Allahabad High Court
Jhande Yadav @ Jhundu @ Shiv Kumar vs State Of U.P. on 20 September, 2024
Bench: Rajiv Gupta, Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Neutral Citation No. - 2024:AHC:153656-DB Judgement Reserved On: 23.07.2024 Judgement Delivered On: 20.09.2024 Court No. 47 Case :- CRIMINAL APPEAL No. - 1872 of 2015 Appellant :- Jhande Yadav @ Jhundu @ Shiv Kumar Respondent :- State of U.P. Counsel for Appellant :- Adarsh Kumar,Ashutosh Pandey,Bansh Narain Rai,Kaushlendra Singh,R.S. Tewari,Rajesh Kumar Mishra,Tribhuwan Singh Counsel for Respondent :- Govt. Advocate, Rakesh Dubey WITH 2. Case :- CRIMINAL APPEAL No. - 1814 of 2015 Appellant :- Virendra Respondent :- State of U.P. Counsel for Appellant :- Kaushlendra Singh,Krishna Dutt Awasthi,Sarvesh Kumar Pandey,Smt. Mithilesh Tiwari Counsel for Respondent :- G.A.,Rakesh Dubey WITH 3. Case :- CRIMINAL APPEAL No. - 2110 of 2015 Appellant :- Indra Bahadur Singh Respondent :- State of U.P. Counsel for Appellant :- Bimla Prasad,Kaushlendra Singh,Mrityunjay Datta Tiwari,S.K. Rao Counsel for Respondent :- G.A.,Rakesh Dubey WITH 4. Case :- CRIMINAL APPEAL No. - 2184 of 2015 Appellant :- Shivnath Yadav Respondent :- State of U.P. Counsel for Appellant :- Awadh Bihari Pandey,Bimla Prasad,Mrityunjay Datt Tiwari,Rajiv Lochan Shukla Counsel for Respondent :- G.A.,Rakesh Dubey WITH 5. Case :- CRIMINAL APPEAL No. - 2400 of 2015 Appellant :- Ghanshyam Singh And 2 Others Respondent :- State of U.P. Counsel for Appellant :- Bimla Prasad,Kaushlendra Singh,Mrityunjay Datta Tiwari,Mrityunjay Dutt Tiwari,S.K. Rao Counsel for Respondent :- G.A.,Rakesh Dubey WITH 6. Case :- CRIMINAL APPEAL No. - 3001 of 2015 Appellant :- Chaloo Yadav @ Ram Chandra Yadav Respondent :- State of U.P. Counsel for Appellant :- Adarsh Kumar,Awadh Bihari Pandey,Bansh Narain Rai,Ramesh Chandra Yadav,Shiv Nath Singh,Shiv Nath Singh Yadav Counsel for Respondent :- G.A.,Rakesh Dubey WITH 7. Case :- CRIMINAL APPEAL No. - 968 of 2019 Appellant :- Lalli Singh Respondent :- State of U.P. Counsel for Appellant :- Bimla Prasad,Kaushlendra Singh,Mithilesh Tiwari,Mrityunjay Datta Tiwari,Sarvesh Kumar Pandey Counsel for Respondent :- G.A.,Rakesh Dubey Hon'ble Rajiv Gupta, J.
Hon'ble Samit Gopal, J.
(Per: Samit Gopal,J.)
1. These criminal appeals are connected together as being of co-accused persons which have been preferred against the judgement and order dated 15.4.2015 passed by the Additional District and Sessions Judge, Court No. 2, Kanpur Nagar in Session Trial No. 07 of 2003 (State vs. Indra Bahadur Singh and 8 others) whereby the accused-appellants Lalli Singh, Virendra, Jhande Yadav @ Jhundu @ Shiv Kumar, Chaloo Yadav @ Ram Chandra Yadav, Ghanshyam Singh, Jay Karan Singh, Jhallar Singh, Shivnath Yadav and Indra Bahadur Singh have been convicted and sentenced under Section 147 I.P.C. to 01 year rigorous imprisonment and a fine of Rs.5,000/- each and in default of payment of fine to 01 month additional imprisonment, under Section 148 I.P.C. to 01 year rigorous imprisonment and a fine of Rs.5,000/- each and in default of payment of fine to 01 month additional imprisonment, under Section 302 read with 149 I.P.C. to life imprisonment and a fine of Rs.10,000/- each and in default of payment of fine to 02 months additional imprisonment. The sentences have been ordered to run concurrently and benefit of set off under Section 428 Cr.P.C. has been ordered to be extended to the convicted accused persons.
2. A First Information Report has been lodged against Harnam Singh, Indra Bahadur, Ghanshyam, Virendra, Lalli, Jaikaran and Jhallar, all being residents of village Sipai, Police Station Bindaki, District Kanpur Nagar.
3. During investigation complicity of Shiv Nath Yadav, Pappu Yadav, Chaloo Yadav@Ram Chandra Yadav and Jhande Yadav @ Jhundu @ Shiv Kumar came to light and as such they were also made accused in the present matter. The investigation concluded and a charge sheet no. 129 of 2001 dated 05.8.2001 was filed against Lalli Singh, Jai Karan Singh, Jhallar Singh, Pappu Yadav@ Karpuri and Shiv Nath Yadav. Further Charge Sheet No. 129A of 2001, dated 20.09.2001 was submitted against Chaloo Yadav @ Ram Chandra@Balbir and also against Jhande Yadav @ Jhundu @ Shiv Kumar as an absconder.
4. The accused Indra Bahadur Singh, Ghanshyam Singh, Harnam Singh and Virendra who were named in the F.I.R. were exonerated by the Investigating Agency. They were subsequently summoned under Section 319 Cr.P.C.
5. In so far as Harnam Singh, son of Mani Singh is concerned, his trial stood abated vide order dated 16.10.2007 of the trial court. The trial of Pappu Yadav @ Karpuri also stood abated vide order dated 06.07.2013 of the trial court.
6. The prosecution case as per the F.I.R. lodged on 10.07.2001 at 07:45 a.m. by Babu son of Jagmohan of which Shyam Sunder is the scribe, against 07 named persons namely Harnam Singh, Indra Bahadur, Ghanshyam, Virendra, Lalli, Jaikaran and Jhallar is that around 02 months back Rs.50/- was to be taken from Desi Darji by the persons of sanger group and milk of Desi Darji used to be given to Babu Yadav and then the said persons demanded Rs.50/- of Desi Darji from him, on which he refused giving money and stated that he will only give it when Desi Darji tells him to return, on which the said persons scolded his son Narendra in Sidhi Bazar. His son had beaten Dinesh@Topilal the grandson of Harman Singh with kicks and fists. Due to this reason Sangers entered inside his house with lathi and dandas and assaulted them. The village persons intervened and got the matter settled but the said persons regularly used to extend death threats to them. Today on 09.07.2001 at mid-night his son Azad, like regular days, was at the tube-well for ensuring its safety wherein at about 11:00 p.m. Harnam Singh exhorted to murder him and then stated that he would take care of everything, after which his sons Indra Bahadur, Ghanshyam with Virendra, Lalli, Jai Karan, Jhallar and others armed with Barchhi and country-made pistols started moving ahead in which Virendra and Indra Bahadur were carrying country-made pistols and Ghanshyam, Lalli, Jai Karan and Jhallar were carrying Barchhi with them. On suspicion, he and his brother namely Babu son of Jagmohan and Raj Bahadur son of Jagmohan proceeded from the village and as soon as they reached the tube-well and saw the said persons had already committed murder. Both the brothers have witnessed it and identified the accused persons well. On their shouts the accused persons while abusing ran away. They were seen in the moon-light and very well identified but due to fear he could not come to the police station earlier but now he has come to give an information.
