the defence and therefore, statements of the witnesses are liable to be considered. It is further submitted that the last statement of the deceased when it was recorded by the IO in the shape of statement under Section 161 Cr.P.C. is liable to be treated as a dying declaration and this itself is sufficient to reverse the judgment. Submission, therefore, is that the judgment and order of acquittal passed by the trial Court requires serious consideration and reversal and the accused persons herein are liable to be convicted. 8. Submission, therefore, is that the judgment and order of acquittal passed by the trial Court requires serious consideration and reversal and the accused persons herein are liable to be convicted. 8. Per contra, Sri Prakash Chandra Srivastava and Sri Vinay Kumar Singh, learned counsel for the accused respondents, have submitted that the statement of PW-1 Kotwal (son of the deceased) who is 13 years at the time of incident and whose statement was recorded after a gap of 14 years is not worth belief particularly in view of the contradictory stand taken by the other witnesses of fact who are also directly related to the deceased. They submitted that PW-2, PW-3, PW-4 and PW-5 have turned hostile and nothing came out in their cross-examination. They further submitted that the statement of the deceased recorded by the IO under Section 161 Cr.P.C. cannot be treated as dying declaration as there was a long gap between the recording of the statement and the time of death that had taken place and therefore, no interference is warranted in the judgment and order impugned herein. 9. We have considered the submissions and have perused the record. 10. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal. 11. In the case of Bannareddy and Others vs. State of Karnataka and Others, (2018) 5 SCC 790 , in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that “the High Court should not have re-appreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities.” 12. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213 , the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against an order of acquittal passed by a Trial Court. 13. In a recent judgment of this Court in Virendra Singh vs. State of U.P. and Others, 2022 (3) ADJ 354 (DB), the law on the issue involved has been considered. 14. 13. In a recent judgment of this Court in Virendra Singh vs. State of U.P. and Others, 2022 (3) ADJ 354 (DB), the law on the issue involved has been considered. 14. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and Another, (2022) 3 SCC 471 . 15. On perusal of record, we find that out of four witnesses of fact, three witnesses are closely related to the deceased; one being son of the deceased, other being the wife and third being the real brother, out of which two have not supported the prosecution case although they were claimed to be eyewitnesses and even the independent eyewitness has also not supported the prosecution case and except PW-1 Kotwal (son of the deceased), all turned hostile and contradictory stand is more than apparent on the face of the present case. Presence of the PW-2 and PW-3 is also doubtful, inasmuch as they have also stated in categorical terms that they were not present on the spot, which clearly reflects that they have not supported the stand taken by the PW-1 Kotwal. 16. Insofar as the question of treating the statement of the deceased recorded under Section 161 Cr.P.C. by the IO being treated as dying declaration is concerned, it would be relevant to refer to the judgments of Hon'ble Apex Court in Padmaben Shamalbhai Patel vs. State of Gujarat, (1991) 1 SCC 744 , K. Ramachandra Reddy and Another vs. The Public Prosecutor, AIR 1976 SC 1994 , Laxman vs. State of Maharashtra, (2002) 6 SCC 710 , Jagbir Singh vs. State (NCT of Delhi), (2019) 8 SCC 779 and Jayamma and Another vs. State of Karnataka, (2021) 6 SCC 213 . 17. Insofar as the facts of the present case are concerned, it is suffice to refer to the judgment of Jayamma (supra) wherein evidentiary value of and sustenance of conviction solely based on dying declaration was extensively considered and principles were summarised. It was held that presence of Judicial or Executive Magistrate to record the dying declaration is not compulsory and it is only needed as a rule of prudence so as to muster additional strength to the prosecution case. In the aforesaid case, the trial Court found that dying declaration (Ext. P-5) was not worth belief as there was no corroborative evidence to the statement (Ext. In the aforesaid case, the trial Court found that dying declaration (Ext. P-5) was not worth belief as there was no corroborative evidence to the statement (Ext. P-5) and no other evidence was led by the prosecution to connect the accused persons with the crime except the statement (Ext. P-5) which was held to be unsafe to convict the accused persons solely on the basis of the dying declaration. The High Court reversed the judgment of acquittal of the accused persons relying upon the dying declaration in exercise of appellate powers. While discussing the powers of the appellate and after summerising the principles in this regard, the Hon'ble Apex Court held that reliance placed on dying declaration was not sustainable and affirmed and endorsed the view taken by the trial court acquitting the accused persons. Paragraphs 26 and 27 of Jayamma (supra) are quoted as under: “26. The Additional Sessions Judge, Chitradurga in his judgment dated 30-11-2001 formulated Point No. 1 as to whether the prosecution was able to prove beyond all reasonable doubt that the accused persons with an intention to kill Jayamma went to her hourse and picked up a quarrel in connection with a previous dispute and then doused her with kerosene and set her ablaze. The Additional Sessions Judge extensively examined the entire evidence and after reaching to the conclusion that all the witnesses of the motive or the occurrence have resiled and declared hostile, he was left with the residuary question to decide as to whether the death was suicidal or homicidal. He, thereafter, considered the dying declaration (Ext. P-5) threadbare and critically analysed the statements of the police officer (PW-11) and the doctor (PW-16). The factors like: (i) interpolation in the dying declaration Ext. P-5, (ii) contradiction in the statements of PW-11 and PW-16 regarding injuries on the palm, (iii) the victim with 80% injuries was apparently not in a situation to talk or give statement, (iv) PW-2, son of the deceased himself has stated that his mother committed suicide as she could not bear that her another son had been sent to jail, (v) there being no corroborative evidence to the statement Ext. P-5 and (vi) there is no other evidence led by the prosecution to connect the appellants with the crime except the statement Ext. P-5 and (vi) there is no other evidence led by the prosecution to connect the appellants with the crime except the statement Ext. P-5, he held it unsafe to convict the appellants on the solitary basis of the dying declaration (Ext. P-5). 27. We fully endorse the view taken by the learned trial court. The reasons which we have assigned in Para 22 of this order are sufficient to cast clouds on the genuineness of the prosecution case. We find it difficult to uphold the conviction only on the basis of the dying declaration Ext. P-5.” (Emphasis supplied) 18. In the present case, it is apparent on the record that neither the doctor was produced who has stated that the deceased who was in fit state of mind to make the statement; and even the IO was also not produced to prove such statement. We further find that there was a gap of about two days from the date of recording of such statement and the time of death of the deceased. In the present case also, we find that there was no corroborative evidence to the statement recorded under Section 161 Cr.P.C. which is being claimed as a dying declaration for the reasons stated above and there was absolutely no other evidence led by the prosecution to connect the accused persons with the crime except the statement. As such, under such circumstances, unless such statement is proved beyond doubt, the same cannot be treated as a dying declaration for making the sole basis for convicting the accused respondents or in any case, even if treated as dying declaration, it would, under no circumstances, be safe for convicting the accused-respondents solely on its basis, that too by reversing the judgment of acquittal, when as per settled law double presumption of innocence operates in favour of the accused respondents. 19. In view of the aforesaid, as reflected from perusal of the evidence, we find that the court below has taken a plausible and possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court by taking a different view as per the law discussed above. 20. From the discussion made hereinabove, the government appeal stands dismissed.