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2023 DIGILAW 1413 (ALL)

Ankit v. State of U. P.

2023-05-24

K.J.THAKER, SHIV SHANKER PRASAD

body2023
JUDGMENT : K.J. Thaker, J. 1. Heard Sri Ajay Kumar Mishra, learned counsel for the appellants and Sri Vikas Goswami, learned A.G.A. for the state. 2. Both these appeals challenge the judgment and order dated 17.11.2016 passed by Additional Sessions Judge/Fast Track Court No.1, Meerut, in Sessions Trial No.836 of 2015 (State vs. Ankit and another) arising out of Case Crime No.145 of 2015, Police Station – Parikshitgarh, District – Meerut. 3. Both the accused, who are father and son, have been convicted under Section 302 read with 34 of I.P. Code pursuant to registration of Case Crime No.145 of 2015. The learned trial Judge committed the case to the court of Sessions, being numbered as 836 of 2015. Both the accused Ankit and Harnam Singh were held guilty of commission of offence under Section 302 IPC read with section 34 and have been sentenced to the life imprisonment and Rs. 15,000/-fine and in default 6 months of imprisonment. 4. The genesis of the case started with an incident which happened on 23.4.2015 wherein the sister of the first informant, who was married on 19.2.2012 to Ankit Kumar S/o Harnam Singh and as her husband and father-in-law were harassing causing mental torture to the deceased, she committed suicide at about 3:30 p.m. on 23.4.2015. This was the first information given to the police authority. 5. It is mentioned in the F.I.R. that one Dhanraj S/o Amichand, who also resides in the vicinity of the accused, had conveyed that on the date of incident, the deceased had quarrelled with the appellant herein. On this information, a case under Section 306 of I.P. Code was registered. The investigation was put into motion by one Chandvir, who was the police officer. The investigating authority went to the site, made the site plan and recorded the statement under Section 161 Cr.P.C. but at the end of the investigation lodged an F.I.R. under Section 302 of I.P. Code. 6. The accused were summoned by the Magistrate and after completing the formality for committing the case to the court of Session, the matter was committed to the court of Session. 7. The accused Ankit was in custody on being summoned by the court of Session, were presented before learned Sessions Court. Both the accused pleaded not guilty and they wanted to be tried. 8. 7. The accused Ankit was in custody on being summoned by the court of Session, were presented before learned Sessions Court. Both the accused pleaded not guilty and they wanted to be tried. 8. The police after recording the statements of several witnesses filed charge-sheet against both the accused persons. Being summoned the accused were committed to the court of Sessions as the offences for which the accused were charged were exclusively triable by the court of Sessions. It is not the case of prosecution that death is a murder. 9. The charges were framed for commission of the offence under Section 302 I.P.C. read with Section 34 against both the accused persons, which was denied by them. They pleaded not guilty and claimed to be tried. 10. The trial started and the prosecution examined a total of 10 witnesses, who are as follows: 1. Pramod Kumar P.W.1 2. Parvita P.W.2 3. Om P.W.3 4. Dhan Raj Singh P.W.4 5. Shyam Veer Singh P.W.5 6. Rakesh Kumar Tyagi P.W.6 7. Naresh Kumar P.W.7 8. Dr. Pankaj Sharma P.W.8 9. Netra Pal Singh P.W.9 10 Girish Verma P.W.10 11. In support of the oral evidence following documents were filed: 1. Written Report and Recovery Memo of Dupatta. Ex.Ka.1 2. Charge-sheet Ex.Ka.2 3. Panchayatnama Ex.Ka.3 4. P.M. Report Ex.Ka.10 5. F.I.R. Ex.Ka.13 12. The prosecution examined several witnesses in support of the prosecution case so as to bring home the charge with which both the accused were charged. The evidence of PW1-Pramod Kumar in his oral testimony accepted the fact that his sister – deceased was married on 19.2.2012 with the accused Ankit and his elder sister was married with Mohit (elder brother) and Harnam and Mohit is son of Harnam but as far as the question of quarrelling and causing torture to his sister are concerned, he did not support the prosecution. Thereafter, in his oral testimony, he has deposed that his elder sister Parmita has stated that Arvita had committed suicide by hanging herself. He feigned ignorance whether in-laws of the sister were harassing her and that was the cause of her committing suicide. He has accepted that the F.I.R. was lodged by him. However, even in the cross-examination, he has not deposed anything except that his sister committed suicide. He feigned ignorance whether in-laws of the sister were harassing her and that was the cause of her committing suicide. He has accepted that the F.I.R. was lodged by him. However, even in the cross-examination, he has not deposed anything except that his sister committed suicide. Similar version is given by elder sister Parmita, who again opined that Harnam was her father-in-law and Ankit was her brother-in-law. Arvita – deceased, according to this witness, was school teacher. She thereafter has not supported the prosecution witness. She has denied the circumstances about quarrel and the factum that deceased was beaten by her father-in-law. Even in the cross-examination by the learned Counsel for State, she has denied the fact that Harnam and Ankit had done her to death. Onkar – PW3 has also deposed in similar line and was declared hostile. Dheeraj Singh – PW4 has not supported the prosecution case and has also been declared hostile. The Police Officer-PW5-Shyam Veer Singh has accepted that it was he who had filed the charge-sheet. 