Allahabad High Court
Anil Kashyap vs State Of U.P. on 30 September, 2022
Bench: Ramesh Sinha, Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Reserved on 06.08.2022 Delivered on 30.09.2022
Court No. - 1
Case :- CRIMINAL APPEAL No. - 366 of 2013
Appellant :- Anil Kashyap
Respondent :- State of U.P.
Counsel for Appellant :- Prashant Gupta,Anil Kumar Sharma,Dinesh
Kr. Sharma,Farida Jalal,M B Tiwari,Sunil Kumar Singh
Counsel for Respondent :- Govt. Advocate
Hon'ble Ramesh Sinha,J.
Hon'ble Shamim Ahmed,J.
(Delivered by Hon'ble Shamim Ahmed,J.) INTRODUCTION
1. Accused, Anil Kashyap, was tried by the Additional Sessions Judge, Court No.16, Lucknow, in Sessions Trial No. 809 of 2007, State Vs. Anil Kumar Kashyap, arising out of Case Crime No. 241 of 2007, under Sections 376 and 302 Indian Penal Code (IPC) Police Station Kakori, District Lucknow. The appellant was also tried in Sessions Trial No. 810 of 2007, State Vs. Anil Kumar Kashyap, arising out of case crime no. 242 of 2007 under section 4/25 Arms Act, Police Station-Kakori, District Lucknow. Both these Sessions Trials were clubbed together and decided by a common judgment and order dated 11.01.2013 passed by the Additional Sessions Judge, Court No.16, Lucknow.
2. Vide judgment and order dated 11.01.2013, the Additional Sessions Judge, Court No.16, Lucknow, convicted and sentenced the accused-appellant in the manner as stated hereinbelow :-
i. Under section 376 (2) (cha) IPC to undergo 14 years rigorous imprisonment with fine of Rs. 25,000/- In default of fine to undergo additional one year rigorous imprisonment.
ii. Under section 302 IPC to undergo life imprisonment.
iii. Under section 4 read with section 25 of Arms Act to undergo three months rigorous imprisonment with fine of 1000/-. In default of fine to undergo additional fifteen days rigorous imprisonment;
All the sentences were directed to run concurrently.
3. In view of the judgments of the Apex Court in Bhupinder Sharma vs. State of Himachal Pradesh : (2003) 8 SCC 551 and Nipun Saxena and another vs. Union of India and others : 2018 SCC Online 2772, the name of the victim is not being disclosed. She is transcribed as victim 'x' in the judgment hereinafter.
FACTUAL MATRIX Shortly stated, the prosecution case runs as under :-
Informant P.W.1-Nand Lal son of Lalaram resident of Hata Raheem Vasit Town Kakori, Police Station Kakori, District Lucknow (father of the victim ''X'/deceased) got the written scribed from one Sushil Kumar, who after scribing it read it over to him. Thereafter, the informant submitted a written report (Ext.Ka-1) to Station House officer, Police Station Kakori, District Lucknow stating therein that on 3.7.2007 at about 6.00 A.M. victim ''x' aged about 10 years had gone to mango orchard alongwith her elder brother Rajesh for collecting mango. Rajesh after eating some mango came back to his house leaving the victim ''x' there. In the meantime, accused appellant, who is his neighbour caught hold the victim ''x' and committed rape upon her in the mango orchard. She raised alarm but for stopping her voice, the accused-appellant slitted (cut) her neck with knife which Chhotakke son of Buddhilal, Sajiwan Lal son of Bhagwandeen and Radhey Shyam son of Kalika, residents of town Kakori who were working near mango orchard exhorting reached there then the accused appellant ran away leaving the victim ''x', who died at the spot. The blood was oozing from her neck and private part. The news of the said incident spread in Kakori town and the people started raising slogan for arresting the accused, as a result thereof, a panic was created in the general public, which jammed the traffic. However, after hectic efforts, the situation was controlled.
4. On the basis of written report (Ext.Ka-1) Chick FIR (Ext. Ka-3), was registered against the convict/appellant Anil Kashyap on 3.7.2007 at 10.05 O'clock as Case Crime No. 241 of 2007, under Sections 376 and 302 I.P.C. at Police Station Kakori, District Lucknow and Chick FIR (Ext. Ka-6) was registered against the convict/appellant Anil Kashyap as case crime no. 242 of 2007 under section 4/25 of Arms Act, at Police Station Kakori, District Lucknow. The distance of Police Station Kakori from the place of incident is three Kms. After the registration of the FIR, the entry in the General Diary (Ext Ka-5) was made.
5. After lodging of the FIR, the investigation of the case was conducted by Investigating Officer, Mahendra Pal Singh (P.W.5) who prepared inquest report of the dead body of the deceased (Ext. Ka-2) and sent the corpse of the deceased after sealing it for autopsy to KGMC, Lucknow on 3.7.2007 by Constable No. 3198 Anand Chaubey and Constable No. 297 Jang Bahadur.