7. The said F.I.R. was lodged as Case Crime No. 149 of 2001, under Sections 147, 148, 149, 302/34 I.P.C., Police Station- Bindaki, District Kanpur Nagar.
8. Investigation in the matter started and blood stained earth and plain earth, blood stained and plain ropes of cot were taken by the police and sealed on 10.07.2001 and memo of it was prepared. One pair of 'hawai chappal' of the deceased was also taken by the police and a recovery memo of the same was also prepared on 10.07.2001. The inquest on the body of the deceased was conducted on 10.07.2001.
9. Post mortem examination of the deceased Azad was conducted on 11.07.2001 at 01:00 p.m. by Dr. Somnath/P.W.-2. The following injuries were found on his body: -
"1. Multiple punctured wound in area 14cm X 13cm on the front and left side of chest, size 1.5cm x 1.5 cm x chest cavity deep, 12 in numbers, each wound being 5cm in size. Margin sharp everted, 8cm below 8cm at notch, 6cm from Right nipple at 9 o'clock position, 8cm below left axilla.
2. Multiple punctured wound, 3 in numbers in area 16cm x 7cm x abdominal cavity deep. Margin sharp everted, 13cm above pubic symphysis 6cm from umbilicus at 10 o'clock position.
3. Stab wound 3 in numbers in area 9cm x 7cm x 2cm x trachea deep front and right side neck, 7cm above sternal notch. Cut at 3 side 6cm below chin, margin sharp everted.
4. Stab wound 3cm x 2cm x bone deep underlying maxilla cut, margin sharp on the right side face 1cm below right eye.
5. Lacerated wound, 4cm x 1.5cm on the right side forehead just above right eyebrow."
Cause of death was opined as haemorrhagic shock as a result of ante mortem injuries.
10. Blood stained earth, plain earth, blood stained ropes and plain ropes of cot were sent to chemical analyst for analysis who through his report dated 13.12.2001 opined that plain earth and blood stained earth appears to be of the same nature and plain rope of the cot and blood stained rope of the cot also appear to be of the same nature.
11. Investigation concluded and a Charge Sheet No. 129 of 2001 was submitted under Sections 147, 148, 149, 302/34 I.P.C. against Lalli Singh, Jaikaran Singh, Jhallar, Pappu Yadav@Kapoore and Shivnath Yadav.
12. Subsequently another Charge Sheet No. 129A of 2001 dated 20.09.2001 was submitted under Sections 147, 148, 149, 302/34 I.P.C. against Chaloo Yadav@Ram Chandra Yadav. In so far as Jhande Yadav @ Jhandu@Shiv Kumar is concerned, he was charge sheeted as an absconder.
13. Vide order dated 09.07.2003 the Additional Sessions Judge, Court No. 5, Kanpur Nagar framed charges against Lalli Singh, Jai Karan Singh, Jhallar Singh, Pappu Yadav @ Karpuri, Shiv Nath Yadav, Chaloo@ Ram Chandra Yadav and Jhande Yadav under Sections 147 I.P.C., 148 I.P.C. and 302/149 I.P.C. The charges were read to the accused and explained to them who pleaded not guilty and claimed to be tried.
14. Vide order dated 05.08.2004 passed by the Additional Sessions Judge, Court No. 5, Kanpur Nagar, charges under Sections 147 I.P.C., 148 I.P.C. and 302/149 I.P.C. were framed against Harnam Singh, Indra Bahadur Singh, Ghanshyam Singh and Virendra. The said accused also were read and explained the charges, who pleaded not guilty and claimed to be tried.
15. The prosecution in order to prove its case produced the following witnesses:--
P.W.-1 Babu Yadav (first informant) P.W.-2 Dr. Shobh Nath P.W.-3 Virendra Yadav P.W.-4 Constable Chandra Prakash P.W.-5 S.I. Dal Chandra (Investigating Officer) P.W.-6 Ram Asre P.W.-7 Gautam Dhanuk P.W.-8 Awadhesh Trivedi P.W.-9 Virendra Singh@Neta son of Purushottam
16. With regards to the documentary evidence, the prosecution produced the following documents to prove charges against the accused, these are marked as under:
Ex. Ka-1 Written report.
Ex. Ka-2 Post Mortem Report Ex. Ka-2A Death report of Harnam Singh given by Gram Pradhan.
Ex. Ka-3 Chik F.I.R.
Ex.-Ka-4 Report regarding destruction of G.D. Ex. Ka-5 Certified carbon copy of G.D. of registration of case.
Ex. Ka-6 Panchayatnama Ex. Ka-7 Photograph of dead body Ex. Ka-8 Challan of dead body Ex. Ka-9 Letter of C.M.O. Ex. Ka-10 Sample of seal Ex. Ka-11 Recovery memo of plain and blood stained earth and plain and blood stained rope of cot.
Ex. Ka-12 Recovery memo of one pair of Hawai Chappal Ex. Ka-13 and 15 Site plan Ex. Ka-14 Report of Forensic Science Laboratory Ex. Ka-15A Charge Sheet against Lalli Singh and others Ex.Ka-16 Memo of Attachment of accused Chaloo Yadav@Ram Chandra @ Balwan Ex. Ka-17 Memo of attachment of accused Jhande@Jhandu Yadav Ex. Ka-18 Charge Sheet against Jhande Yadav and Chaloo Yadav (as an absconder)
17. The material exhibit produced by the prosecution are as under:
Material Ex. -1 and 2 Slippers of deceased Material Ex.-3 Blood stained earth Material Ex.-4 Plain earth Material Ex.-5 Clothes of deceased
18. The accused Jaikaran Singh, Jhallar Singh were produced before the Metropolitan Magistrate-IV, Kanpur Nagar on 02.08.2001 and their confessional statements under Section 164 Cr.P.C. were recorded. The accused Lalli Singh was produced on 25.07.2001 before the Metropolitan Magistrate-IV, Kanpur Nagar and his confessional statement was also recorded under Section 164 Cr.P.C.
19. Amongst the prosecution witnesses Birendra@ Neta and Awadhesh Trivedi were produced on 24.07.2001 before the Metropolitan Magistrate-IV, Kanpur Nagar and their statements under Section 164 Cr.P.C. were recorded. Further Gautam and Shivram the alleged witnesses were produced on 25.07.2001 before the Metropolitan Magistrate-IV, Kanpur Nagar and their statements under Section 164 Cr.P.C. were recorded.
