Allahabad High Court
Anek Singh vs State Of U.P. on 27 February, 2019
Equivalent citations: AIRONLINE 2019 ALL 2146, 2019 (109) ACC (SOC) 49 (ALL) 2019 (6) ADJ 19 NOC, 2019 (6) ADJ 19 NOC
Bench: Vikram Nath, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Court No. - 55 Case :- CRIMINAL APPEAL No. - 1362 of 2011 Appellant :- Anek Singh Respondent :- State Of U.P. Counsel for Appellant :- Nanhe Lal Tripathi Counsel for Respondent :- Govt. Advocate Hon'ble Vikram Nath,J.
Hon'ble Rajeev Misra,J.
(Dictated by Hon'ble Rajeev Misra, J.)
1. How emotion overpowers reason is aptly reflected in this appeal. The son Anek Singh, accused-appellant herein, stands convicted and sentenced with life imprisonment alongwith fine of Rs. 10,000/- vide judgement and order dated 19.01.2011/21.02.2011 passed by the Additional Sessions Judge/ Special Judge (Dacoity Affected Area), Lalitpur in Sessions Trial No. 83 of 2011 (State Vs. Anek Singh) under Section 302 I.P.C., P.S.-Talbehat, District-Lalitpur for an offence punishable under Section 302 I.P.C. for having caused the death of his own mother, i.e., the deceased Smt. Rati Bai. In case of default in payment of fine the accused-appellant is to further undergo detention for a period of one year.
2. We have heard Mr. Ajay Kumar Pandey, the learned Amicus Curiae for the appellant and Mr. Nanhe Lal Tripathi, the learned counsel for the appellant, who had earlier deserted the case and Mr. Arunendra Kumar Singh, the learned A.G.A. for the State.
3. According to the prosecution story as unfolded in the F.I.R. dated 06.06.2008, Saku Lal Yadav, the father of the first informant as well as the accused-appellant died ten years ago. Thereafter, Smt. Rati Bai, the widow of Saku Lal Yadav/mother of the first informant and the accused appellant developed illicit relationship with one Pappu @ Phool Singh. On the unfortunate day, i.e. 06.06.2008, Smt. Rati mother of accused-appellant in the company of one Pappu @ Phool Singh was going out of the village. On the outskirts of the village, accused-appellant Anek Singh is stated to have restrained his mother from going out but she is said to have turned a blind eye to the request of her own son. At this juncture accused-appellant is alleged to have caught hold of his mother by catching the hair of her head and brought her down. He then assaulted his own mother with a stone which was lying nearby. The stone struck the struggling mother on head leading to an injury on the head, from which blood started to ooze out. The younger son Roop Singh tried for a conveyance to carry his injured mother to the Hospital, but due to poverty, he could not arrange the transportation of his injured mother to the Hospital leading to her death at the place of occurrence, which is the outskirt of village Sunauri, District Lalitpur.
4. Roop Singh, the younger son of the deceased Smt. Rati Bai then proceeded to the Police Station Talbehat, District Lalitpur to inform the police of the aforesaid occurrence. He accordingly submitted the written report dated 06.06.2008 (Ext. Ka.-1) of the aforesaid occurrence at P.S. Talbehat, District-Lalitpur, which is in his own handwriting and signature.
5. Upon the submission of the above-mentioned written report dated 06.06.2008 the F.I.R. dated 06.06.2008, was registered as Case Crime No. 821 of 2008 under Section 304 I.P.C. P.S. Talbehat District-Lalitpur. The accused-appellant Anek Singh was nominated as the solitary named accused. P.W.-5, H.M. Chet Ram is the scribe of the F.I.R (Ext. Ka.-2). The check F.I.R. specifically records the date and time of occurrence which is 6.6.2008 at 9:00 am, the date and time of lodging of the F.I.R. i.e. 6.6.2008 at 11:10 am, the distance between the place of occurrence and the police station which is 5 kms. and also the manner of occurrence in very precise and clear terms. In short, the F.I.R. categorically spells out the basic prosecution case.
6. After the lodging of the F.I.R. dated 06.06.2008, the police of police Station Talbehat District-Lalitpur came into motion. P.W.-8, S.I. Ram Babu Singh was appointed as the Investigating Officer. He accordingly commenced the investigation in terms of Chapter XII Cr.P.C. vide parcha no.1 of the Case Diary. He copied the written report dated 06.06.2008 (Ext Ka.-1) as well as the F.I.R. dated 06.06.2008 (Ext. Ka.-2) in the case diary. He thereafter recorded the statement of the scribe of the F.I.R. namely P.W.-5 H.M. Chet Ram in terms of Section 161 Cr.P.C on 06.06.2008. This I.O. then proceeded to the place of occurrence. He appointed (1) Imrat (2) Guman (3) Rajjan (4) Jaipal and (5) Ashok as the Panch Witnesses. Having appointed the panch witnesses he got the inquest of the deceased conducted and prepared the inquest report dated 06.06.2008 (Ext. Ka.-5). As per the inquest report dated 06.06.2008, the inquest commenced at 12.10 AM and was completed at 2.00 P.M. In the opinion of the panch witnesses the death of the deceased Smt. Rati was characterised as homicidal. The inquest report contains the details of the case crime number, in which it was prepared. It also details about the injuries found on the body of the deceased and also the place, where the dead body of the deceased was lying. He recovered the broken bangles of the deceased from the place of occurrence on 6.6.2008 and prepared the recovery memo of the same dated 6.6.2008 (Ext. Ka.-12). The said recovery was witnessed by Jaipal and Imrat. He also recovered the stone used in the commission of the crime which was having blood stain on it from the place of occurrence and prepared the recovery memo of the same dated 6.6.2008 (Ext. Ka.-13). The said recovery is witnessed by the same witnesses Jaipal and Imrat. He also collected earth mixed with blood and plain earth from the place of occurrence on 6.6.2008. He sealed the same separately and prepared a memo of the same dated 6.6.2008 (Ext. Ka.-14). The aforesaid recovery was also witnessed by the same two witnesses namely, Imrat and Jaipal.
7. The Investigating Officer P.W.-8 S.I., Ram Babu Singh after getting the inquest of the deceased conducted, dispatched the dead body of the deceased Smt. Rati Bai for getting the post-mortem done. He accordingly prepared the detailed Police report which included:-
(I) Ext. Ka.-6, Letter dated 06.06.2008 submitted by the I.O. P.W.-8, S.I. Ram Babu Singh to the C. M.O. Lalitpur for getting the Post-Mortem of the body of the deceased conducted.
(ii) Ext. Ka.-7, Letter dated 06.06.2008 submitted by the I.O. P.W.-8, S.I. Ram Babu Singh to the R. I. Police Lines Lalitpur for getting the postmortem of the dead body of the deceased Smt. Rati Bai conducted.
(iii) Ext. Ka.-8, Photograph of the dead body of the deceased (Challan Nash).
(iv) Ext. Ka.-9, Specimen of seal fixed on the packed dead body of the deceased Smt. Rati Bai.
(v) Ext. Ka.-10, Police Form No. 13 relating to the postmortem of the body of the deceased.
