Allahabad High Court
Ravi Karan And Others vs State Of U.P. on 29 November, 2019
Bench: Govind Mathur, Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved. Chief Justice's Court Case :- CRIMINAL APPEAL No. - 510 of 1985 Appellant :- Ravi Karan And Others Respondent :- State Of U.P. Counsel for Appellant :- G.P.Dixit,Kundan Singh,Pratap Kanchan Singh Counsel for Respondent :- A.G.A. Hon'ble Govind Mathur,Chief Justice Hon'ble Vivek Varma,J.
1. By the judgement impugned dated 05.02.1985 learned Sessions Judge, Banda recorded conviction of accused appellant Ravi Karan and Babu Lal for the offence punishable under section 302/34 Indian Penal Code and awarded sentence to under go life imprisonment.
2.The prosecution case, in brief, states that Shri Kashi Prasad (P.W-1) submitted a written report at P.S. Badausa on 25.7.1984 that he had gone to another village Musiba to meet his relative where he got an information in the morning of 25.7.1984 (from Ram Bahori of his village), that his son Ram Asrey @ Beer had been murdered. On this information he set out for his village. On reaching his house he saw that his son's dead body was lying on a cot. The deceased's neck was cut and almost severed from the trunk of his body. He asked the deceased's wife Gayatri about the incident but she did not tell any thing. It was asserted that his daughter-in-law Gayatri was having illicit relations with the accused appellants. His deceased son knew about this illicit relationship and had scolded the appellants forbidding them not to come to his house. It was for this reason that the appellants bore enmity with his son and a day earlier, while he (the informant) was away from the village, the accused appellants entered his house and killed his son by axe (kulhadi).
3. The First Information Report (Ex- 2) was registered on 25.07.84 at 10.30 a.m. which was registered as case crime no. 110/1984 under section 302 IPC. During the course of investigation the police recovered the axe and blood stained shirts. The police submitted a charge sheet (Ex. kha- 17) on 10.08.84. Although the charge-sheet was submitted against the appellants only under section 302 IPC but the trial court framed charges against them under section 302/34 IPC and tried them for the said charge.
4. At the trial the prosecution produced as many as seven witnesses to prove the charge against the appellants. Out of the seven witnesses PW-1 Kashi Prasad is the deceased's father and informant of the case. PW-2 is Gayatri Devi, the wife of the deceased. Chhotey Lal PW-3 and Binda Prasad PW-4 are the witnesses of multiple facts, namely, inquest, arrest of the appellants and also recovery of the said two incriminating articles (i.e. shirts of the appellants and axe). PW-5 is Head Constable and has proved the chik report and PW-6 is the investigating officer of the case. The PW-7 is Dr. Vikash Chandra, the doctor who had conducted autopsy on the body of the deceased.
5. After completion of prosecution evidence, opportunity was given to the accused persons to explain adverse and incriminating circumstances available in the prosecution evidence against them. Both the accused persons termed the entire prosecution evidence as false and stated that they have been falsely implicated on account of their previous enmity with the father-in-law of the deceased.
6. The trial court convicted the appellants on the sole testimony of PW-2 Gayatri Devi, the wife of the deceased. So far as the evidence of recovery of the incriminating articles at the pointing out of the appellants is concerned the trial court disbelieved the same.
7. In appeal, the argument advanced by the learned counsel for the appellants is that the trial court committed manifest illegality in convicting the appellants on the sole testimony of PW-2, Smt. Gayatri Devi, that is not a reliable. Her testimony, examined on the anvil of probability, cannot with-stand the test of reliability. To support his submissions, the learned counsel drew our attention to the deposition of PW-2 before the trial court, particularly referring to that part of her deposition where she had given details of the incident as an eye witness. She deposed that the two appellants, who are her cousins, had come to her house in the evening and had stayed there. In the night she was sleeping in the Barotha, while her husband was sleeping in the Chaupal. The two appellants were sleeping in the Angan which lay adjacent to the Chaupal where her husband was sleeping. At about mid-night, while she was asleep, she heard shrieks of her husband whereupon she rushed towards him. On reaching there she saw that her husband's neck was cut and appellant Ravi Karan was carrying an axe and appellant Babu Lal was holding her husband tightly. She further stated that the appellants did nothing before her. This part of her statement is extracted below:-
eSa vius vkneh ds ikl xbZ rks eSuas ns[kk fd esjs vkneh dh xnZu dVh gS johdju dqYgkM+k fy;s Fkk rFkk ckcwyky esjs vkneh dks nck;s FkkA esjs lkeus eqfYteku us dqN ugha fd;kA
8. The learned Counsel, on the basis of the aforesaid deposition of PW-2, submitted that the said facts are not mentioned in the F.I.R. The FIR states that when the first informant had asked PW-2 about the incident she did not tell him anything. The informant in his deposition in the court had also supported the F.I.R. version. Had PW-2 informed her father-in-law, about the incident there was no reason why the same would not have been mentioned in F.I.R. Such an anomalous conduct of the PW-2 is highly improbable and discredits her reliability.