20. Amongst the persons whose statements were recorded under Section 164 Cr.P.C. Shivram whose statement was recorded on 25.07.2001, was not produced in the trial.
21. Babu Singh Yadav P.W.-1 the first informant of the matter, reiterated the version stated by him in the F.I.R. and he states that the deceased Azad is his son. The incident is about 05 years and 04 months old. At about 11:30 p.m. he was getting milk filled at the door of his house. His son Narendra used to bring milk from village after getting it miltched which used to be collected and then sold in the market. He was getting the same milk filled. The doors of his house and the doors of the shop of the accused Lalli are in front of each other. Harnam Singh was telling the other accused persons that they would finish Azad today as he has gone to sleep at tube-well. All the accused persons had collected at the shop of Lalli Singh. 2-3 months ago Dinesh the grandson of Harnam Singh who is also called Topilal and his son Narendra had a fight at Sidhi Bazar in which Narendra had assaulted him with kicks and fists. On the saying of Harnam Singh all the accused persons had entered into his house and assaulted ladies, him and his son with lathi and danda but the people of village had intervened and saved them. They had accepted their fault and had apologized for it by saying that they are not having the status to fight with them since they are only house of the caste in the village, but his son Azad did not extend apology. The accused persons even before the present incident used to threaten him of murdering him. The said incident was prior to the present incident. In the night of the present incident Harnam Singh told the other accused persons to murder Azad and after sometimes the accused persons were not seen and then he thought that they must have gone to his tube-well. He and his son Brijendra went to the tube-well. They were carrying torches in their hands and night was also bright. Indra Bahadur Singh and Virendra Singh threatened them by putting country-made pistols on them and told them that if they move forward they will be murdered. Lalli, Jai Karan, Jhallar and Ghanshyam were assaulting his son Azad with Barchhi. Jhande, Pappu Yadav, Chaloo and Shiv Nath were carrying lathis and were standing nearby. When the accused persons after assaulting Azad, moved away towards 'nahar' then they picked up Azad and saw him to be dead. He states that report of the incident was dictated by him to his cousin brother Shyam Sunder at about 06:00 a.m. at that place and whatever he had written he had dictated to him, the same was read to him, he had put his thumb impression and then went to the Police Station and lodged it. After lodging of his report, S.H.O. reached the place of occurrence. The incident is of 09th and the report was lodged on 10th. He does not remember the month and the year since he is illiterate. The accused persons have murdered his son Azad as there was a prior incident of beating between Narendra and Dinesh.
In his cross-examination he states that he and his brother Raj Bahadur had gone at the place of occurrence. He states that previously he had stated that he and his son Brijendra had gone to the tube-well but the same is incorrect. His brother Raj Bahadur had gone with him. Brijendra had reached the place of occurrence after half an hour of the incident. He states of dictating the report to Shyam Sunder. He states that he is an eye witness of the incident. He states that he has stated of 11 accused persons in the matter but in the F.I.R. name of only 07 accused persons have been given since he remembered their names only at the relevant time. He states that he saw Lalli, Jaikaran, Ghanshyam and Jhallar assaulting his son Azad with 'Barchhi'. He does not remember how many blows were given. In the morning when all the people collected, then the injuries on the body were counted which were found to be about 42 in number. There was no firearm used on the deceased. Virendra Singh and Indra Bahadur Singh did not fire but they had threatened him and his brother Raj Bahadur with their country-made pistols and assaulted them with fists on their chest and threatened them that if they moved forward they will be murdered. When his son Brijendra reached at the place of occurrence, by that time the accused persons had left the place and had proceeded towards the tube-well. He did not see the incident. The accused Shiv Nath, Jhande, Pappu and Chaloo were armed with lathis and were standing at that place but did not assault anyone or did any act with it. When he and his brother Raj Bahadur reached the place of occurrence at that time the accused persons were assaulting Azad and after their assault, when he went near Azad he found him to be dead. He then picked up Azad in his lap and saw him, by that time the accused persons had moved out from that place. He states that after he and his brother Raj Bahadur were threatened with country-made pistols by Virendra and Indra Bahadur Singh, they did not try to run away as no one would run away at that time. They were not having any fear but still the accused did not assault them. They were pushing them back and stopped them to proceed further. They used to proceed further and then accused used to push them back. This carried on for about 15 minutes. In the said 15-20 minutes no accused assaulted him or Raj Bahadur. He states that he went to the Police Station along with Rajendra, Shyam Sunder and his brother Raj Bahadur. They went there on bicycle. They reached the police station at about 08.00 p.m. on the next day of the incident. He states that his statement under Section 161 Cr.P.C. was recorded on the day of incident. His brother Raj Bahadur was present in his house near the house of witnesses. He went to some distance from his house and then called his brother and told him that they have to come to the house. He called him from a distance of about 10 steps from the house of Raj Bahadur. The house of Raj Bahadur is about 30 steps away from his house. He states that he did not see the accused going to the place of occurrence. When he reached the place of occurrence then he saw the accused there. The accused did not go to tube-well in front of him. His tube-well is situated at a distance of about 4-10 furlong south of village. His tube-well is in the field where there is an orchard. He had told the Investigating Officer that Virendra and Indra Bahadur were stating to them to not come forward and pushed them back. This carried for about 15-20 minutes. If the investigating officer has not written this in his statement, he cannot tell the reason for it. He states to suggestion that it is incorrect that the accused persons are witnesses against him in a case and due to village enmity and political reasons he is falsely implicating them. Further he denies the suggestion that he has not seen the incident and on receiving information in the morning he found the dead body of his son Azad. He further states that Raj Bahadur is his brother and it is incorrect to state that he has not taken name of the person going with him but had stated that Brijesh was going with him.
22. P.W.-2 Dr. Somnath was posted on postmortem duty on 11.07.2001 at V.H.M., Kanpur Nagar. On that date he conducted the postmortem examination of Azad Yadav aged about 27 years. The injuries as noted by the doctor have already been mentioned above and as such are not being mentioned herein as being repetitive.
In his cross-examination he stated that there were 15 piercing injuries in all. He further stated that the injuries could have been caused by a hasia or any pointed weapon if it is used in a straight manner. He further states that the incised wounds could have been caused by one weapon. They are likely to have been caused by a knife. He clarifies further after being recalled that in the postmortem in column of date he has incorrectly mentioned 07.11.2001 in place of 11.07.2001 and further in the column relating to the death he has wrongly mentioned 09.11.2001 in place of 09.07.2001.