8. P.W. -6, Dr. Amit Chaturvedi conducted the postmortem of the body of the deceased. He accordingly prepared the postmortem report dated 07.06.2008 (Ext. Ka.-4). In his opinion the cause of death of the deceased was shock due to ante-mortem injuries. This witness further described the ante-mortem injuries found on the body of the deceased as follows:
"1. Crush injury 25 cm x 15 cm. present over Rt. Side of scalp, forehead, Cavity deep brain matter carrying out (whole) right eye crushed fracture of both mandible, Rt. Frontal temporal, parietal bone fracture."
2. Contused swelling left face 5cm. x 3cm. Fracture of left mandible."
9. The Investigating Officer, P.W.-8, S.I. Ram Babu Singh arrested the accused on 07.06.2008. Thereafter, he recorded the statements of Nepal, Imrat, Karan, Jagdish, Santosh and Contable-Jasram as well as the panch witnesses in terms of Section 161 Cr.P.C.
10. On the basis of the material collected during the course of investigation, this I.O. P.W.-8 S.I. Ram Babu Singh submitted the charge-sheet dated 22.06.2008 under section 304 I.P.C. against Anek Singh, the accused-appellant herein, calling upon him to answer the aforesaid charge.
11. Upon the submission of the charge-sheet dated 22.06.2008 cognizance was taken upon the same by the C.J.M. Lalitpur vide order dated 23.07.2008. Thereafter, the case was committed to the Court of Sessions. Accordingly, S.T. No. 83 of 2008 (State Vs. Anek Singh) came to be registered in the Court of the Sessions Judge, Lalitpur. The Sessions Judge Lalitpur vide order 07.10.2008 framed the charge. Only one charge under section 302 IPC was framed against the accused-appellant.
12. The accused-appellant denied the charge and demanded trial. Consequently, the burden to bring home the charge alleged against the accused-appellant fell upon the prosecution.
13. The prosecution accordingly first led the evidence and adduced eight prosecution witnesses to prove its version of the occurrence. It may however be noted that though in the charge-sheet dated 22.06.2008 as many as 13 witnesses were nominated, only eight prosecution witnesses were examined, who are mentioned herein below:
(i) P.W.-1, Roop Singh ( first informant).
(ii) P.W.-2 Karan (witness of fact).
(iii) P.W.3 Jagdish (witness of fact).
(iv) P.W.-4 Santosh (witness of fact).
(v) P.W.-5, Head Moharrir Chet Ram (scribe of F.I.R.).
(vi) P.W.-6, Dr. Amit Chaturvedi (the Doctor, who conducted the post-mortem of the body of the deceased).
(vii) P.W.-7, Naipal Singh (Witness of fact).
(viii) P.W.-8, S. I. Ram Babu Singh (Investigating Officer).
14. The prosecution further relied upon the material collected by the Investigating Officer i.e. the broken pieces of bangles, the stone which was used in the commission of the crime, sample of plain earth, as well as the sample of earth mixed with blood. The same were duly produced before the Court and marked as follows:
I. Material Ext.-1, the stone which was recovered from the place of occurrence.
II. Material Ext.-2, the broken pieces of the bangles worn by the deceased.
III. Material Ext.-3, the sample of plain earth recovered from the spot.
IV. Material Ext.-4, the sample of earth mixed with blood recovered from the spot.
15. Apart from relying upon the testimony of the aforesaid witnesses, the prosecution also produced documentary evidence to give documentary support to its case. The same were duly admitted/proved and thus, marked as exhibits as per Rule 27 of the General Rules Criminal. The same are described herein below:
(i) Ext. Ka.-1, Written report dated 06.06.2008 (Proved by P.W.-1 Roop Singh, the first informant).
(ii) Ext. Ka.-2, Check F.I.R. dated 06.06.2008 (Proved by P.W.-5 H.M. Chet Ram).
(iii) Ext. Ka.-3, Carbon Copy of the General Diary relating to the entry of the written report dated 06.06.2008 in the General Diary. (Proved by P.W.-5 H.M. Chet Ram).
(iv) Ext. Ka.-4, Post-mortem report dated 07.06.2008 (Proved by P.W.-6 Dr. Amit Chaturvedi).
(v) Ext. Ka.-5, Inquest Report/Panchayatnama dated 06.06.2008 (Proved by P.W.-8, S.I. Ram Babu Singh).
(vi) Ext. Ka.-6, Letter dated 06.06.2008 submitted by the I.O. P.W.-8, S.I. Ram Babu Singh to the C. M.O. Lalitpur for getting the Post-Mortem of the body of the deceased conducted (Proved by P.W.-8, S.I. Ram Babu Singh).
(vii) Ext. Ka.-7, Letter dated 06.06.2008 submitted by the I.O. P.W.-8, S.I. Ram Babu Singh to the R. I. Police Lines Lalitpur for getting the postmortem of the dead body of the deceased Smt. Rati Bai conducted. (Proved by P.W.-8, S.I. Ram Babu Singh).
(viii) Ext. Ka.-8, Photograph of the dead body of the deceased (Challan Nash) (Proved by P.W.-8, S.I. Ram Babu Singh).
(ix) Ext. Ka.-9, Specimen of seal fixed on the packed dead body of the deceased Smt. Rati Bai. (Proved by P.W.-8, S.I. Ram Babu Singh).
(x) Ext. Ka.-10, Police Form No. 13 relating to the postmortem of the body of the deceased (Proved by P.W.-8, S.I. Ram Babu Singh).
(xi) Ext. Ka.-11, Site Plan dated 06.06.2008 prepared by P.W.-8, S.I. Ram Bau Singh (Proved by P.W.-8, S.I. Ram Babu Singh).
(xii) Ext. Ka.-12, Recovery Memo dated 06.06.2008 relating to the recovery of broken bangles of the deceased (Proved by P.W.-8, S.I. Ram Babu Singh).
(xiii) Ext. Ka.-13, Recovery Memo dated 06.06.2008 relating to the recovery of the Stone used in the commission of the crime (Proved by P.W.-8, S.I. Ram Babu Singh).
(xiv) Ext. Ka.-14, Recovery Memo dated 06.06.2008 relating to the recovery of the earth mixed with blood and plain earth (Proved by P.W.-8, S.I. Ram Babu Singh).
(xv) Ext. Ka.-15, Charge sheet dated 22.06.2008 submitted by the Investigating Officer, i.e. P.W. 8, S.I. Ram Babu Singh under Section 304 I.P.C. against the accused Anek Singh (Proved by P.W.-8, S.I. Ram Babu Singh).
16. After the prosecution evidence was over, all the incriminating material and adverse circumstances were placed before the accused-appellant, in terms of Section 313 Cr.P.C. for his version. The accused-appellant denied the questions put to him one by one by repeatedly saying that it is false or he has nothing to say. However in reply to Question No. 8, the accused-appellant made a departure from his usual stand and pleaded his false implication on account of conspiracy.
17. Though the accused-appellant in his statement under Section 313 Cr.P.C. pleaded his false implication on account of conspiracy, he neither deposed before the court below as a defence witness nor he produced any defence witness to establish the plea of false implication on account of conspiracy raised by him. Thus the plea of false implication of the accused-appellant on account of conspiracy as suggested by the accused-appellant himself was just a fanciful doubt engineered by the accused-appellant to belie the prosecution case. As already noted above, since neither the accused appellant himself appeared before the Court below as a defense witness nor produced any witness to explain the false implication of the accused-appellant in the aforesaid case crime number on account of conspiracy, the prosecution version of the occurrence was the only version before the Court below.