9. On the other hand, Sri Syed Ali Murtuza, learned AGA refuting the said submissions, submitted that the anomalous conduct of PW-2 stood well explained by her in her deposition. The learned counsel referred to that part of the examination-in-chief of PW-2 where the explanation for not disclosing those facts to her father-in-law was stated. In her said deposition, she stated that she did not tell her father in law about the incident earlier as she was scared of the appellants who had threatened her and her children with their lives, if she were to tell about the same, to any one. He further submitted that the trail court rightly recorded conviction of the accused persons on the basis of evidence available on record.
10. Heard learned counsels and examined the entire record.
11. We have appreciated the rival submissions of either sides and made a close scrutiny of the evidence of PW-2. On such scrutiny we find that the explanation given by this witness in the examination-in-chief was changed in the cross-examination. Even in the cross-examination she has given different versions. At one place she stated that she was not in her senses and at another place she stated that she was unconscious, when her father-in-law asked her about the incident. There are thus glaring inconsistencies in the two versions of PW-2 in explaining such an abnormal conduct. It seems highly improbable that a woman who has witnessed the murder of her husband, and culprits and are known to her would not name them at the earliest opportunity, particularly when her father-in-law had asked her about it. In fact, the prosecution story involves material alteration and improvement from the stage of FIR being lodged to the stage of trial. Thus in our considered opinion the explanations given by PW-2 for not disclosing to her father-in-law that she had seen the incident are not believable.
12. Thus, the evidence of P.W.-2 is not of such a sterling quality so as to base conviction solely on her testimony. Her testimony is not free from blemish or suspicion as such the same cannot be relied upon. Evidence of solitary eyewitness must impress the court as wholly truthful and convincing. The Hon'ble Supreme Court in Bhimapa Chandappa Hosamani and others Vs State of Karnataka, (2007) 1 SCC (Cri) 456 has reiterated the law that it is not the quantity but quality of evidence is material. Therefore, conviction can be maintained on the testimony of a single witness if he is a wholly reliable witness. The relevant excerpt of the Apex Court from the judgement of Bhimapa Chandappa Hosamani and others (Supra) as under :-
"We have undertaken a very close and critical scrutiny of the evidence of PW-1 and the other evidence on record only with a view to assess whether the evidence of PW-1 is of such quality that a conviction for the offence of murder can be safely rested on her sole testimony. This Court has repeatedly observed that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary eye witness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness".
13. The said proposition of law was also followed by the Apex Court in Lallu Manji and others Vs State of Jharkhand, 2003(2) SCC 401. The relevant portion is extracted below:-
"10. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. (See: Vadivelu Thevar v. State of Madras[AIR 1957 SC 614 : 1957 Cri LJ 1000] .)"
14. In view of the discussion made above, the testimony of P.W.-2 comes within the third category as it is neither wholly reliable nor wholly unreliable. We are afraid that conviction cannot be maintained on her sole testimony until the same is corroborated by other evidence.
15. Apart from above, even the testimony of doctor is also not concrete as in examination in chief he deposed after seeing the (Ex-Ka-1) axe, that the antem mortem injury received by the deceased could have been caused by the said weapon, however, during cross examination he stated that there is only one injury and that injury cannot be caused by the singe blow of the said axe. The aforesaid deposition suggests that the medical evidence does not corroborate the prosecution case and it appears that appellants have been implicated on the basis of suspicion.