23. P.W.-3 Virendra is the son of the first informant Babu and elder brother of the deceased Azad. His testimony is on the basis of hearsay evidence. He states that the incident is of 09.07.2001 at about 11 pm. He was at his house. Around 03 months ago his brother Narendra had a fight on Sidhi Itara. The fight was with Topilal @ Dinesh the grandson of Harinam with regards to the fact that he was taking milk of Desi Darji and his father had a due of Rs. 50/- on him. Topilal had demanded the money at Sidhi Itara Bazar. His brother Narendra said if Desi Darji tells him to give money then he would give him. Narendra was beaten by Topilal after which Narendra also beat him. He states that on 09.07.2001 at about 8 pm when he and other persons were filling milk then all the accused came in his house and entered inside and started assaulting everyone. They apologized to them but his brother did not. His brother had brought milk from Sone Gadaria. Lalli Singh caught hold of the hand of his brother and said that whoever has named him as Azad, he would be finished. His father was sitting outside the house and after sometime all the accused persons were seen going towards his field on which his father became suspicious and his father took his uncle Bahadur with him and went towards the field where they saw all the accused persons assaulting. When his father came back home then he told them that Azad has been murdered. In the morning his father lodged a report at Police Station Bidhnoo. Due to the said enmity his brother has been murdered.
In his cross-examination he states that his brother Azad had gone to the tube-well at about 9 pm. He did not see the accused going to the tube-well. His father saw them going. He saw the accused coming to his house in the evening but after that did not see them going anywhere. When his father and uncle Bahadur went he was sleeping. He states that he was at the house and sleeping. His father came to the house at about 12 midnight and woke him up and told him about the incident. He lives in a separate house from his father but the same is also besides the house. His father told him that the accused persons have murdered Azad and told him about their names. As there was no facility of conveyance, report could not be lodged on the same day. On the next morning he went with his father for getting a report lodged along with uncle Shyam Bahadur. He states that he did not tell the Investigating Officer that in the morning when his father and uncle came home then they told him that Azad has been murdered. He states that he had told the Investigating Officer that there is a suspicion that the persons who had come in the evening have murdered his brother. He went at the place of occurrence later. He is not an eye-witness of the incident. He states that when his father told him of the incident in the night he did not tell to anyone in the village. People gathered in the morning. He did not see his father and uncle going towards the field. The incident has been witnessed by Ghanshaym and his brother Vishram Singh. He states that it is incorrect that he is giving evidence against the accused since they are witnesses against them. He further denies the suggestion that his father and uncle went to the place of occurrence at 11 p.m. and came back in the morning. He states that he did not give the statement to the Investigating Officer that his father and uncle when came back in the morning then told him that Azad has been murdered. The said fact was told to him in the night. He had told the Investigating Officer about the names of the persons involved in the incident three months back. He had told the name of Topilal but did not tell the name of anyone else. He told the Investigating Officer that the persons who had fought three months back have been murdered. He is giving evidence on the basis of information given to him by his father and uncle.
24. P.W.-4 Chandra Prakash is the Head Constable who lodged the first information report, prepared its chik and also prepared the corresponding GD of it. He states that the original GD of the same has been weeded out, a report of which has been given by the Record Keeper, Police Office which has been filed by him and marked as Exb: Ka-4. He proves the said documents and also proves the writing of Constable Kaushal Kishore.
25. P.W.-5 Dalchandra is the Investigating Officer of the matter. He states that after lodging of the first information report he took up the investigation himself and proceeded to the place of occurrence. He investigated the spot. The inquest on the body of the deceased was conducted and the relevant papers were prepared after which the dead body was sealed and sent for postmortem examination. The plain earth blood stained earth, plain rope of cot and blood stained cot rope were taken into custody and a memo of the same was prepared. A pair of hawai chappal of the deceased was also taken into possession and a memo of the same was prepared. In the presence of the informant he investigated the place of occurrence and prepared the site plan. He then recorded the statement of witnesses of inquest and that of other witnesses. He then raided the house of the accused. The material as collected from the place of occurrence was sent by him to the Forensic Science Lab and a report of the examination was received which is on record. On 16.07.2001 accused Harnaam Singh was arrested by him and his statement was recorded. On 22.07.2001 the accused Lalli Singh and Pappu were arrested and their statements were recorded. Both the accused gave their confessional statements under Section 164 Cr.P.C. for which they were sent to the court concerned and their statements were recorded. He then states to have conducted an inspection of the place of occurrence on the basis of pointing out of the accused and their confessional statement and prepared the site plan of it which is Exb: Ka-15. On 23.07.2001 accused Lalli Singh, witness Ram Asrey, Neta @ Virendra, Shivram, Gautam, Awdhesh and Pramod Pandey were interrogated and their statements under Section 164 Cr.P.C. were recorded. He states of filing of two charge-sheets which are dated 05.08.2021 and 20.09.2021. The details of the charge-sheets have also been mentioned above.
In his cross-examination he states that the place from where he collected the blood stained earth, the plain rope of cot, blood stained rope of cot and one pair of chappals is shown in the site plan dated 10.07.2001 which is Exb: Ka-13. It is the place where the tube-well of the informant is situated. On 22.07.2001 he states to have prepared another site plan which is of the place of murder of the deceased Azad. The place where murder was committed is the field of Monau Kumar. He did not get any blood stained earth at the said place. The place where the body was thrown after murder is situated at about 92 steps away. He states that he interrogated the informant Babu in a question answer form and in the first question he asked about Shiv Nath Yadav and Pappu Yadav etc. coming out of his house in the evening and having a fight there on which he stated that Shiv Nath Yadav, Chalu Yadav and Lalli Yadav had come. On asking the names of the accused he stated that he has named all since he has enmity with them. He further states that during investigation he finds the name of Harnaam Singh, Indra Bahadur Singh, Ghanshaym Singh and Virendra Singh to be false and as such did not charge-sheet them.
In his cross-examination he states that Jhande Singh, Pappu, Shivnath, Ramchandra @ Chalu were not stated to have participated in the incident and to have been present therein. He states of recording the statement of Virendra on 14.07.2001. He states that the statement of Lalli Singh and Jai Karan Singh was recorded under Section 164 Cr.P.C. by the IVth Metropolitan Magistrate. He states that he and the Metropolitan Magistrate were of the same batch and for one year worked in the police department. He denies the suggestion that on his saying without the accused giving their confessional statement the Magistrate concerned has written their statements in his chambers in the presence of the said witnesses as they were known to each other and then the accused were made to sign on it and the accused persons have not given any statement before the Magistrate concerned.
26. P.W.-6 Ram Aasrey is a resident of the same village as that of the first informant. He states that in the night at about 12 midnight he and Neta @ Virendra were going for making a call to Unnao where his relatives live. At the side of the road beneath a mango tree some people were talking on which he flashed his torch and saw 07 people namely Shiv Nath Yadav, Pappu, Jhande, Chahlu, Lalli, Jai Karan, Jhallar. They were conversing that if anyone tells about this murder then they will also let him meet the same fate. Due to fear he and the other person came back. In the morning they came to know in the village that Azad Yadav has been murdered in the night. On hearing about it he reached the place of occurrence where he saw the mother of the deceased crying and saying that Shiv Nath Yadav, Pappu, Jhande, Chahlu have murdered her son. He gave his statement to the Investigating Officer and also in the Court. Shiv Nath Singh was carrying a barchi in his hand, Jhande and Chahlu were also carrying barchi and Pappu was carrying a torch. Whatever he had heard the accused talking, he told the father of Azad about it.