18. The prosecution in order to prove its case, first adduced P.W.-1, Roop Singh, the first informant/younger brother of the accusced/younger son of the deceased. This witness in his examination-in-chief detailed the entire events prior to the assault upon the deceased including the conversation which took placed between the accused and the deceased. He has also stated about the illicit relationship of his mother Smt. Rati Bai with Pappu @ Phool Singh. However, this witness clearly denied the factum of having seen the assault upon the deceased. He also proved the written report dated 06.06.2008 tendered by him at P.S. Talbehat, District-Lalitpur, which was marked as Ext. Ka.-1. At this stage, this witness was declared hostile. The prosecution cross-examined this witness in detail. In his cross-examination, this witness has detailed the pedigree of his family. As per the Genealogical Table, Pappu @ Phool Singh is the son of Raja Ram, who is the brother of Saku Lal, the father of the first informant/accused and husband of the deceased. Thus, Pappu @ Phool Singh would be the nephew of the deceased. He has also detailed the illicit relationship in between the deceased and Pappu @ Phool Singh. He further stated that the two had eloped together to Indore and then returned to the village. The aftermath faced by the sons after the return of the mother from Indore on account of the illicit relationship of the deceased Smt. Rati Bai with Pappu @ Phool Singh. He has also stated the physical status of the accused.
19. P.W.-2, Karan is also a witness of fact. This witness in his examination-in-chief has stated that on the day of occurrence, he was in the village. The occurrence had taken place on the pathway leading to the well. This witness clearly denied the factum of himself witnessing the assault by the accused upon the deceased. He, however, admitted the illicit relationship of Smt. Rati Bai, the deceased, with Pappu @ Phool Singh. He further admitted the elopement of Smt. Rati Bai alongwith Pappu @ Phool Singh to Indore and their return to the village subsequently. At this stage, this witness was declared hostile by the prosecution and was accordingly cross-examined by the prosecution. This witness in his cross-examination detailed the family tree, the relationship of his brother Pappu @ Phool Singh with the deceased, the wrath faced by the family on account of the illicit relationship resulting in insult of the sons of the deceased, namely, Anek Singh and Pappu @ Phool Singh.
20. P.W.-3, Jagdish is the younger brother of Pappu @ Phool Singh. This witness in his examination-in-chief has stated about the conduct of his brother Pappu @ Phool Singh, who had kept Rati Bai. This witness, however, denied the factum regarding his witnessing the occurrence. He, however, stated the place where the dead body of the deceased was lying. This witness was declared hostile by the prosecution. Accordingly, this witness was cross-examined by the prosecution. In his cross-examination, this witness admitted of his going to the place of occurrence where the dead body of the deceased was lying. According to this witness, the injury was on the head of the deceased out of which blood was flowing. He further stated that from the platform (Karas Dev Ka Chabutra) the place of occurrence is easily visible. However, he denied his sitting on the aforesaid platform but he also did not disclose the names of the persons, who were sitting on the aforesaid platform. When confronted with his statement under Section 161 Cr.P.C., this witness denied having given any such statement. He however admitted illicit relationship of his younger brother Pappu @ Phool Singh with Smt. Rati Bai, their elopement to Indore and then return to the village. He also admitted the wrath faced by the sons on account of the aforesaid illicit relationship and their social boycott. He, however, clearly stated the place where the occurrence had taken place.
21. P.W.-4, Santosh was adduced by the prosecution as a witness of fact. However, this witness only admitted the fact that Pappu @ Phool Singh is his real brother. Before the occurrence, his brother and Smt. Rati Bai had eloped to Indore. He further admitted that Saku Lal, the father of the accused, was his uncle. After the death of Saku Lal, Pappu @ Phool Singh developed illicit relationship with Smt. Rati Bai. Anek Sing is a physically handicapped person and resided with his mother. He further admitted the separation of Anek Singh and Roop Singh from the community. He, however, clearly denied his having witnessed the assault upon the deceased leading to her death. At this stage, this witness was declared hostile and was examined by the prosecution. In his cross-examination, this witness was confronted with his statement under Section 161 Cr.P.C. He denied having given such statement. He, however, admitted the fact regarding illicit relationship in between Smt. Rati Bai and Pappu @ Phool Singh. He also admitted the wrath faced by the sons on account of the illicit relationship. He, however, denied having seen the assault by the accused upon the deceased.
22. P.W.-5, Head Constable Chet Ram was posted as Head Clerk (Moharrir) at Police Station Talbehat, District Lalitpur in the year 2008. On the basis of the written report (Ext. Ka.-1), he had scribed the F.I.R. dated 06.06.2008. He proved the same. Accordingly, the same was marked as (Ext. Ka.-2). He also produced the original General Diary and proved the entry of the written report in the G.D. vide report no. 29. The carbon copy of the G.D. was thus proved by him and accordingly marked as (Ext. Ka.-3). This witness was cross-examined by the defence but his testimony could not be dislodged. As such, the factum regarding the submission of the written report by the first informant, Roop Singh and the consequential scribe of the Check F.I.R. was a proved fact.
23. P.W.-6, Dr. Amit Chaturvedi is the Doctor, who conducted the post-mortem of the body of the deceased. According to this witness, two ante-mortem injuries were found on the body of the deceased. The first injury is on the forehead, which is a crush injury and cavity deep and the brain matter had come out. On account of this injury, the eye has also been crushed, both jaws right frontal temporal bone and parietal bone have broken. The second injury is on the face having contusions with the bone of the jaw broken. The left eye was found to be missing. In the F.I.R. (Ext. Ka.-1), there is a clear recital regarding the assault on the deceased by the accused by throwing a stone on account of which blood started to flow. As such the anti-mortem injuries found on the body of the deceased stand corroborated from the recital contained in the F.I.R. (Ext. Ka.-1) and the oral testimony of Dr. Amit Chaturvedi as the Doctor has clearly opined that the injuries found on the body of the deceased could have been caused by the blow of a heavy stone. As such, it is established that the death of the deceased occurred on account of the stone having been thrown at the deceased. P.W.-8, Ram Babu Singh has stated that the stone weighed approximately 10Kg. and was sufficiently big in size. According to the prosecution, the occurrence took place at 9.00 AM. In the opinion of the Doctor, who conducted the autopsy on the body of the deceased on 07.06.2008 at 4.00PM, the death of the deceased occurred 30 to 36 hours before. As such, the medical opinion also confirmed the happening of the occurrence as mentioned in the F.I.R. In the panchyatnama/inquest of the deceased also the anti-mortem injuries have been mentioned which are similar to the injuries noted by the Doctor in the post-mortem report. This witness was also cross-examined by the prosecution but his testimony could not be dislodged.
24. P.W.-7, Naipal Singh is a witness of fact. However, he denied having witnessed, the assault by the accused person upon the deceased or the scuffle, which took place between the deceased and accused Anek Singh before the assault. This witness was declared hostile. Accordingly, this witness was cross-examined by the prosecution. In his cross-examination, he denied the factum of giving his statement to the Investigating Officer under Section 161 Cr.P.C. He, however, admitted the pedigree of the family by stating in detail the relationship of the family of the deceased and himself. He also admitted the illicit relationship of the deceased Smt. Rati Bai with Pappu @ Phool Singh and the opposition to the same by the villagers and the members of the community. He further admitted the elopement of Smt. Rati Bai with Pappu @ Phool Singh to Indore and their subsequent return to the village. He also stated that thereafter, the family of Smt. Rati Bai was totally out caste from the community. He further admitted that after their return from Indore, the accused was residing with his mother Smt. Rati Bai.