16. So far, as recovery of recovery of incriminating articles (i.e. shirts of the appellants and axe) is concerned, in this connection it ,may be submitted that the P.W.-6 Investigating Officer in his testimony deposed that he apprehended the accused appellants on 26 July, 1984 in Raula a little ahead from the Bharatkoop bus stand towards Shivrampur side at a distance of 200 yards and recorded their statements and on their pointing out incriminating articles (axe and blood stained clothes of accused) were recovered from the house of deceased. The said recovery had been disbelieved by the trial court as the blood stained clothes and axe were lying in the court yard of the deceased before the arrest of the appellants. Even,the informant Kashi Prasad in his examination in chief himself admitted that the axe was found lying near the dead body. The relevant portion of the examination in chief is quoted below:-
tc rd eSausa fjiksVZ ,Dth0 d&1 fy[kkbZ rc rd eq>s fdlh us ;g ugha crk;k Fkk fd esjs yM+ds dh xM+klk] dqYgkM+h ;k QlkZ ls dkVk x;k Fkk ;k ughaA eSausa yk'k ds ikl iM+k gqvk dqYgkM+k ns[kk FkkA og dqYgkM+k yk'k ds mRrj rjQ esjs edku ds vUnj tgak ydM+h vkSj dUMk iM+s Fksa ogak iM+k ns[kk FkkA
17. In the instant case, the recovery of the axe and blood stained clothes at the instance of the appellants could not be believed as there is no material to show that the said articles were concealed by the appellants at a place which was known to them only and no one else had the knowledge about it.
18. Now, so far as the motive, as suggested by the prosecution regarding the murder is concerned. It may be noted that in the F.I.R., PW-1 had attributed motive to the appellants for the murder of his son as they were having illicit relationship with his deceased son's wife, i.e., PW-2. His deceased son had also seen illicit relationship approaches of the appellants and he used to scold them and forbid them to visit his house. However, in the trial the entire theory of illicit relationship of the appellants with PW-2 was denied by the PW-1. He had deposed that his deceased son had never objected the visits of the appellants at his house. He also deposed that he never suspected the character of PW-2. He also stated that his deceased son had not told him that he suspected his wife's character. This part of his testimony is extracted below: -
eq>s viuh cgw ds pky pyu ds ckjs esa dksbZ [kjkch utj ugha vkrh FkhA eSa vkiuh cgw ds pky pyu ij fcYdqy 'kd ugha djrk FkkA esjs yM+ds us eq>ls dHkh ugha crk;k fd mls vius cgw ds pky pyu ij 'kd gSA
19. From the aforequoted testimony it can be said that the prosecution has miserably failed to prove motive of the appellants to commit murder of the deceased.
20. Thus, the initial prosecution story as set up in the F.I.R. is also at variance with the story set up by the prosecution at the trial. According to the initial prosecution story there was no witness of the incident but at the trial an eye witness of the incident had been produced. In the FIR motive of the crime has been attributed to the appellants but in the trial the said motive has been denied. These special features of the case create a reasonable doubt about the truthfulness of the prosecution case with regard to the implication of the appellants in the crime.
21. In entirety, considering the overall facts and circumstances of the case, the nature and quality of evidence adduced by the prosecution, we are of the opinion that the prosecution failed to prove guilt of the appellants to the hilt so as to exclude the possibility of any person other than the appellants being the perpetrator of the crime, beyond the shadow of all reasonable doubt. This being the position, the benefit of doubt must be credited to the appellants and they deserve to be acquitted of the charges leveled against them.
22. Accordingly, the appeal is allowed. The judgement passed by Session Judge, Banda dated 05.02.1985 is set aside. The accused appellants Ravi Karan and Babu Lal are acquitted from the charge relating to commission of offence under section 302/34 of Indian Penal Code. The conviction recorded under the judgement aforesaid and the sentence awarded too are set aside. The accused are availing bail, let the bonds and sureties furnished by them be discharged.
Order Dated: 29.11.2019 Ravindra Kumar Singh (Vivek Varma, J.) (Govind Mathur, C.J.)