In his cross-examination he states that he had seen the accused persons about four fields away from the tube-well of Azad. He told the father of Azad about the incident of the night at his door. He did not give torch which he was carrying to the Investigating Officer and neither did the Investigating Officer see it. He even did not ask for it from him. He did not show the tree where the accused were talking to the Investigating Officer as the Investigating Officer told him that he has seen it. He states that he did not see the incident and cannot tell as to who committed the incident. He states to have given his statement under Section 164 Cr.P.C. on the saying of the Investigating Officer. He had given the same statement under Section 164 Cr.P.C. as to what he had given to the Investigating Officer. He denies the suggestion that since he has enmity with the accused he is giving a false evidence.
27. P.W.-7 Gautam Dhanuk is a resident of the same village as that of the first informant / P.W.-1 and his house is situated near the house of the informant. He states that on the day of incident at about 8-9 pm he heard shouts and abuses at the house of Babu Yadav. On hearing the same he went there. The lantern was burning at the place. He saw people fighting there but there were no talks with regards to Azad. The said witness was declared as hostile by the trial court.
In his cross-examination he states that he did not see Jhande Yadav, Chalu Yadav, Shiv Nath Yadav and Pappu Yadav at the door of Babu Yadav abusing. Lalli Yadav was also not present there. His statement was recorded by the Investigating Officer. He had told him about the incident of abusing. He had told him that they were saying that Azad had not returned the money and insults them and they would see him. He states that on the next date he came to know that Azad has been murdered but he did not see it himself. He denies his statement as produced before him under Section 164 Cr.P.C. and states that he did not give any such statement.
28. P.W.-8 Awdhesh Trivedi is also a resident of the same village as that of the first informant / P.W.-1. He states that accused Pappu Yadav has died. He further states that on 15.07.2001 at about 5 pm accused Jhande, Shiv Nath, Chalu and Pappu did not come to him and neither did they talk of anything about the murder of Azad with him and also did not tell him about collectively murdering with Jhallar, Lalli Singh and Jai Karan. The said persons did not ask for any help from him. This witness was declared hostile.
In his cross-examination he states that he came to know that Azad has been murdered. He states that the Investigating Officer did not enquire anything from him about the murder. He denies that any such statement under Section 164 Cr.P.C. was recorded in Court on 25.07.2001. On being confronted with the said statement he states that he did not sign on the said pages before the Magistrate but the Investigating Officer got him signed on the papers. He completely denies of recording of any such statement under Section 164 Cr.P.C.
29. P.W.-9 Virendra @ Neta is also a resident of the same village as that of the first informant / P.W.-1. He states that on 09.07.2001 he was not present in his village. On the said night Azad was murdered. He did not hear the accused persons talking and conspiring for the murder of Azad. He did not see them. He was declared hostile by the trial court.
In his cross-examination he states that he is illiterate. On showing his statement under Section 164 Cr.P.C., he states that he does not know as to who has affixed his thumb impression on it. He denies giving any statement before the Magistrate.
30. Shiv Shankar Verma was produced as C.W.-1 who testifies regarding death of the accused Harnaam Singh. He is a police personnel who at the time of the incident was posted at the Police Station Bidhnoo. He states that a report was called for regarding the death of Harnaam Singh and after taking a certificate from the Village Pradhan a report was sent to the court about it. In the said report it was mentioned that accused Harnaam Singh Sengar has died on 29.05.2007.
31. Pramod Kumar Pandey C.W.-2 is a resident of the same village as that of the first informant / P.W.-1. He states that he knows the deceased. He states that he does not know when the present incident took place. He further states that he does not know anything about murder of Azad and as to who committed the same. He was declared hostile by the trial court.
In his cross-examination he states that he was not enquired by the Investigating Officer. His statement under Section 164 Cr.P.C. was shown to him to which he states that he did not give any such statement. He states that he does not know as to when and how the Investigating Officer has recorded the same. To a suggestion that he has colluded with the accused, he denies the same.
32. The accused in their statements under Section 313 Cr.P.C. denied the entire prosecution case and stated of being falsely implicated in the matter due to enmity. They state that the witnesses are giving testimony against them due to village party bandi.
33. The accused namely Lalli Singh, Jai Karan Singh and Jhallar whose statements under Section 164 Cr.P.C. have been recorded have denied the entire investigation and also stated of false implication.
34. The trial court thus after recording of the evidence has convicted the accused persons as stated above.
35. Heard Shri Bimla Prasad, Shri Ashutosh Pandey, Shri Rajesh Mishra, Shri Mritunjay Datt Tiwari, Shri Awadh Bihari Pandey, learned counsels for the respective accused-appellants, Shri Rakesh Dubey, learned counsel for the complainant/first informant and Shri Jitendra Kumar Jaiswal, learned A.G.A. for the State in all the criminal appeals and perused the record and also the trial court records.
36. Learned counsels for the appellants submitted as under:
i) The appellants have been falsely implicated in the present case.
ii) The implication of Shivnath Yadav, Babu Yadav, Chaloo Yadav @ Ram Chandra @ Balwan and Jhande Yadav @ Jhandu @ Shiv Kumar in the present matter is an afterthought as the same has seen the light of the day during investigation. They are not named in the First Information Report.
iii) The accused Indra Bahadur Singh, Ghanshyam Singh, Harnam Singh and Virendra Singh were exonerated by the police as they were found to be falsely implicated who were later on summoned under Section 319 Cr.P.C. vide order dated 06.01.2004 of the court concerned. Their implication thus in the present matter is also false as the Investigating Agency did not find them involved in the matter.
iv) PW-1 Babu Yadav the first informant and father of the deceased Azad Yadav is a totally non reliable witness. He did not see the occurrence. He although states to have followed the accused persons with his brother Raj Bahadur but in his statement in Court he initially states that he went to the place of occurrence with his son Virendra but later on states that he called Raj Bahadur and went with him. His movement and the person accompanying him is in variance.
v) There is an inordinate delay in lodging of the FIR inasmuch as the incident is stated to have taken place on 09.07.2001 at about 11:00 pm but the FIR was lodged on 10.07.2001 at 07:45 am by PW-1 Babu Yadav wherein the distance from the place of occurrence and the police station is only 12 kilometres.
vi) The conduct of PW-1 is totally an unnatural conduct. He states of going to the place of occurrence with one person accompanying him and is present at the place of occurrence to witness the murder of his son but he does not make any effort effectively to save his son. He states of being a witness to the murder and then returns back to the house and informs the other house members and then proceeds of lodging of the FIR on the next day morning.
vii) Raj Bahadur the brother of Babu Yadav PW-1 has not been produced before the Court. He is stated by Babu Yadav PW-1 to be the person who was accompanying him in the night to the place of occurrence and the said two persons are the only alleged eye witnesses of the incident but he has not been produced in Court to give his testimony.
viii) The non production of Raj Bahadur before the trial court is an important and relevant fact and would go to show that the prosecution is concealing some relevant material from the court and as such an adverse inference should be drawn against the prosecution for the said conduct.
