Allahabad High Court
Kailash Chandra vs State Of U.P. on 15 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- CRIMINAL APPEAL No. - 2668 of 1984 Appellant :- Kailash Chandra Respondent :- State of U.P. Counsel for Appellant :- Pt. Mohan Chandra, Mukesh Joshi Counsel for Respondent :- A.G.A. Hon'ble Vikram D. Chauhan,J.
1. Heard Sri Mukesh Joshi, learned counsel for the Appellant; learned A.G.A. for the State and perused the record.
2. The present appeal is preferred against the judgment and order dated 12th September, 1984 passed by VIII Additional Sessions Judge, Etah in S.T. No.662 of 1983 (State Vs. Kailash Chandra), whereby the Appellant has been convicted and sentenced under Section 411 I.P.C. for three years rigorous imprisonment.
3. The prosecution case as per the first information report is to the effect that one Jagan Lal has lodged a first information report on 28th February, 1983 at 8.15 am with the allegation that Aunt (Chachi) of the informant namely Yasoda was living alone in her house and in the intervening night of 27th / 28th February, 1983 when she was sleeping alone in her house and did not come out for long time, then the wife of the informant, namely Uma knocked the door of the Yasoda. However, no response was given from inside the house and the house was found locked from inside. Thereafter, wife of the Informant-Uma informed about the aforesaid fact to the Informant. Informant and his brother Janki and Ram Ratan came and called Yasoda from outside. However, there was no response from inside the house. Thereafter, they went to the terrace of their house to look into the house of Yasoda and found that at the back of the house there was an entry in the wall and when they entered from the aforesaid, they found that the deceased was lying dead on the cot and her right hand and left leg was tied and the mouth was gagged with cloth and the jewellery (10 lacche of silver and earrings of gold) which the deceased wore daily were missing. On the aforesaid basis, a first information report was lodged being Case Crime No.67 of 1983 under Section 460 I.P.C. at Police Station Aliganj, District Etah.
4. The Panchayatnama of the deceased was held on 28th February, 1983 wherein Ganga Sahai, Mewa Ram, Ram Bhajan Lal, Jagat Pal and Zamadar were the panch witnesses and according to the opinion in Panchayatnama, the deceased has been murdered.
5. The body of the deceased was thereafter sealed and sent for postmortem. Investigating Officer prepared the site plan of the place of occurrence on 28th February, 1983 and the same was marked as Ex.Ka.4. Investigating Officer has further recovered Dhoti and rope from the place of occurrence on 28th February, 1983. A recovery memo in respect of the same was prepared being Ex.Ka.12. Investigating Officer further on 28th February, 1983 also recovered household goods from the place of occurrence and the same was marked as Ex.Ka.13.
6. During investigation, Appellant was arrested under Section 25 of the Arms Act and after arrest, Appellant has confessed that Military and Sant Ram has murdered the deceased and jewellery of deceased was taken by them and that he has hidden the jewellery of the deceased in the agricultural field and that he can recover the same. On the basis of the aforesaid statement of the Appellant, on 8th March, 1983 the Appellant got recovered 10 piece of silver Laccha (jewellery) having weight of 200 grams from the agricultural field near the tree on the pointing out of Appellant from a place where he has hidden the jewellery of the deceased and after digging the soil for one feet, jewellery was recovered and the same was sealed in a cloth. The aforesaid recovery was made in the presence of witnesses Roshan Lal and Ram Dulare. Investigating Officer has prepared the recovery memo dated 8th March, 1983, which is Ex.Ka.2. The jewellery so recovered was identified by Jagan Lal, Ram Ratan, Usha and Savitri Devi before the Executive Magistrate on 2nd May, 1983.
7. Investigating Officer after completion of the investigation has submitted chargesheet against Appellant in Case Crime No.67 of 1983 on 16th May, 1983 under Section 460/411 I.P.C. Appellant denied the charges and claimed to be tried. On 10th July, 1984 the trial court has framed the charges against Appellant under Sections 460 and 411 I.P.C.
8. The prosecution in support of its case has examined five witnesses, namely:-
(i) Jagan Lal (P.W.1) is the informant. He has stated that deceased Yasoda was his Aunt (Chachi) and she was living in a separate house in Aliganj. The deceased was not having toilet in her house and as such everyday in the morning the deceased used to come to the house of P.W.1 to attend nature's call. On the date of the incident, deceased for long time did not come to the house of the informant and as such wife of the informant, namely, Usha @ Uma went to see her and called her from outside the house of deceased. The deceased did not respond to the call of Usha then informant, Ram Ratan and Janki went into the house of the deceased and found that the deceased was tied up on the cot and her one hand and leg was tied and the mouth was gagged with cloth. The aforesaid persons also found that the earrings and the "Lacche" of deceased were missing. The P.W.1 thereafter has got the first information report scribed from Mewa Ram and the same is marked as Ex.Ka.1. The said first information report was given at the police station. The witness has also stated that they had gone to the court for identification of the jewellery recovered being Material Ex.Ka.10. The witness has further stated that he had seen his aunt wearing the jewellery recovered, prior to the occurrence.