25. P.W.-8, S. I. Ram Babu Singh is the Investigating Officer. He has proved the Panchayatnama/ Inquest Report of the deceased (Ext. Ka.-5), the detailed Police scroll, i.e. Ext. Ka.-6 to Ext. Ka.-10. He has also proved the site place of the place of occurrence (Ext. Ka.-11), the memo of recoveries (Ext. Ka.-12 to Ext. Ka.-14) and also the charge-sheet dated 22.06.2008 submitted by him (Ext. Ka.-15). This witness also produced the material exhibits, i.e. the stone, which was recovered from the place of occurrence and was marked as Material Ext.-1, the broken pieces of the bangles worn by the deceased, which were marked as Material Ext.-2, the sample of plain earth recovered from the spot and the sample of earth mixed with blood recovered from the spot were marked as marked as Material Ext.-3 and marked as Material Ext.-4. He also proved the proceedings incorporated in the case diary. This witness was cross-examined to dislodge the prosecution case. However, this witness remained consistent and his testimony consequently remained intact.
26. To establish the innocence of the accused-appellant before the court below, it was urged that the prosecution has not clarified the scribe of the F.I.R. particularly when P.W.-1 Roop Singh (the first informant) has stated that he had only affixed his thumb impression on blank paper. It was also submitted that from the testimony of the prosecution witnesses, it is established that after the death of Saku Lal Yadav, the husband of Smt. Rati Bai, the mother of the first informant and the accused-appellant, she had developed illicit relationship with Pappu @ Phool Singh. They eloped to Indore and there was resentment in the entire village regarding the aforesaid. It was also submitted that there is no motive with the accused to commit the occurrence as the accused Anek Singh was living with his mother Smt. Rati Bai and had never opposed her relationship with Pappu @ Phool Singh. It was also urged that on account of illicit relationship of Smt. Rati Bai with Pappu @ Phool Singh there was serious enmity in between Pappu and his family on the one hand and the villagers on the other hand. As such, people from the same caste as that of Pappu @ Phool Singh as well as the villagers started keeping enmity with him. On the aforesaid factual premise, it was canvassed before the court below that the villagers in connivance with the family members of Pappu @ Phool Singh got the murder of Smt. Rati Bai committed out of conspiracy. It was also argued that it has come in the prosecution evidence that the deceased Smt. Rati Bai and Pappu @ Phool Singh were going on the path leading to the Jungle. However, in case the intention of Smt. Rati Bai and Pappu @ Phool Singh was to go away from the village then certainly they could have taken a path which would take them out of the village. The injury received by the deceased Smt. Rati Bai on the head could have been caused by falling from height. The accused Anek Singh is physically handicapped and he cannot even walk properly. His legs are polio affected. As such, it is impossible to conceive that such a person shall commit the crime particularly in the manner as alleged in the F.I.R. On account of the illicit relationship, Pappu @ Phool Singh used to beat his wife on account of which the in-laws of Pappu @ Phool Singh used to be annoyed with him. Therefore, it cannot be ruled out that the in-laws of Pappu @ Phool Singh may have got committed the murder of Pappu @ Phool Singh. Lastly, it was urged that the Investigation Officer has stated that the stone with which the deceased was assaulted was recovered. The same had blood stains on it. However, the same was not sent to the Forensic Science Laboratory to ascertain whether the blood found on the same is human blood or not.
27. The court below dealt in detail with each of the aforesaid submissions. It examined the same in the light of the evidence on record and the attending circumstances but came to a definite conclusion that none of the submissions urged on behalf of the accused-appellant are cogent enough to dislodge the prosecution case as untrue, nor they create any such doubt much less a reasonable doubt regarding the probability of the prosecution case. As such, the court below concluded that no case for the grant of benefit of doubt to the accused is made out.
28. As the submissions urged on behalf of the accused-appellant did not find favour with the court below coupled with the fact that the prosecution witnesses of fact had already been declared hostile, the court below opined to decide the case as one based upon circumstantial evidence.
29. The court below accordingly in the impugned judgement pointed out the following circumstances, which form the chain of events and are also linked together having proximity to the time and situation. Thus the Court below concluded that when the circumstances are cumulatively considered, they point at the guilt of the accused and leave no room of doubt to accept any other hypothesis but the hypothesis pleaded by the prosecution.
30. As the court below of necessity had to deal with the case as one based on circumstantial evidence, the following circumstances were considered by the court below in order to determine that the circumstantial evidence clearly supports the prosecution story, and thus establishes the guilt of the accused.
(I) P.W.-1, Roop Singh has last seen the accused, Anek Singh with the deceased Smt. Rati Bai on the date of occurrence, i.e., 06.06.2008 just before the occurrence in between 9-10 A.M., at the place of occurrence and heard the conversation which took place in between the two. As such, this witness has last seen the accused Anek Singh with the deceased Smt. Rati Bai just before the occurrence.
(II) Ext. Ka.-1 is the written report dated 06.06.2008 tendered by P.W.-1 Roop Singh at P.S.-Talbehat, District-Lalitpur in respect of the occurrence, which took place on 06.06.2008 at 9-00 AM. The manner in which the occurrence has been described in the written report clearly denotes the presence of P.W.-1 near the place of occurrence and also witness of the occurrence.
(III) P.W.-1, Roop Singh in his statement in chief has denied the factum regarding the submission of the written report (Ext. Ka.1) by him. Only this much had been admitted that his thumb impression was got affixed on plain paper by the Police Sub Inspector at the Police Station. However, in his cross-examination he admitted that after reaching at the dead body of the deceased, he proceeded to the Police Station on a motorcycle to inform the Police that someone has murdered his mother. However, P.W.-5, H. C. Chet Ram, who had entered the written report dated 06.06.2008 in the General Diary vide report No. 29 on 06.06.2008 and also the scribe of the Check F.I.R. dated 06.06.2008 has clearly deposed that it was only on the basis of the written report (Ext. Ka.-1) tendered by P.W.-1 Roop Singh on the date of occurrence, i.e., 06.06.2008 at 11.10AM that he entered the written report (Ext. Ka.-1) in the General Diary vide report no. 29 on 06.06.2008 itself and further scribed the Check F.I.R. dated 06.06.2008 (Ext. Ka.-2). This witness in his cross-examination has further admitted that no complaint was made to the senior officials regarding the taking of the thumb impression of P.W.1 Roop Singh on blank paper by the Sub-Inspector of Police. He has further stated in his statement-in-chief of not having submitted the written report of the occurrence at the Police Station on the date of occurrence whereas, in his cross-examination he has clearly admitted of having gone to the Police Station on the date of occurrence at 11:0 am.
(IV) P.W.1 Roop Sing subsequently sided with the accused Anek Singh being his real younger brother. It is on account of the aforesaid fact that P.W. 1, in his testimony, has denied the factum regarding the submission of the written report and also resiled from the contents of the written report. However, P.W.1 in his cross-examination has admitted that he went to the Police Station Talbehat, on the date of occurrence i.e. 6.6.2008 at 11:10 am. P.W. 5 H.C. Chetram in his testimony has duly admitted that the report submitted by P.W. 1 Roop Singh (Ext. Ka-1) was duly written. No malice/ malafide has been alleged by P.W.1 against the Sub-Inspector of Police of Police Station-Talbehat, District Lalitpur, on account of which the concerned S.I. Could have done the act as alleged by P.W. 1. The failure to lodge any complaint with high officials regarding the alleged act of the concerned S.I. makes deposition of P.W. 1 to the extent as indicated above unbelievable.