ix) The evidence of PW-3/Virendra Yadav the brother of the deceased and son of Babu Yadav is based on hearsay evidence. He gives a totally new story about the incident by introducing a fact before the court that before the present incident in the evening the accused persons entered inside his house and assaulted him and the other family members. The said fact is not in the prosecution version at any place. He also is a totally unreliable witness even though his evidence for the present incident is based on hearsay evidence.
x) PW-6 Ram Asre is not an eye witness of the incident. He also names four accused persons namely Shivnath Singh, Jhande, Chaloo and Pappu Yadav in the present matter despite the fact that they were not named in the FIR and states of the said persons along with other accused persons talking about committing the murder.
xi) PW-7 Gautam Dhanuk, PW-8 Awadhesh Trivedi and PW-9 Virendra Singh @ Neta although were also produced before the Magistrate and their statements under Section 164 Cr.P.C. were recorded but they have totally disowned the prosecution version and have stated of not being a witness to any event. They have been declared hostile by the trial court.
xii) The motive as has been brought forward by the prosecution is a very weak motive since the same is stated to be some incident between Narendra the son of the first informant and Dinesh @ Topilal the grandson of co-accused Harnam Singh for Rs. 50/- of charges of milk of Desi Darzi but even Desi Darzi has not been produced and examined in the matter.
xiii) The present incident has taken place at the tube-well of the first informant in his fields which is away from abadi area. The incident appears to have taken place in the night which was noticed in the morning and then the same was reported by PW-1 at the police station in the morning at about 7.45 am.
xiv) The confessional statements of accused Jaikaran, Jhallar and Lalli Singh recorded under Section 164 Cr.P.C. cannot be given any credence as the same has been recorded against the procedures prescribed for it which has been affirmed by the courts. The said accused were not warned of the consequences of the said statements and were even not told of the procedure and warned in explicit words before recording of the same about the fact that the same may be read against them. The said statements cannot be given credence. Even otherwise the prosecution evidence has to be tested and if found totally reliable then the statement of the accused under Section 164 Cr.P.C. if recorded as per the procedure and law can be seen to corroborate the prosecution version.
xv) The accused persons have been falsely implicated in the present case and the present case rests only on the testimony of PW-1 who is also not trustworthy at all and thus the present appeals deserve to be allowed and the accused-appellants deserve to be acquittal.
37. Learned counsel for the first informant submitted as under:
i) PW-1 Babu Yadav is a wholly reliable witness. He has given the details of the incident as witnessed by him in detail which is in no manner is false and unbelievable. He is the father of the deceased who went to the place of occurrence along with his brother Raj Bahadur after hearing talks of the accused persons and they have witnessed the incident.
ii) Raj Bahadur the brother of PW-1 went with him to the place of occurrence. He has been discharged by the prosecution on 30.08.2008 since the request of the prosecution was allowed by the Court and adverse inference regarding his not being produced before the Court cannot be drawn.
iii) The injuries as received by the deceased Azad Yadav and noted in the postmortem examination report corroborate with the prosecution case. The assault on the deceased is stated by four persons with barchi. The injuries received by him are of the weapon as stated by the prosecution.
iv) The version of PW-1 as given in the court also corroborates with the medical evidence. The same thus shows that he was present at the place of occurrence and is an ocular witness to the same who has given a natural version of the incident.
v) The statements under Section 164 Cr.P.C. of accused persons Jaikaran, Jhallar and Lalli Singh would go to show that the concerned court after recording of their statements has made a note that it has made the said persons to understand that he is not being compelled to give the statement but if he does so then the said statement may be used as evidence against him and has then recorded its finding that the said statement has been recorded on the free will of the said accused persons. The said statements thus corroborate with the prosecution version and can be looked into.
vi) There is no delay in lodging of the FIR as the incident is of 11:00 pm of 09.07.2001 after which at 06:00 am the first informant got the report transcribed by the Shyam Sanehi and then proceeded on a bicycle to the police station which is at a distance of 12 kilometres and reached there and then the FIR was lodged at 07:45 am which is without unreasonable delay.
vii) The first informant has stated that due to fear he did not proceed in the night for lodging of the FIR which is a reasonable explanation for not lodging the report in the night itself.
viii) The prosecution has succeeded in proving the case beyond reasonable doubt against the accused-appellants and as such their appeals be rejected and the judgment and order of the trial court be affirmed.
38. Learned counsel for the State has submitted as under:
i) There is no unreasonable delay in lodging of the FIR. The distance between the place of occurrence and the police station is 12 kilometres and the incident being in the night in a dare devil manner had put the first informant in fear and as such he proceeded to the police station in the morning at the earliest for lodging of the report.
ii) PW-1 Babu Yadav the first informant and father of the deceased is a wholly reliable witness and a natural witness. His version of the incident and also his movement which enabled him to become a witness of the incident is having no suspicion and improbabilities.
iii) The arguments of learned counsel for the first informant are reiterated.
iv) The prosecution has proved the case beyond reasonable doubt after which the trial court has convicted the accused-appellants with a well reasoned judgment and order which does not call for any interference in the same. The appeal be thus dismissed.
39. After having heard learned counsels for the parties and perusing the records, it transpires that Azad Singh the son of the first informant Babu Yadav is the deceased in the matter. The occurrence as per the FIR is stated to have taken place on 09.07.2001 at about 11:00 pm at the tubewell in the field of Babu of which the FIR was lodged on the next day i.e. 10.07.2001 at about 07:45 am. The distance between police station and the place of occurrence is 12 kilometres. The First Information Report states of the first informant going behind the accused persons along with his brother Raj Bahadur and then being a witness to the said murder. He states of dictating the First Information Report to Shyam Bahadur in the morning and then proceeding to police station for its lodging. The FIR was lodged against seven accused namely Harnaam Singh, Indra Bahadur, Ghanshyam, Virendra, Lalli, Jaikaran and Jhallar. During investigation, four other accused namely Shivnath Yadav, Pappu Yadav, Chaloo Yadav @ Ram Chandra Yadav and Jhande Yadav @ Jhandu @ Shiv Kumar were made as accused. After investigation, Harnaam Singh, Indra Bahadur Singh, Ghanshyam and Virendra were exonerated who were then summoned under Section 319 Cr.P.C. The first informant during trial initially states that he went behind the accused to the place of occurrence in the night with his son Virendra Yadav, later on states that he went with his brother Raj Bahadur. He further states that he and Raj Bahadur were trying to proceed towards the deceased but the accused persons were pushing them back and threatening them of not proceeding further which stopped them from reaching the deceased.
40. Amongst the other witnesses examined in the trial, Virendra Yadav PW-3 although is the son of the first informant Babu Yadav/PW-1 and brother of the deceased but his evidence is based on hearsay basis.
41. Further the other witness of fact namely Ram Asre PW-6 has stated that he did not see the incident and as such he is not an eye witness of the incident.
42. In so far as the three other witnesses namely Gautam Dhanuk PW-7, Awadhesh Trivedi PW-8 and Virendra Singh @ Neta PW-9 are concerned they have totally disowned the prosecution case including their statements given to the Magistrate under Section 164 Cr.P.C. They have been declared hostile by the trial court. They are not of any help to the prosecution.