(ii) Ram Ratan (P.W.2) has stated that on hearing the news he had reached the place of incident and found that deceased was lying dead and her one hand and leg was tied with the cot and the mouth was gagged with cloth and the earrings and lacche of the deceased was missing. Informant was present at the place of incident. He has further stated that Jagan Lal had lodged the first information report. He has stated that they also identified the jewellery recovered and he had seen the deceased wearing the aforesaid jewellery prior to the occurrence.
(iii) Smt. Usha Devi @ Uma (P.W.3) stated that she is wife of informant (P.W.1) and has stated that on the date of occurrence deceased had not come to her house for attending nature's call, therefore, she went to house of deceased and called her, however, there was no response. Thereafter, she came back and informed her husband. They have found that the wall of the house of the deceased was broken and her husband and his brothers went inside the house, deceased was lying dead and her earrings and lacche were missing. She has stated that she had identified the jewellery recovered before the Magistrate. She has also stated that the deceased has willed her property in favour of her husband and his brothers. She has stated that the Appellant is son of her Jeth and he had not received anything from the property of deceased.
(iv) Ram Dulare (P.W.4) has stated that he was in the market and accused-appellant along with 4-5 police personnels (in which one of them is Station House Officer and Roshan Lal) was also going along with Appellant. The police personnel asked him to come along with them for being witness to the recovery of the jewellery from the Appellant. The Appellant took all of them to agricultural field of Tambaku and in the agricultural field there were two trees and 10-12 paces from the eastern tree the jewellery (lacche) 1½ feet hidden in the soil, was dug up by Appellant and the same was recovered. The jewellery recovered was marked as Material Ex.Ka.1 to 10. Jewellery was sealed by the police and the recovery memo was signed by the Appellant.
(v) Ashok Kumar Rawat (P.W.5) is the Investigating Officer. He has stated that in February, 1983 he was posted at Aliganj as Second Officer. On 18th March, 1983, Case Crime No.67 of 1983 under Section 460 I.P.C. was registered being Ex.Ka.1 and the Chik FIR was prepared. Investigation was handed over to the aforesaid witness. He went to the place of occurrence and prepared the Panchayatnama as Ex.Ka.6 and the post mortem papers were prepared being Ex.Ka.7 to Ka.10 and the body was sent for post mortem. The place of occurrence was inspected and the site plan was prepared being Ex.Ka.11 and recovery of the Dhoti and rope from the place of occurrence being Ex.Ka.12 and, thereafter, house hold goods were recovered being Ex.Ka.13. He has further stated that during investigation on 8th March, 1983, Appellant was arrested for having possession of illegal weapon and Appellant after arrest has confessed that the Appellant along with Military and Sant Ram has murdered deceased and have taken away the lacche and earrings of deceased. Appellant has further informed that the lacche was hidden in agricultural field and the same can be recovered. Thereafter, recovery memo was prepared being Ex.Ka.12. Site plan was prepared being Ex.Ka.14 and same was identified by the witnesses being Ex.Ka.15 and the chargesheet was submitted being Ex.Ka.16.
9. The trial court has recorded a finding that the counsel for the Appellant has admitted the recovery memo under Section 294 Cr.P.C.
10. The Appellant under Section 313 Cr.P.C. has stated that false case has been lodged against the Appellant and no recovery was made from pointing out of the Appellant and he has been falsely implicated. He has further stated that informant and his brothers in order to usurp the property of the deceased has prepared forged will. When the deceased was giving property to the Appellant then the informant has falsely implicated the Appellant in the present case. He has further stated that the witness Ram Dulare and Roshan Lal have prior enmity with him.
11. It is to be noted that the trial court by impugned judgment has acquitted the Appellant under Section 460 I.P.C. and has convicted the Appellant under Section 411 I.P.C.
Section 411 I.P.C. is quoted hereunder:-
"411. Dishonestly receiving stolen property. - Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
12. It is to be noted that the Appellant was convicted under Section 411 I.P.C. as P.W.4 and P.W.5 in their testimony have stated that from the pointing out of the Appellant, jewellery of deceased was recovered from agricultural field of Appellant, which was hidden beneath the soil and same was dug out by Appellant.
13. It is submitted by learned counsel for Appellant that it was not possible to have dug up the soil for one feet by bare hands.
14. Learned A.G.A. for the respondent-State has stated that it has come in evidence that the soil was wet and further once the soil was dug up for hiding the jewellery and then the soil may be loose and could have been easily dug up by the Appellant with bare hands subsequently.