(V) No enmity has been alleged by P.W. 1 Roop Sing with the accused Anek Singh. No suggestion has been made by the accused Roop Singh to P.W. 1 in this regard. In his statement under Section 313 Cr.P.C. also, no explanation has been offered by the accused alleging enmity with P.W.1. As such, it is established that there was no enmity between the accused and P.W. 1.
(VI) The F.I.R. dated 6.6.2008 of the occurrence has been promptly lodged and there is no delay in lodging the same. The distance between the place of occurrence and the Police Station is 5 kms. The timing of the incident is said to be 9:00 am of 6.6.2008 whereas, the F.I.R. has been registered at 11:10 am of 6.6.2008. This again goes to show the correctness of the F.I.R.
(VII) The ante mortem injury found on the body of the deceased and a clear description of the same in the F.I.R goes to show the similarity between the two.
(VIII) The anger and anguish on the part of the accused Anek Singh on account of the illicit relationship between the deceased Smt. Rati Bai and Pappu @ Roop Singh resulting in the social boycott of the accused and the marriage of the accused not getting solemnized on account of the said illicit relationship, are such circumstances which when taken together point the guilt of the accused.
(IX) In the bail application filed by the accused Anek Singh, it was stated that the accused has been falsely implicated on account of family enmity, partition of property coupled with the fact that the first informant wanted to usurp the share of the accused. However, allegations made against the first informant by the accused in his bail application are conspicuous by their absence in the statement of the accused under section 313 Cr.P.C. As such, the accused has made every possible allegation in proof of his innocence. The accused and the first informant are real brothers and there is no evidence to show the lodging of a false F.I.R.
(X) The Police Station is situate at a distance of five kilometer from the place of occurrence. The F.I.R. has been lodged at 11.00 AM whereas the timing of the occurrence is 9-00AM. As such, there is no delay in the lodging of the F.I.R. The promptness shown in the lodging of the F.I.R. goes to support the contents of the F.I.R.
(XI) The first informant Roop Singh has lodged the F.I.R. dated 06.06.2008. In the F.I.R., the timing of the occurrence has been shown as 9.00 AM. It has also been averred in the F.I.R. dated 06.06.2008 that the first informant has himself seen the accused in the company of the deceased Smt. Rati Bai. He also heard the conversation which took place between the two. The accused and the deceased have not been seen at any other place other than the one mentioned in the F.I.R. The place where the accused and the deceased were last seen is the same place from where the dead body of the deceased was found. The first informant P.W.-1, Roop Singh, in his testimony has also stated the events preceding the assault on the deceased, which is substantive evidence and points at the guilt of the accucsed.
(XII) P.W.-6, Dr. Amit Chaturvedi is the Doctor, who conducted the autopsy on the body of the deceased and prepared the post-mortem report. The Doctor has found two injuries on the body of the deceased. The first injury is on the forehead, which is a crush injury and cavity deep and the brain matter had come out. On account of this injury, the eye has also been crushed and, both jaws along with right frontal temporal bone and parietal bone have broken. The second injury is on the face having contusions with the bone of the jaw broken. The left eye was found to be missing. In the F.I.R. (Ext. Ka.-1), there is a clear recital regarding the assault on the deceased by the accused by throwing a stone on account of which blood started to flow. As such the anti-mortem injuries found on the body of the deceased stand corroborated from the recital contained in the F.I.R. (Ext. Ka.-1) and the oral testimony of Dr. Amit Chaturvedi as the Doctor has clearly opined that the injuries found on the body of the deceased could have been caused by the blow of a heavy stone. As such, it is established that the death of the deceased occurred on account of the stone having been thrown at the deceased. P.W.-8, Ram Babu Singh has stated that the stone weighed approximately 10Kg. and was sufficiently big in size. According to the prosecution, the occurrence took place at 9.00 AM. In the opinion of the Doctor, who conducted the autopsy on the body of the deceased on 07.06.2008 at 4.00PM, the death of the deceased occurred 30 to 36 hours before. As such, the medical opinion also confirmed the happening of the occurrence as mentioned in the F.I.R. In the panchyatnama/inquest of the deceased also the anti-mortem injuries have been mentioned which are similar to the injuries noted by the Doctor in the post-mortem report.
(XIII) On account of the illicit relationship of the deceased Smt. Rati Bai with Pappu @ Phool Singh, the accused and his younger brother had been socially boycotted and the accused also felt insulted. As such, the anger and anguish on the part of the accused against his own mother Smt. Rati Bai is quite evident.
(XIV) It has come in prosecution evidence that the deceased was residing with the accused Anek Singh. She eloped alongwith Papput @ Phool Singh to Indore and even after return from Indore she resided with the accused. On account of the aforesaid incident, the sons, i.e., the first informant and the accused had been socially boycotted and also faced insult in the society. However, once it is established that the deceased was residing with the accused then the burden is upon the accused himself to explain the death of the deceased. However, no explanation has come forward in the statement of the accused as recorded under Section 313 Cr.P.C. The false implication stated in the statement under Section 313 Cr.P.C. is not worth being relied upon.
31. On the strength of the circumstances as detailed herein above, and its examination in the light of evidence on the record and the circumstances leading to the death of the deceased Smt. Rati Bai, the Court below concluded that when all the aforesaid circumstances are analyzed, they form a chain of event with a link and this link in the chain of events point to the guilt of the accused with reasonable definiteness. The circumstances are in-proximity to the time and situation of the criminality alleged.
32. The chain of events and the link between them was formed according to the Court below by the following basic facts/circumstances:
a) The deceased Rati Bai was last seen in the company of the accused Anek Singh.
b) The hearing of the conversation which took place in between the deceased Smt. Rati Bai and the accused Anek Singh.
c) The first informant Roop Singh is the real younger brother of the accused and there is no enmity between the two.
d) The promptness shown in the lodging of the F.I.R.
e) The similarity in the anti-mortem injuries found on the body of the deceased and the seat of injuries stated in the F.I.R. are similar.
f) There is clear motive on the part of the accused to commit the crime.
g) The anger and anguish of the accused on account of illicit relationship of the deceased Smt. Rati Bai with Pappu @ Phool Singh is well established.
h) On account of the aforesaid illicit relationship, the accused and his younger brother were socially out caste and the marriage of the accused was also not getting solemnized.