43. The case thus rests on the sole testimony of Babu Yadav PW-1 who is the first informant and the father of the deceased.
44. The Investigating Officer has although prepared a second site plan on the pointing out of the accused and has stated that the dead body was found at about 92 steps away from the tubewell but the same is not reliable inasmuch as there was nothing found at the place where the dead body was found and even initially the site plan was prepared in which body was shown to be found at the tubewell. Moreso the second site plan was prepared on the pointing out of the accused which cannot be trusted and relied upon.
45. Raj Bahadur the brother of the first informant Babu Yadav who was the person stated by Babu Yadav to have accompanied him in the night to the place of occurrence and had witnessed the incident was an important and a relevant witness. For the reasons best known to the prosecution they did not produce him before the trial court and claimed his discharge which was allowed. The evidence thus of an important and a relevant witness was thus withheld and suppressed by the prosecution.
46. The confessional statements of the accused Jaikaran Singh, Jhallar and Lalli Singh recorded under Section 164 Cr.P.C. cannot be given credence. The said accused were not warned by the concerned Magistrate prior to recording of their statements. They were even not made to understand before recording of their statements that the same can be read against them and were not given time to think over and then depose. The reading of the statement goes to show that the statements were recorded in a mechanical manner and then the Magistrate concerned made a note therein that he had warned the accused and had made him to understand the consequences but they volunteered to give their statements.
47. The case as it rests on the testimony of a single witness the same has to be wholly reliable. The testimony of PW-1 Babu Yadav cannot be in any manner said to be of sterling quality and he cannot be treated to be a witness wholly reliable. There has been falsehood stated by him, improvements in his statement and also variations which go to the root of the matter and in any event he cannot be trusted as a wholly reliable witness.
The law with regards to appreciation of evidence of a solitary witness
48. In the case of Vadivelu Thevar Vs. State of Madras : AIR 1957 SC 614, the Apex Court while examining the case of solitary witness, held as follows:
"11.......Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. .........................."
49. In the case of State of Rajasthan Vs. Bhola Singh: AIR 1994 SC 542 the Apex Court held as under:
"5. From the abovestated facts, it can be seen that the case rested entirely on the solitary evidence of PW 1. The High Court has pointed out several infirmities in the evidence of PW 1. It is well settled that if the case rests entirely on the sole evidence of the eyewitness, such testimony should be wholly reliable. In this case, the occurrence admittedly took place in the darkness. The two accused were also sleeping in the courtyard along with the other family members, out of whom three were unfortunately killed on the fateful night. PW 1 categorically stated that she woke up only when her mother-in-law was beaten by one of the accused but yet she added that she saw her father-in-law and husband who were sleeping in the courtyard of the house being murdered by the miscreants. This is a clear infirmity in her evidence. That apart, it is highly doubtful that there was any light with the help of which she could have identified the accused. On the other hand, a story was built up that an electric bulb was burning, in support of which there is no material."
50. In the case of Lallu Manjhi Vs. State of Jharkhand : (2003) 2 SCC 401 it has been held by the Apex Court as under:
"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] .)"
51. The Apex Court in the case of Bibin Kumar Mondal Vs. State of West Bengal : (2010) 12 SCC 91, examined the sole testimony of a witness and the following observations has been made:
"31. In Sunil Kumar v. State (Govt. of NCT of Delhi) [(2003) 11 SCC 367 : 2004 SCC (Cri) 1055] this Court repelled a similar submission observing that : (SCC p. 371, para 9) "9. ... as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But, if there are doubts about the testimony the courts will insist on corroboration."
In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
Adverse inference
52. On the issue of non-examination of material witness, in Takhaji Hiraji Vs. Thakore Kubersing Chamansing : (2001) 6 SCC 145 the Apex Court held as under:
"19. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself - whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses..."
(Emphasis supplied)
53. In Rajesh Yadav Vs. State of Uttar Pradesh : (2022) 12 SCC 200 on the issue of non-examination of witness, it was held by the Apex Court as under:
"Non-examination of witness
34. A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it."
164 Code of Criminal Procedure
54. Section 164 of the Code of Criminal Procedure, 1973 reads as follows:
"164. Recording of confessions and statements.- (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:
(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner provided in Section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-
"I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(Signed) A.B. Magistrate."
(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.
(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried."
55. The law with regards to confession is trite.
In the case of Kashmira Singh Vs. State of M.P. : AIR 1952 SC 159 it has been held by the Apex Court as under:
"A confession cannot be made the foundation of a conviction and can only be used in "support of other evidence."
56. In the case of Kuthu Goala Vs. State of Assam : 1980 SCC OnLine Gau 21 : 1981 Cri LJ 424 it was held that a Magistrate must take care to see that the requirements of law.
It was held as under:
"15. The act of recording confessions under Section 164, Cr. P.C. is a solemn act, and in discharging his duties under the said section, the Magistrate must take care to see that the requirements of law under Section 164, Cr. P.C. must be fully satisfied. It would be necessary in every case to put the questions prescribed by the High Court circular, but the questions intended to be put should not be allowed to become a matter of mere mechanical enquiry and no element of casualness should be allowed to creep in. The Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary. The whole object of putting questions to an accused who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise, having reference to the charge against the accused, as mentioned in Section 24 of the Evidence Act."
In the judgment of Kuthu Goala (Supra) Lahiri, J. while dealing with the question of voluntariness of a confession observed as under:
"26. What ought to be the presumption as to the state of mind of an accused who has just committed a gruesome offence like murder? The author of confession belongs to a class of persons known as criminals. Does it really stand to scrutiny that of criminal having committed murder can keep his composure, retain his mental faculty intact; retain his receptive capacity to understand the implications of the warnings. A confession must be "perfectly voluntary" otherwise the Court should reject it. The term "voluntary" means one who does anything of his own free will it must be made spontaneously on his own volition. After commission of such a crime the existence of state of mind cannot be normal. Therefore, is the need to establish that the state of mind of the author was fit enough to make a voluntary incriminatory statement comprehending the implications of his admission. The warnings set forth in S. 164 of the Code are merely illustrative and not exhaustive. In my opinion, a Magistrate recording confession must make inquisitorial enquiry and make adequate exercise to ascertain the impelling reason of the prisoner to confess his guilt. Penitence, qualms of conscience, remorse etc. might be the ready and prepared answers. He must find out the real motive behind making the confession. If he finds that the reason to be well-grounded and the prisoner has a real, genuine and impelling motive to make a clean breast of his crime, he must proceed to record the confession. However, if the answers are halting, incoherent and do not appear to be cogent, the recording Magistrate should cry a halt. The basic object to entrust the serious business of recording confession upon the judicial officers is that they must exercise their judicial knowledge and wisdom to find out whether it is a voluntary confession or not. To adjudge voluntariness, in my opinion, two basic factors should be taken note of. First, the existing mental condition of the prisoner. The Magistrate ought to proceed with the assumption that the prisoner is labouring under mental agony or disorder having arrayed as an accused of a crime. A man in peril undergoing distress and torture, worry and strain is ordinarily not mentally fit person to make a statement to endanger his life and liberty. The Prosecution must confirm that the judicial mind of the recording officer was satisfied, by some objective tests; that a mentally disabled person coming from a criminal class was mentally fit enough to understand the implications of the warnings and to make a fatal statement. Secondly, the Magistrate must satisfy the court by documentary or oral evidence that he had fully exercised his judicial mind to get the real motive or the impelling factor which prompted the prisoner to make the confession. Failing, a confession ought not to be accepted as voluntary?"