13. The conviction is solely based on the evidence of Dr. Pankaj Sharma – PW8, who had performed the postmortem of the dead-body has opined:- ^^bl lk{kh us viuh ftjg esa ;g Hkh dFku fd;k gS fd tc dksbZ O;fDRk xys esa diMk Mkydj vkRegR;k djrk gS rks ml n'kk esa Hkh ml O;fDr dks lkWl ?kqVrk gS e`frdk ds diMs+ lgh lyker Fks QVs ugh Fkk bl ckjs esa pksV vius vki vk;h gS ;k fdlh ds }kjk pksV dkfjr dh x;h gS dksbZ jk; ugha nh tk ldrh gSA^^ 14. The moot question now arises can the Court rely on the statement made under Section 161 Cr.P.C. of witnesses even if that is done, the F.I.R. nor any statement under Section 161 CPC state that the death was caused by the accused by strangulation: ^^fpfdRlh; lk{; 'ko foPNsnu fjiksVZ izn'kZ d&10 es fpfdRld }kjk e`frdk vjfork ds 'kjh esa vk;h ,aVh eksVsZe batjh esa] "Ligature mark 40 c.m. long & 2 c.m. PkkSM+kbZ all round neck 3 c.m. below Rt. ear, 6 c.m. below Lt. ear, 6 c.m. below Lt. ear 1 c.m. below hair line back, 6 c.m. below chin & 7 c.m. above sternal notch mark situated above the thyroid cartilage between Larynx & chin & directed obliquely upwards base of the mark is groove, raddish margin becomes dry, hard & parchment live skin.” 'ko foPNsnu vk[;k esa e`R;q dk dkj.k death due to asphyxia as a result of strangulation (anti mortem) n'kkZ;k x;k gSA^^ 15. It is submitted by the Counsel for the appellant that the learned Judge has come to a wrong conclusion that death was by strangulation even if that was so there are several missing links in the chain leading to the said conclusion. The medical evidence also does not state about the same rather the learned Judge has based his finding on surmises that it was strangulation by causing death and not suicide. Learned Judge has relied on Subrahmanyam Vs. State of Tamilnadu and others, 2010(1) UPCRR 21, to come to this conclusion but the said conclusion is bad on facts. 16. It is further submitted by learned Counsel for appellant that the judgment relied by the learned Judge could not have been applied to the facts of this case where the medical evidence shows that the doctor performing postmortem did not opine that it was not suicide but murder. The finding that it was not a case of suicide or murder, the learned Judge opined as follows:- “It is true that in a case of circumstantial evidence motive does have extreme significance but to say that in the absence of motive, the conviction based on circumstantial evidence cannot, in principle, be made is not correct. Motive provides foundational material – Absence of motive – Not of much consequence when chain of proved circumstances is complete. [G. Parshwanath v. State of Karnataka; AIR 2010 SC 2914 , Jagdish vs. State of M.P., 2009 (67) ACC 295 (SC), Ujjagar Singh v. State of Punjab, AIR 2008 SC (SUPP) 190]” This finding according to learned Counsel for appellants is perverse finding and the circumstances narrated to hold chain is complete are not proved. 17. The learned Counsel for the appellant has relied on the following decisions:- (i) Tomaso Bruno and another Vs. State of U.P., 2015 (1) JT 389 ; (ii) Riyazuddin @ Raju and another Vs. 17. The learned Counsel for the appellant has relied on the following decisions:- (i) Tomaso Bruno and another Vs. State of U.P., 2015 (1) JT 389 ; (ii) Riyazuddin @ Raju and another Vs. State of U.P., Criminal Appeal No.911 of 2012, decided on 2.8.2022; (iii) Anil Vs. State of U.P., Criminal Appeal No.703 of 2017, decided on 8.12.2022; (iv) Santosh Vs. State of U.P., Criminal Appeal No.5657 of 2011, decided on 22.2.2021; 18. It is submitted that the chain of circumstantial evidence as held to be completed by the learned Judge is not complete. The judgment cannot stand the scrutiny of this Court in view of the judgment in Riyazuddin @ Raju and another Vs. State of U.P., Criminal Appeal No.911 of 2012, decided on 2.8.2022 and Anil Vs. State of U.P., Criminal Appeal No.703 of 2017, decided on 8.12.2022, can be made applicable and the onus to prove that the accused were guilty has to be proved by prosecution which has not been discharged by prosecution. 19. Learned A.G.A. for the state has vehemently submitted that facts of this case will not permit the Court to take a different view in this matter and has submitted that none of the judgments relied by the accused-appellant will apply to the facts of this case. 20. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind that it was homicidal death. 21. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of I.P.C. of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code or any other view is possible. The reason for considering the case from this angle is as in F.I.R. it is stated that the deceased had a quarrel with the accused and then news of her death came. Though F.I.R. under Section 154 Cr.P. Code is not proved, we consider the matter from that angle from the lens of the learned trial Judge, who has held the chain to be complete. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under: “299. Though F.I.R. under Section 154 Cr.P. Code is not proved, we consider the matter from that angle from the lens of the learned trial Judge, who has held the chain to be complete. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under: “299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." 22. The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300 of I.P.Code. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done. INTENTION (a) with the intention of causing death; or (1) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; KNOWLEDGE KNOWLEDGE (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 23. (4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 23. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that the offence would not be one punishable under Section 304 part-I of the IPC. 24. If the case does not fall under Section 304 (I) IPC whether conviction of both accused with aid of section 302 IPC is made out or not requires to be sifted from judgment of trial court and evidence before both the courts. The accused cannot be held guilty for offence under Section 302 IPC, the reasons that father-in-law Harnam Singh was not at the place of offence. The accused appellant – Ankit does a private job and had gone for job which is a factor mentioned in the statement recorded under Section 313 Cr.P.C., disbelieved by trial Judge. Only on the basis of ligature mark can it be said that the accused, who have caused her death? The learned Judge has come to the conclusion that death was by strangulation. All the witnesses have turned hostile. Just because the incident occurred in the house, can it be said that circumstantial chain is complete. It is nobody’s case that the appellant – accused were in the house. Just because no witness has been examined, cant it be held that Ankit was not at Meerut rather no witness has opined that Ankit was at home. This is a missing link in the chain. The circumstantial chain is not complete and it cannot be said that both the accused were having a common intention to do away with the deceased. Just because the incident occurred in the home but presence of accused has not been proved and, therefore, invoking section 106 of Evidence Act, 1872 and applying the judgment of the Apex Court in Subrahmanyam Vs. Just because the incident occurred in the home but presence of accused has not been proved and, therefore, invoking section 106 of Evidence Act, 1872 and applying the judgment of the Apex Court in Subrahmanyam Vs. State of Tamilnadu and others, 2010 (1) UPCRR 21, it cannot be held to be proved that the accused were authors of death of deceased. 25. From the upshot of the aforesaid discussions, it appears that the death was not caused by the accused. The death was not premeditated, accused had no intention to cause death of deceased, the injuries were though sufficient in the ordinary course of nature to have caused death but it was suicidal death, accused is not proved to have committed the murder of deceased. 26. The Apex Court in Sabitri Samantaray vs. State of Odisha, AIR 2022 SC 2591 has also observed as under: “18. Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an individual is on that individual. Although the Section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, it merely prescribes that when an individual has done an act, with an intention other than that which the circumstances indicate, the onus of proving that specific intention falls onto the individual and not on the prosecution. If the accused had a different intention than the facts are specially within his knowledge which he must prove. 19. Thus, although Section 106 is in no way aimed at relieving the prosecution from its burden to establish the guilt of an accused, it applies to cases where chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused. Moreover, in a case based on circumstantial evidence, whenever an incriminating question is posed to the accused and he or she either evades response, or o ers a response which is not true, then such a response in itself becomes an additional link in the chain of events. [See Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681 ]” 27. It is more than settled principle of law that if two views are possible, the benefit shall always go to the accused. [See Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681 ]” 27. It is more than settled principle of law that if two views are possible, the benefit shall always go to the accused. It will be apposite to refer to the following observations of Hon'ble the Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 :- “163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh (1973) 2 SCC 808 , this Court made the following observations : [SCC para 25, p. 820 : SCC (Cri) p. 1060] Another golden thread which runs 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, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.” The accused Ankit is in jail. Since more than 9 years, the case under Section 306 IPC is also not proved. 28. In Mohd. Giasuddin Vs. State of AP, [ AIR 1977 SC 1926 ], explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court: "Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries." 29. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream. 30. Having considered the submission of medical evidence orally as well as the post-mortem report has been wrongly interpreted by the court below in coming to the conclusion that it was the accused Ankit and his father, who had done the deceased to death. 31. Accordingly, both the appeals are allowed. Both the accused are acquitted of all the charges. The accused Ankit be set free forthwith by giving benefit of doubt if not wanted in any other case. Harnam Singh being enlarged on bail, need not to surrender. Fine if paid, be refunded to appellants. Record and proceedings be sent back to the Court below forthwith. 32. The Court had requested the High Court Legal Service Committee/had requested Shri Ajay kumar Mishra to act as Amicus Curiae in the matter of Harnam Singh which he had accepted. This Court is thankful for that. 33. A copy of this order be sent to the jail authorities for following this order and doing the needful. 34. We are thankful to Sri Ajay Kumar Mishra, learned counsel for the appellants in both the appeals and learned A.G.A., for ably assisting the Court.