15. It is to be noted that on 8th March, 1983 at about 3:20 PM, the lacha (Silver Jewellery) of the deceased was recovered on the pointing out of Appellant. In this respect, Prosecution Witness No 5 - Ashok Kumar Rawat, S.O. Sakeet has testified that during investigation on 8th March, 1983, Appellant was taken into custody from Akhbarpur Kotewale Road along with illegal weapons and was arrested. Thereafter, Appellant has disclosed that he along with Military and Santram has killed the deceased and jewellery of the deceased have been hidden in his agriculture field. Appellant was taken to his agriculture field along with independent witness Roshan Lal and Ram Dulare. When they reached agricultural field of the Appellant where two trees were standing and in the north at about 10 to 12 steps, Appellant has recovered "Lacche" which belong to the deceased. The recovery memo was prepared by Prosecution Witness No. 5 being Exhibit-2. The Prosecution Witness No. 5 has proved the recovery memo dated 8th March, 1983. The map of place of recovery of jewellery of deceased from Appellant was prepared and marked as Exhibit Ka 14. The jewellery was deposited and identification report was prepared being Exhibit 15 and the jewellery in question was identified by Prosecution Witness Nos. 1, 2, 3 and 4.
16. The Prosecution Witness No. 5 in his testimony has stated that agricultural field was wet when the alleged recovery has been made. The aforesaid fact has been supported by Prosecution Witness No. 4 who is the witness of the recovery of jewellery from Appellant pointing out. It is also to be noted that the incident is of 27th / 28th February, 1983 and the recovery has been made on 8th March, 1983 and once the soil has been dug up it becomes loose and when the same spot is again dug up then it is always easier to dig jewellery with bare hands. The aforesaid stand of the prosecution that the jewellery was dug up by the Appellant by bare hands is a possibility and the same cannot be ruled out specifically when the recovery is said to have been made in the presence of independent witness.
17. It is further submitted by learned counsel for the Appellant that statement of the recovery witness does not corroborate with the site plan. He submits that as per the Prosecution Witness No. 4, agricultural field from where the alleged recovery has been made was only having "Tad ka ped" and "Tobacco" however, site plan clearly shows that there are "Jamun Trees" and "Dhaniya Crop" also. On the aforesaid basis, it is submitted by learned counsel for Appellant that the testimony of the recovery witness is not trustworthy.
18. A perusal of the site plan dated 8th March, 1983 would demonstrate that the agricultural field adjoining the place from where the alleged recovery is made was having "Jamun Tree" and "Dhaniya Crop" and agricultural field from where recovery is made was having Tobacco. It is further to be noted that statement of Prosecution Witness Nos. 4 and 5 was made on 2nd August, 1984 and the recovery is made in March 1983 as such the statement was recorded after more than one year of the alleged recovery and as such contradiction is natural and will not have any consequences on the prosecution case.
19. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incidence there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. When the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. In the depositions of witnesses there are always normal discrepancy, however honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment may not render the evidence of eye witnesses unbelievable.
20. It is also submitted by learned counsel for the Appellant that the cloth in which the recovered jewellery was kept did not have any soil stains. In this respect, it is to be seen that the P.W. 5 in his statement has stated that the soil inside the hole that was dug up was dry and as such if the stains of soil was not found on the cloth that by itself will not discredit the prosecution case. The trial court has recorded a finding that the dry soil on the cloth in which the jewellery was kept if did not find the soil the same may be because the dry soil may have been brushed aside. The trial court has further recorded a finding that the cloth in which the jewellery was kept, was stained. The aforesaid finding recorded by the trial court is possible view taken by the trial court. It is to be noted that the identification proceedings after the recovery were also held on 2nd May, 1983 and as such the aforesaid soil on the cloth may have been brushed aside on the handling of the aforesaid cloth. The view taken by the trial court is a possible view and as such cannot be interfered with.
21. It is further submitted that the recovered jewellery was sealed in a cloth and on the aforesaid the date of 12th March, 1984 was stated and as such the recovery itself is doubtful. It is to be noted that the alleged recovery is said to have been made on 8th March, 1983 and in this respect Prosecution Witness No. 5 has testified before the trial court.
22. The trial court has recorded a finding that on account of the handling of the cloth in question the cloth may have on account of spreading of the ink by regular handling is looking like 12 however is 8th March, 1983. In this respect, it is to be noted that the recovery memo was prepared on 8th March, 1983 and the recovery of the jewellery was submitted in the Malkhana and the aforesaid recovery is testified by Prosecution Witness Nos. 4 and 5 then the argument of the learned counsel for the Appellant is not sustainable specifically when nothing has been shown that the finding recorded by the trial court is perverse and against law.