(Emphasis supplied)
57. The rule of prudence for Magistrates to typically adhere to certain guidelines to ensure the voluntary nature of confessions are as under:
(a) After issuing warnings to the individual making a confession under subsection (2), the Magistrate should allow ample time for reflection. There's no strict rule regarding the duration, but it's crucial that the confessor's mind is free from any potential police influence. Typically, if the individual is transferred from police custody, they are held in jail custody for at least a day before their confession is recorded.
(b) In every inquiry, the accused must be questioned about their custody prior to appearing and their custody afterward, as well as the treatment they received. This inquiry ensures no external influence, particularly from sources favouring the prosecution, is lingering in the accused's mind. If there are any injuries on the accused, they should be asked how they sustained them.
(c) If the accused is handcuffed, the Magistrate should order their removal, and any individuals likely to influence the accused should be asked to leave, creating a free atmosphere.
(d) The accused should be assured, explicitly, of protection from any potential torture or pressure from external agents such as the police if they decline to make a statement. Additionally, subsection (3) prohibits remanding the accused to police custody if they express unwillingness to confess when brought before the Magistrate.
(e) The accused should be asked about the reason for making a statement that goes against their self-interest during the trial. They should also be informed that even if they retract the confession later, it remains admissible as evidence against them. Failure by the Magistrate to inquire about the accused's reason for confessing was deemed a non-compliance, curable under Section 463.
(f) The Magistrate recording the confession must understand their role as a judicial officer, ensuring the statement is made voluntarily. They should pose questions to ascertain voluntariness, and the record of the confession should reflect these inquiries. While it's necessary to ask the questions prescribed by the High Court Circular, it's crucial that the inquiry isn't mechanical, and there's no hint of casualness. The Magistrate must be fully satisfied that the confession is truly voluntary, ensuring it's not induced by threats, promises, or inducements referenced in Section 24 of the Evidence Act.
(g) A confession must be entirely voluntary; otherwise, the court should reject it. The Magistrate should make an inquisitorial inquiry to understand the prisoner's compelling reason to confess. If the reason appears well-grounded, genuine, and compelling, the confession should be recorded. However, if the answers are hesitant, incoherent, or lack cogency, the recording Magistrate should stop the process.
(h) To assess voluntariness, the Magistrate should consider two factors: the accused's mental state and the Magistrate's own judicial assessment of the motive behind the confession. The Magistrate must ensure that mentally disabled individuals understand the implications of the warnings and the confession they're making.
(i) The Magistrate must provide documentary or oral evidence demonstrating their full exercise of judicial mind to understand the motive behind the confession.
(j) If the prisoner can write, they may be asked to write their own confession. This ensures the confession is in the prisoner's own words and confirms their mental capability to translate thoughts into writing. The inability to write the confession, despite being otherwise capable, suggests mental incapacity to express thoughts in writing, a point emphasised in the Kuthu Goala case (1980 SCC OnLine Gau 21).
Non-Compliance of Section 164 Cr.P.C.
58. Some of the legal ramifications of non-compliance with the provisions of Section 164 Cr.P.C. is of the individual making the confession might not have been cautioned as required by Section 164(2) Cr.P.C., the Magistrate might have failed to record the confession or statement in accordance with Section 164(4) Cr.P.C. or in the manner provided by Section 281 Cr.P.C. or the Magistrate might have omitted to make a memorandum as required by Section 164(4) Cr.P.C.. Section 463 Cr.P.C. aims to address some of these defects and irregularities in the recording of confessions or statements of the accused under Section 164.
59. In the case of Bhukin Vs. King Emperor : 1947 SCC OnLine MP 81 : AIR 1948 Nag 344 it was held that a Magistrate recording a confession ought to question the accused merely with a view to discovering whether the proposed confession is voluntarily or on account of any inducement or threat and the Magistrate should not question the prisoner so as to get answers from him regarding the occurrence which would be inculpatory. The prisoner should be allowed to state whatever he wants and the confession should be recorded in his own words.
60. Further in the case of Sarwan Singh Vs. State of Punjab : AIR 1957 SC 637, the Apex Court held as under:
" .... the questions intended to be put under sub-s.(3) of 164 should not be allowed to become a matter of a mere mechanical enquiry". "The whole object of putting questions to an accused person who offers is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise having, reference to the charge against the accused person as mentioned in Sec.24 of Indian Evidence Act". "That in ordinary circumstance an interval of twenty four hours may be regular as reasonable time for reflection is not to be taken as an absolute rule and as laying down that, whatever the circumstances, a confession recording without allowing time for reflection is to be rejected as a confession that is not voluntary". " The act of recording confession u/s.164 is a Solemn Act and in discharging his duties, under that section, the Magistrate must take care to see that the requirements of law must be fully satisfied"...
61. In the case of Kehar Singh Vs. State (Delhi Admin.) : AIR 1988 SC 1883 it was held as under:
"Where the confessional statement neither points out the warning against the making of the confession, nor does it show that the confession was made voluntarily not sufficient time was given to the person making the confession to have a cool reflection, the confessional statement is liable to be rejected".
62. In the case of Mahabir Singh Vs. State of Haryana : AIR 2001 SC 2503 it was held as under:
"As the confession recorded by PW-2 cannot be brought under Section 164 of the Code it is an idle exercise to consider whether it was voluntary or true. We may again point out, PW-2 has not stated that before taking down the confession he explained to Ranbir Singh that he was not bound to make the confession, and that if he did so, such confession might be used as evidence against him. This is sine qua non for recording a confession. Further a Magistrate is forbidden from recording any such confession until he gets satisfaction that the person is going to make a voluntary confession. There is nothing in the evidence of PW-2 that he had adopted such precaution. For all those reasons we keep that document out of the ken of consideration in this case".
63. Looking to the facts of the case, the law on the subject and the nature of evidence produced, the sole eye witness Babu Yadav PW-1 is not a trustworthy witness, the appeal thus succeeds and is allowed.
64. The judgment and order dated 15.04.2015 passed by Additional District and Sessions Judge, Court No.2, Kanpur Nagar of Sessions Trial No. 07 of 2003 is hereby set aside.
65. The appellants are acquitted of the charges levelled against them. The appellants are on bail. Their bail bonds are cancelled and sureties discharged.
66. Office is directed to transmit the trial court records along with a copy of this judgment to the trial court forthwith for its compliance and necessary action.
(Samit Gopal, J.) (Rajiv Gupta, J.)
Order Dated: 20-09-2024
Naresh/Arif/Abhishek