6. The postmortem examination report (Ext. Ka-13) of deceased was conducted by Dr. Ram Kishore Gupta (P.W.6) on 3.7.2007 at 10.00 P.M. in KGMU, Lucknow, who found the following injuries on the person of victim ''x':-
Ante mortem Injuries:-
1. Multiple abrasion in area 8.0 cm x 5.0 cm present around the mouth and chin size varying from 0.5 cm x 0.2 cm to 1.0 cm x 0.5 cm.
2. Incised wound 2.0 cm x 1.0 cm x muscle deep present in outer aspect of left side neck 9.0 cm below lobule of left ear.
3 Incised wound 10.0 cm x 6.0 cm x vertebrae deep present on front and both side neck 4.0 cm above sternal notch.
4 Multiple incised wound of area 7.0 cm x 3.0 cm present on front and Rt side neck 2.0 cm below injury no. (3) size varying front 3.0 cm x 0.5 x skin deep to 5.0 cm x 0.5 cm x skin deep.
On opening injury:-
Ecchymosis present underneath all the injuries mentioned above margin of all injuries except injury no (1) are sharped, clear cut and well defined.
Minor and major vessel of both side of neck found cut through and through. Trachea Oesophagus and Larynx found cut through and through at the throat.
7. The Doctor has opined that the deceased died due to shock and hemorrhage as a result of ante mortem injury as noted above. Further, the doctor after conducting the postmortem handed over the clothes of deceased, two vaginal smear slide two vaginal swab, two test tube and postmortem report (in original) in sealed cover to the police. The police sent the same to the Forensic Science Laboratory, U.P. Lucknow (Ext.Ka-17) through Chief Judicial Magistrate, Lucknow.
8. Here, it would be relevant to point out that investigation of the case relating to case crime no. 241 of 2007 under sections 376 and 302 IPC was entrusted to Sub Inspector Indrajeet Singh (P.W.7) on 3.7.2007 whereas the investigation of case crime no. 242 of 2007 under section 4/25 Arms Act was started by Station House Officer Indrajeet Singh on 4.7.2007.
9. The investigating officer also prepared documents viz written report (Ext.Ka-1), inquest report of deadbody of deceased (Ext. Ka-2), Chick FIR relating to case crime no. 241 of 2007 (Ext.Ka-3), Nakal Roznamcha kayami case rapat No.14 dated 3.7.2007 (Ext.Ka-4), Nakal Roznamcha rapt no.4 dated 4.7.2007 (Ext.Ka-5), Chick FIR relating to case crime no. 242 of 2007 under section 4/25 Arms Act (Ext.Ka-6), Chalan lash (Ext. Ka-7), photolash of corpse of deceased (Ext. Ka-8), sample seal of deadbody (Ext. Ka-9), a letter to Medical Officer, KGMU, Lucknow (Ext. Ka-10), recovery memo of blood stained of plain earth (Ext. Ka-11), recovery memo of accused and recovered knife (Ext. Ka-12), Post mortem report of corpse of deceased (Ext. Ka-13), site plan of place of alleged incident relating to case crime no. 241 of 2007 under sections 376,302 IPC (Ext.Ka-14), site plan of recovery of weapon (knife) on the pointing of the accused (Ext.Ka- 15), chargesheet under section 4/25 Arms Act (Ext. Ka-15/2), chargesheet under sections 376 and 302 IPC (Ext. Ka-16) and report dated 25.9.2007 of Forensic Science Laboratory, U.P. Lucknow (Ext. Ka-17).
10. After completion of investigation, chargesheets (Ext. Ka-15/2 and 16) were submitted against the accused appellant in both the cases i.e. for the offence punishable under sections 302,376 IPC and section 4/25 Arms Act.
11. After the receipt of the chargesheets, cognizance of the offence was taken by the Chief Judicial Magistrate, Lucknow, and the case was committed to the court of sessions for trial. The trial court framed the charges against the accused appellant for the offence under sections 302,376 (2) (cha) IPC and section 4/25 Arms Act to which he pleaded not guilty and claimed to be tried.
PROSECUTION EVIDENCE
12. To bring home the guilt of the accused appellant, the prosecution examined as many as eight witnesses, namely, Nand Lal (PW-1), informant (father of deceased), who supported the prosecution story. Sajiwan Lal (PW-2), eye-witness of alleged incident, also supported the prosecution story and Radhey Shyam (PW-3), was declared hostile during trial. S.I. Kamlesh Kumar (PW-4); proved the FIR (Ext. Ka-3) Mahendra Pal Singh Sub-Inspector (Retd,) (PW-5) proved written report (Ext. Ka-1), FIR (Ext. Ka-6 ) and Panchnama (Ext. Ka-2) and Dr. Ram Kishore Gupta (PW-6) who proved postmortem examination report (Ext. Ka-13)
13. The defence in order to prove its versions produced three witnesses, namely, Sunil, brother of accused appellant, (D.W.1), Vishram Prasad, father of the accused appellant (D.W.2) and Susmita, sister of accused appellant (D.W.3) .
14. After completion of the prosecution evidence, the statement of the accused appellant was recorded under section 313 Cr.P.C. He was confronted with the incriminating evidence adduced against him during the course of the trial , which he denied and pleaded innocence and stated that he has been falsely implicated. He specifically stated that to save the main culprit P.W.2 Sajiwan Lal gave false statement before the trial court.