33. The court below disbelieved the plea urged on behalf of the defence regarding the false implication of the accused-appellant on account of conspiracy. The defence put forward by the accused-appellant was not accepted by the court below as except for a bald statement in reply to Question No.8 of the statement under Section 313 Cr.P.C., no evidence oral or documentary was adduced by the accused-appellant to establish the plea so raised. Consequently, the only version before the Court was the prosecution version which the Court found to be fully established. All the arguments raised by the accused-appellant before the court below in proof of his innocence were found to be insufficent to dislodge the prosecution case. The circumstantial evidence duly established the guilt of the accused. The motive on the part of the accused to commit the crime was duly established. Accordingly, the court below held that the prosecution case is proved beyond doubt on the basis of circumstantial evidence. The motive behind the occurrence, the chain of events, the link in the chain of events and also that the circumstances are in proximity to the time and situation having been fully established, the test required to be proved in the case of circumstantial evidence stood proved. There was no other hypothesis much-less a reasonable hypothesis to doubt the prosecution case. Accordingly the court below under the impugned judgement and order dated 19.02.2011/21.02.2011 convicted the accused-appellant under Section 302 I.P.C. and consequently sentenced him to life imprisonment alongwith a fine of Rs. 10, 000/-. In default to pay the fine, the accused-appellant is to further undergo imprisonment of one year. Thus feeling aggrieved by the impugned judgement/order dated 19.02.2011/21.02.2011, the accused-appellant has now approached this Court by means of the present criminal appeal.
34. Learned counsel for the appellant, in challenge to the impugned judgement/order has strongly urged that the case in hand was initially conducted by the I.O. as a case based upon direct evidence. However, the prosecution witnesses of fact did not support the prosecution case in the trial and were therefore declared hostile. None of the prosecution witnesses of fact were contradicted with their previous statements in terms of Section 145/153 of the Indian Evidence Act, 1872 to prove to the contrary. Consequently, there was no evidence to prove the commission of crime by the accused-appellant. On the aforesaid factual premise, it is thus urged by the learned counsel for the appellant that the court below erred in law in trying the case as one based upon circumstantial evidence.
35. Extending his challenge to the impugned judgement and order, learned counsel for the appellant next contends that in the case in hand the test laid down by the Apex Court in the case of Sharad Birdhichand Sarda (supra) for establishing a case based upon circumstantial evidence, has not been satisfied and therefore, the conclusion drawn by the court below that upon examination of the prosecution case as one based upon circumstantial evidence is fully established is patently erroneous and therefore, the impugned judgement is liable to be set aside by this Court.
36. It is next urged that the deceased is a physically handicapped person and on account of the enmity existing in the village the accused-appellant has been falsely implicated. In reference to the physical condition of the accused-appellant, learned counsel for the appellant submits that considering the surrounding circumstances of the case, i.e., the accused is the son of the deceased, the accused is physically handicapped, the deceased is the mother of the accused, the accused and the deceased were living together, it is purely hypothetical to suggest that the present appellant shall commit the murder of his own mother particularly when he himself is a physically disabled person.
37. It is lastly submitted that the case in hand is covered by Section 304 Part-1 I.P.C. From the material on the record, it is established that there is no pre-meditated mind or a calculated mens rea to commit the crime. There is no previous enmity between the deceased and the accused nor there is any such evidence to establish any such previous act on the part of the deceased on account of which, the accused would like to revenge.
38. The test to be applied in a case based on circumstantial evidence has been laid down in the celebrated case of Sharad Birdhichand Sarda vs State Of Maharashtra reported in 1984 SCC (4) 116, wherein the following has been observed in paragraphs 143 to 145:-
" 143. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4,5,6,8,9,11,12,13,16, and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code 1973 they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Pradesh this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal procedure code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 of the old Code (corresponding to Section 313 of the Criminal Procedure Code 1973), the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra this Court held thus:
"The fact that the appellant was said to be absconding not having been put to him under section 342, Criminal Procedure Code, could not be used against him."
144. To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat, where the following observation were made:
"In the first place, he stated that on the personal search of the appellant, a chadi was found which was blood stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant.':
145. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decision of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration."
39. Thereafter the Court in paragraph 151 of the judgement has observed that the prosecution has to stand on its own legs in the following words:
"151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court."
40. Lastly, the Court has considered the issue regarding the use of a false explanation or false plea taken by the accused as an additional link to the chain of circumstantial evidence. The Court thus laid down the essential conditions, which must be satisfied in that regard. The following has been observed in paragraphs 159 and 160 of the judgement:-
"159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.
(2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation.
160. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal's case where this Court observed thus:
"Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused."
41. Accordingly, the court below was under a legal obligation to judge the case in hand in the light of the principles enunciated by the Apex Court in the above mentioned case. Thus, the motive behind the occurrence, the chain of events leading to the occurrence point to the guilt of the accused with reasonable definiteness or not, the link in the chain of events, the proximity of the circumstances to the time and situation were evaluated by the court below to judge the prosecution case and to find out whether there could be no hypothesis except the one pleaded by the prosecution.
42. The submissions urged by the learned counsel for the appellant appear to be attractive at the first flush but on deeper scrutiny they are devoid of any substance. The testimony of a witness, who has been declared hostile will not be completely wiped out but shall be read upto that stage till it supports the prosecution case. Therefore, the testimony of the prosecution witnesses, who have been declared hostile was not liable to be discarded outright but could be read upto that stage till it supported the prosecution version of the occurrence.
43. On the hostility of the witnesses, the trial court concluded that they had been won over and consequently, they were not worth believing to the extent they had turned hostile, but the date time and place of incidence as well as the manner of occurrence stood proved which could not be dislodged by the defence. Resultantly the only conclusion that could be arrived at was the involvement of the accused, the probability whereof was eminent looking to the cause of death due to crush injury on the head and near proximity of the accused residing under the same roof, with the deceased.
44. Mr. Arunendra Kumar Singh, learned A.G.A. by placing reliance upon a Supreme Court judgement stated that the hostility of witnesses is nothing else but a clear case which has been described by the Apex Court as a "compromise culture". He thus contents that the prosecution witnesses PW-1, P.W.2, P.W.3 , P.W.4 and P.W.7 have turned hostile either on some inducement or otherwise which may have taken the shape and form of such methods which can be gathered from the consequences of their hostility. He submits that in such a situation that part of the statement of the witnesses, who have turned hostile, and which establishes the factum of the death of the deceased can not be over-looked. The same being substantive evidence, which corroborates the other evidence existing on record including that of the formal witnesses, is sufficient to construe that the prosecution has discharged its initial burden and the onus stands shifted on the defence that has not come forward with any explanation as to how the deceased met her death.
45. The issue, which thus arises for determination is, if in case, the death of the deceased Smt. Rati Bai is homicidal then whether the appellant is involved in the commission of such offence or not. Thus, the statement of the witnesses need to be examined with circumspection particularly if they have turned hostile. As already pointed out herein above, the hostility of witnesses are not to be discarded in their entirety subject to the caution as given in the case of Govindaraju @ Govinda Vs. State 2012 (4) SCC 722, Bhajju @ Karan Singh Vs. State of M.P. 2012 (4) SCC 327 and Veer Singh & Others Vs. State of U.P. 2014 (2) SCC 455.
46. Another equally important issue, which needs examination is the prosecution witnesses of fact turning hostile. The issue becomes more complex when the relatives of the deceased whether very closely related or distantly related depose against the interest of the prosecution on account of inducement or otherwise. The genesis of induced hostility, which has now come to be described by the Apex Court as compromised culture was aptly considered in the case of Ramesh Vs. State of Haryana 2017 (1) SCC 529. Paragraph nos. 39 to 49 of the aforesaid judgment are relevant, which are reproduced herein below:-
"39. We find that it is becoming a common phenomenon, almost a regular feature, that in criminal cases witnesses turn hostile. There could be various reasons for this behaviour or attitude of the witnesses. It is possible that when the statements of such witnesses were recorded Under Section 161 of the Code of Criminal Procedure, 1973 by the police during investigation, the Investigating Officer forced them to make such statements and, therefore, they resiled therefrom while deposing in the Court and justifiably so. However, this is no longer the reason in most of the cases. This trend of witnesses turning hostile is due to various other factors. It may be fear of deposing against the accused/delinquent or political pressure or pressure of other family members or other such sociological factors. It is also possible that witnesses are corrupted with monetary considerations.