23. It is also submitted that the informant and his family members in order to usurp the property of the deceased has falsely implicated the Appellant and in this respect it is submitted that in Ex.Ka.13 the goods which have been recovered, there is a passbook which is of the informant and his brothers and on the aforesaid basis, it can be said that they wanted to murder the deceased. P.W.-3 in his testimony has stated that the deceased had given her property to her husband and his brothers and if the aforesaid fact is correct, then the passbook of the informant and his brothers which was found at the house of the deceased will not discredit the prosecution case.
24. The Appellant in his statement under Section 313 Cr.P.C. has stated that the informant has prepared a forged will. The aforesaid statement is indicative of the fact that the Appellant does not deny the existence of the will. However, he has stated that the will is a forged will. When the deceased has given her property to the informant and his brothers then there was no occasion for the informant and his brothers to have murdered the deceased. The evidence on record in no manner leave doubt that the jewellery recovered is that of deceased as the same was identified by the witnesses. The Appellant has not produced any evidence to substantiate his claim that the will was forged as the same was his defence nor has produced any material or circumstance as to why he has been falsely implicated in the case.
25. On the other hand, the prosecution by evidence of P.W.-4 and P.W.-5 has proved that the recovery of the jewellery of the deceased at the behest of the Appellant and the same was recovered from 1 feet beneath the agricultural field, which is a place, knowledge of it can only be attributed to the Appellant.
26. It is to be noted that the Appellant has although stated in his statement under Section 313 Cr.P.C. that he had enmity with P.W.4. However, the same has not been proved by the Appellant by cogent evidence nor any material has been brought on record to substantiate that there was any enmity with P.W.4. The Appellant has also not brought on record any evidence or circumstance as to why the police would falsely implicate the Appellant and as such the testimony of P.W.4 cannot be brushed aside.
27. It is further submitted by the learned counsel for the Appellant that the gold rings were not recovered and as such the recovery is doubtful. In this respect, it is to be seen that the recovery of the alleged silver jewellery on 8th March, 1983 at the behest of the Appellant has been duly proved by the prosecution. The jewellery recovered has been identified in accordance with law. The non-recovery of the gold rings by itself would not make the prosecution case doubtful.
28. It is further submitted by learned counsel for the Appellant that the conviction of the Appellant is only on the ground of recovery memo which is said to have been admitted under Section 294 Cr.P.C. However, under section 294 Cr.P.C. only genuineness has been admitted nor the contents and the recovery made thereunder. It is to be noted that the prosecution has proved the recovery memo by testifying the Prosecution Witness Nos. 4 and 5. It is further to be noted that the recovery memo has been duly exhibited. The prosecution witness has also supported the recovery of the jewellery on the pointing out of the Appellant. The recovery memo has been duly proved by the prosecution and as such the claim of the Appellant that the contents have not been admitted is of no consequence.
29. The law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and sections 162 and 164 of the Code of Criminal Procedure, 1973. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. The confession or statement of accused can be made during investigation before police officer. The language of Section 161 of the Code of Criminal Procedure, 1973 which protects the accused as well as suspects and witnesses who are examined during the course of investigation in a criminal case. Section 25 of the Evidence Act provides that no confession made to a police officer shall be proved against a person accused of an offence. The terms of Section 25 of the Evidence Act are imperative in nature. Section 26 of the Evidence Act prohibits proof against any person of a confession made by him in the custody of a police officer unless it is made in the immediate presence of a Magistrate. Section 27 of the Evidence Act is a form of exception and partially lifts the ban imposed by Sections 24, 25 and 26 of the Act. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
30. In the present case, recovery of jewellery of deceased at behest of Appellant has been proved by prosecution beyond reasonable doubt. The jewellery of deceased recovered has been identified and proved to belong to the deceased. There is no explanation offered by the Appellant as to how the jewellery which has been recovered at his behest has come in possession of Appellant. The recovery of the jewellery of the deceased has been made from an agriculture field by digging out the agricultural field and jewellery being recovered from beneath the earth was within the exclusive knowledge of Appellant and as such when no explanation has been offered by Appellant, prosecution case gets strengthened.
31. The trial court on the aforesaid basis has come to the conclusion that the prosecution has been able to prove its case against the Appellant under Section 411 I.P.C. and thereafter, convicted the Appellant.
32. The Appellant has failed to dislodge the prosecution case and no circumstance has been stated which would entitle the finding of conviction and sentence recorded by the trial court as per-se perverse. This Court is in agreement with the conviction and sentence recorded by the trial court in the impugned judgment.
33. In view of the aforesaid, the present appeal lacks merit and is, accordingly, dismissed and as a consequence bail granted to the Appellant is cancelled.
34. Office is directed to return the record of the lower court forthwith along with a copy of this order for necessary compliance.
Order Date:- 15.11.2022 VMA/Bhaskar (Vikram D. Chauhan, J.)