40. In some of the judgments in past few years, this Court has commented upon such peculiar behaviour of witnesses turning hostile and we would like to quote from few such judgments. In Krishna Mochi v. State of Bihar(2002) 6 SCC 81, this Court observed as under:
31. It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power.
41. Likewise, in Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374, this Court highlighted the problem with following observations:
40. Witnesses, as Bentham said, are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the court on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface. Broader public and social interest require that the victims of the crime who are not ordinarily parties to prosecution and the interests of the State representing by their presenting agencies do not suffer... There comes the need for protecting the witnesses. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that the ultimate truth presented before the Court and justice triumphs and that the trial is not reduced to mockery.
41. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the Rule of law. There cannot be any deviation from this requirement because of any extraneous factors like, caste, creed, religion, political belief or ideology. Every State is supposed to know these fundamental requirements and this needs no retaliation. We can only say this with regard to the criticism levelled against the State of Gujarat. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the "TADA Act") have taken note of the reluctance shown by witnesses to depose against people with muscle power, money power or political power which has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies.
42. Likewise, in Sakshi v. Union of India (2004) 5 SCC 518, the menace of witnesses turning hostile was again described in the following words:
32. The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross-examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross-examination are given in writing to the Presiding Officer of the Court, who may put the same to the victim or witnesses in a language which is not embarrassing. There can hardly be any objection to the other suggestion given by the Petitioner that whenever a child or victim of rape is required to give testimony, sufficient breaks should be given as and when required. The provisions of Sub-section (2) of Section 327 Code of Criminal Procedure should also apply in inquiry or trial of offences Under Section 354 and 377 Indian Penal Code."
43. In State v. Sanjeev Nanda (2012) 8 SCC 450, the Court felt constrained in reiterating the growing disturbing trend:
99. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding people's faith in the system.
100. This Court in State of U.P. v. Ramesh Prasad Mishra and Anr. 1996 (10) SCC 360 held that it is equally settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v. Superintendent of Police AIR 2004 (3) SCC 767, this Court held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty.
101. We cannot, however, close our eyes to the disturbing fact in the instant case where even the injured witness, who was present on the spot, turned hostile. This Court in Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 and in Zahira Habibullah Shaikh v. State of Gujarat 2006 SCC 374, had highlighted the glaring defects in the system like non-recording of the statements correctly by the police and the retraction of the statements by the prosecution witness due to intimidation, inducement and other methods of manipulation. Courts, however, cannot shut their eyes to the reality. If a witness becomes hostile to subvert the judicial process, the Courts shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 of the Indian Penal Code imposes punishment for giving false evidence but is seldom invoked.
44. On the analysis of various cases, following reasons can be discerned which make witnesses retracting their statements before the Court and turning hostile:
(i) Threat/intimidation.
(ii) Inducement by various means.
(iii) Use of muscle and money power by the accused.
(iv) Use of Stock Witnesses.
(v) Protracted Trials.
(vi) Hassles faced by the witnesses during investigation and trial.
(vii) Non-existence of any clear-cut legislation to check hostility of witness.
45. Threat and intimidation has been one of the major causes for the hostility of witnesses. Bentham said: "witnesses are the eyes and ears of justice". When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is for this reason there has been a lot of discussion on witness protection and from various quarters demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. A stern and emphatic message to this effect was given in Zahira Habibullah's case as well.
46. Justifying the measures to be taken for witness protection to enable the witnesses to depose truthfully and without fear, Justice Malimath Committee Report on Reforms of Criminal Justice System, 2003 has remarked as under:
11.3 Another major problem is about safety of witnesses and their family members who face danger at different stages. They are often threatened and the seriousness of the threat depends upon the type of the case and the background of the accused and his family. Many times crucial witnesses are threatened or injured prior to their testifying in the court. If the witness is still not amenable he may even be murdered. In such situations the witness will not come forward to give evidence unless he is assured of protection or is guaranteed anonymity of some form of physical disguise...Time has come for a comprehensive law being enacted for protection of the witness and members of his family.
47. Almost to similar effect are the observations of Law Commission of India in its 198th Report , as can be seen from the following discussion therein:
"The reason is not far to seek. In the case of victims of terrorism and sexual offences against women and juveniles, we are dealing with a Section of society consisting of very vulnerable people, be they victims or witnesses. The victims and witnesses are under fear of or danger to their lives or lives of their relations or to their property. It is obvious that in the case of serious offences under the Indian Penal code, 1860 and other special enactments, some of which we have referred to above, there are bound to be absolutely similar situations for victims and witnesses. While in the case of certain offences under special statutes such fear or danger to victims and witnesses may be more common and pronounced, in the case of victims and witnesses involved or concerned with some serious offences, fear may be no less important. Obviously, if the trial in the case of special offences is to be fair both to the accused as well as to the victims/witnesses, then there is no reason as to why it should not be equally fair in the case of other general offences of serious nature falling under the Indian Penal Code, 1860. It is the fear or danger or rather the likelihood thereof that is common to both cases. That is why several general statutes in other countries provide for victim and witness protection."
48. Apart from the above, another significant reason for witnesses turning hostile may be what is described as 'culture of compromise'. Commenting upon such culture in rape trials, Pratiksha Bakshi has highlighted this problem in the following manner:
"During the trial, compromise acts as a tool in the hands of defence lawyers and the accused to pressurise complainants and victims to change their testimonies in a courtroom. Let us turn to a recent case from Agra wherein a young Dalit woman was gang-raped and the rapist let off on bail. The accused threatened to rape the victim again if she did not compromise. Nearly a year after she was raped, she committed suicide. While we find that the judgment records that the victim committed suicide following the pressure to compromise, the judgment does not criminalise the pressure to compromise as criminal intimidation of the victim and her family. The normalising function of the socio-legal category of compromise converts terror into a bargain in a context where there is no witness protection programme. This often accounts for why prosecution witnesses routinely turn hostile by the time the case comes on trial, if the victim does not lose the will to live.
In other words, I have shown how legality is actually perceived as disruptive of sociality; in this instance, a sociality that is marked by caste based patriarchies, such that compromise is actively perceived, to put it in the words of a woman judge of a district court, as a mechanism for 'restoring social relations in society'."
49. In this regard, two articles by Daniela Berti delve into a sociological analysis of hostile witnesses, noting how village compromises (and possibly peer pressure) are a reason for witnesses turning hostile. In one of his articles, he writes:
"For reasons that cannot be explained here, even the people who initiate a legal case may change their minds later on and pursue non-official forms of compromise or adjustment. Ethnographic observations of the cases that do make it to the criminal courtroom thus provide insight into the kinds of tensions that arise between local society and the state judicial administration. These tensions are particularly palpable when witnesses deny before the judge what they allegedly said to the police during preliminary investigations. At this very moment they often become hostile. Here I must point out that the problem of what in common law terminology is called "hostile witnesses" is, in fact, general in India and has provoked many a reaction from judges and politicians, as well as countless debates in newspaper editorials. Although this problem assumes particular relevance at high-profile, well-publicized trials, where witnesses may be politically pressured or bribed, it is a recurring everyday situation with which judges and prosecutors of any small district town are routinely faced. In many such cases, the hostile behavior results from various dynamics that interfere with the trial's outcome-village or family solidarity, the sharing of the same illegal activity for which the accused has been incriminated (as in case of cannabis cultivation), political interests, family pressures, various forms of economic compensation, and so forth. Sometimes the witness becomes "hostile" simply because police records of his or her earlier testimony are plainly wrong.
Judges themselves are well aware that the police do write false statements for the purpose of strengthening their cases. Though well known in judicial milieus, the dynamics just described have not yet been studied as they unfold over the course of a trial. My research suggests, however, that the witness's withdrawal from his or her previous statement is a crucial moment in the trial, one that clearly encapsulates the tensions arising between those involved in a trial and the court machinery itself.
"In my fieldwork experiences, witnesses become "hostile" not only when they are directly implicated in a case filed by the police, but also when they are on the side of the Plaintiff's party. During the often rather long period that elapses between the police investigation and the trial itself, I often observed, the party who has lodged the complaint (and who becomes the main witness) can irreparably compromise the case with the other party by means of compensation, threat or blackmail."
47. Applying the said principles we are convinced that the prosecution witnesses PW-1, P.W.2, P.W.3, P.W.4 and PW-7 did reflect overgenorisity towards the accused by virtually crippling the prosecution and may have been overcome by factors that do not find support from any direct evidence, but their conduct is not justifiable, even when P.W.2, P.W.3 P.W.4 and P.W.7 who are supposed to be an independent witnesses have extended a helping hand to the accused. Even though there is no clinching direct evidence, but applying the principle of prudence in cases of circumstantial evidence, the demeanour of the statements of the abovementioned witnesses compel us to draw an inference that the trial court did not commit any error in concluding that they might have been won over.
48. We find that the court below out of abundant caution tried the case as one based upon circumstantial evidence. The test laid down by the Apex Court in the locus classicus regarding the trial of a case based upon circumstantial evidence, namely, Sharad Birdhichand Sarda's case (supra) was fully satisfied. Learned counsel for the appellant could not point out any such omission or perversity in the finding in the impugned judgement in the light of observation made by the Apex Court in paragraph 153 of the aforesaid judgment. We have ourselves scrutinized the evidence on the record and the findings recorded under the impugned judgement to judge the correctness of the aforesaid submission raised by the learned counsel for the appellant. However, we could not find any error in the findings recorded by the court below that the prosecution has proved its case beyond reasonable doubt which does not leave room for any other hypothesis except that the accused is guilty.
49. A perusal of the impugned judgement will go to show that the court below has itself observed that it is true that accused is a physically handicapped person but he is not so weak or feeble that he could not have committed the crime. Criminal trials are not decided on passion or compassion but on the weighment of the evidence on the record. The court below upon due consideration and evaluation of the evidence has rightly concluded that the accused-appellant is guilty of the offence alleged to have been committed by him. The finding so recorded stands substantiated by the proved recovery of the stone that was used in the commission of the crime, the broken bangles of the deceased recovered from the place of occurrence, the recovery of earth mixed with blood from the place of occurrence, the proof of the written report submitted by the first informant as Ext. Ka.-1, and the consequential F.I.R. Ext. Ka.-2, and the attending circumstances which are all part of the same transaction, as such liable to be considered under Section 7 of the Indian Evidence Act. The court below thus found the prosecution case to be fully established. Consequently, we are of the view that Smt. Rati died as a result of the injuries received by her on account of the appellant assaulting her by throwing a heavy stone on her head.
50. Thus from the sum total of the discussions made above we do not find any illegality in the conclusion drawn by the trial court that the accused-appellant is guilty of committing the murder of Smt. Rati Bai, i.e., his own mother.
51. However, the question which arises for determination is whether the case in hand is a case of culpable homicide amounting to murder (punishable under Section 302 I.P.C) or culpable homicide not amounting to murder (punishable under Section 304 I.P.C.).
52. The prosecution case from the beginning is a case of sudden act. There is nothing on the record to show that there was any mens rea on the part of the present accused-appellant to commit the alleged crime nor there was any such circumstance to establish the existence of a calculated mens rea to take revenge of any such act committed by the deceased. In fact it has come in evidence that both the deceased and the appellant were living together in one house. The informant was living separately.
53. The law takes care of such a situation. Section 300 IPC lays down the exceptions to Section 299 IPC which deals with culpable homicide not amounting to murder. Any act done upon sudden and grave provocation is the 4th exception of Section 300 IPC. It would be worthwhile to refer to the judgment of the Supreme Court in the case of Surain Singh Vs. State of Punjab reported in 2017 (5) SCC 796, wherein paragraphs 13 and 14 explain the law relating to the 4th exception. The same are reproduced below:-
13. Exception 4 to Section 300 of the Indian Penal Code applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The fourth exception to Section 300 Indian Penal Code covers acts done in a sudden fight. The said Exception deals with a case of provocation not covered by the first exception, after which its place would have been more appropriate.
The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of selfcontrol, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may haveoriginated, yet the subsequent conduct of both partiesputs them in respect of guilt upon an equal footing. A"sudden fight" implies mutual provocation and blows oneach side. The homicide committed is then clearly nottraceable to unilateral provocation, nor could in suchcases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter.
14. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 Indian Penal Code is not defined in Indian Penal Code. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general Rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".
54. In the present case verbal altercation took place between the mother and son where the son tried to stop his mother from leaving the village with Pappu @ Phool Singh. The place of verbal altercation is at the outskirts of the village, the appellant was not armed with any weapon nor was waiting for his mother with a heavy stone in his hands to assault her. There was no mens rea or premeditation to commit the crime. But for the coincidence of meeting the mother and seeing her in the company of Pappu @ Phool Singh that the son (appellant) got infuriated, tried to stop his mother, she refused to accept his request, the son lost balance of his mind and in the fit of rage he pushed his mother to the ground and picked up a stone lying there and threw it on his mother. In the light of the above, we are of the view that the case in hand clearly falls within the exception as noted herein above.
55. The next question for determination would be as to whether the offence would fall under Part-1 or Part-2 of Section 304 I.P.C. Considering the fact that the stone was heavy and it was thrown on the head of the deceased and in normal course would have caused such bodily injury likely to cause death, we are of the view that the offence would fall under Part-1 of Section 304 I.P.C.
56. Accordingly, we hold that the appellant-Anek Singh was guilty of culpable homicide not amounting to murder punishable under Section 304 Part-1 I.P.C. The conviction and sentence recorded by the trial court under Section 302 I.P.C. is set aside. We accordingly convict him under Section 304 Part-1 I.P.C.
57. Considering the facts and circumstances of the case, we award punishment of 10 years rigorous imprisonment alongwith fine of Rs.5000/- to the accused-appellant. In case of default in deposit of fine of Rs. 5,000/-, the appellant shall further undergo six months rigorous imprisonment. The appellant is in jail. He shall serve out the sentence so awarded if not already completed and shall thereafter be released.
58. The criminal appeal is accordingly partly allowed.
Order Date :- 27.2.2019/YK