15. The trial court after examining the evidence available on record believed the evidence of prosecution witnesses trustworthy and reliable, hence by means of the impugned judgment convicted and sentenced the accused appellant for the offence as stated hereinabove.
16. Hence this appeal at the instance of the convicted appellant.
17. For the sake of convenience, the testimonies which have been relied upon by the trial court are being referred hereinafter:-
18. Nandlal (P.W.1), who is informant and father of victim ''x' supported the version of FIR but in cross- examination he deposed that he did not witness the alleged incident. At the time of alleged incident, he was in his house. This witness stated that he was given the information about the incident by Sajiwan Lal (P.W.2) and Radhey Shyam (P.W.3). He further deposed that he got the report lodged on the basis of saying by some persons. It is incorrect to say that he had got the false report lodged due to enmity.
19. Sajiwan Lal (P.W.2) in his testimony has deposed that the incident occurred at about 7.30 AM on 3.7.2007. At that time Radhey Shyam and Chhotakke were working with him in another mango orchard near the place of alleged incident. Chhotakke son of Putti Lal and Radhey Shyam son of Chandrika and Pachcha were sitting at some little distance from him. This witness further deposed that they heard the voice of screaming, upon which they saw here and there, and saw the accused-appellant in other mango orchard i.e. the place of alleged incident. They witnessed him that he was cutting the neck of victim ''x' with knife and she was screaming. When they exhorted the accused appellant, he fled away brandishing the knife. Thereafter they reached near victim ''x'. and saw that she was sobbing and blood was oozing from her neck and legs.
20. Sajiwan Lal (P.W.2) further deposed that he himself intimated to the family members of the victim ''x' and also at the Chowki (Police out post) and thereafter to police station. Thereafter police personnel went with him to alleged place of incident where around two-three thousands people had assembled. This witness further deposed that he knew the accused appellant Anil Kashyap, who committed rape and murdered victim ''x' (aged about 10 years). Blood was oozing from her private part. The police prepared panchnama (Ext.ka-2) in his presence and at that time S/Sri Shiv Kumar, Saleem, Rampal and Rajjanlal were also present. He also proved that he put signature on the Panchnama.
21. In the cross-examination this witness deposed that the accused appellant was arrested on the day of incident from the village. He further deposed that the police had recorded his statement at police station/place of incident. He further deposed that the distance from the place of occurrence to place of mango orchard where he was working would be about 100-150 Mtr. He further deposed that he had seen the deceased, who was wearing brown colour underwear, white colour innerwear and red colour frock. During the course of cross-examination, this witness further deposed that he was working 10-12 days prior to alleged incident in the mango orchard but he could not tell the names of the persons of orchard adjacent to the mango orchard where incident took place.
22. P.W.3 Radhey Shyam deposed in his testimony that Informant Nandlal is his cousin brother (Maternal brother). He had not seen the accused appellant committing murder of victim 'x' and was not looking after the mango orchard at the time of alleged incident. Thus he was declared hostile. However, during the course of cross examination, this witness had deposed that it is true that when he had gone to place of occurrence, the process of sealing of the corpse was completed but denied that he had recorded his statement under section 161 Cr.P.C before the police. He further deposed that he knew the father of the accused appellant, namely, Vishram. It is incorrect to say that due to acquaintance with the father of the accused he is adducing false evidence to save the accused.
23. P.W. 4 S.I. Kamlesh Kumar has deposed in his testimony that on 3.7.2007 he was posted as Head Moharrir at Police Station Kakori. He scribed the FIR under sections 376 and 302 IPC (Ext Ka-3) and registered in nakal rapat no. 14 time 10.5 dated 3.7.2007 and prepared carbon copy thereof (Ext. Ka-4). He proved Exts. Ka-5 and Ext. Ka-6).
24. P.W.5 Mahendra Pal Singh, (since retired.) no. 442/58 deposed in his testimony before trial court that on 3.7.2007, he was posted as Inspector at Police Station Kakori Lucknow and in his presence, the case was registered. The investigation of the case was conducted by Station Officer-Indrajeet Singh. On the information, he alongwith S.O. Indrajeet and Senior Constable Satyadev and police-force of station reached the place of occurrence where they found the dead body of the victim. On spot family members of the deceased and people of adjacent area had assembled. S/Shri Shiv Kumar, Rampal, Saleem, Rajjanlal and Sajiwan Lal were made witnesses of Panchnama (Ext. Ka-2) and signatures of Panchs were also obtained. Thereafter the body of the deceased was sealed and sent to KGMU for postmortem examination. This witness proved the Papers relating to Panchayatnama as Chalan lash Photolash, Sample seal, report of C.M.O which are shown as Exts. K-8, Ka-9,Ka-10 respectively. He also proved collected blood stained earth and plain earth taken in the presence of witnesses and recovery memo (Ext. Ka-11).
25. Mahendra Pal Singh (P.W.5) further deposed in his testimony that on 4.7.2007 he alongwith Head Constable Satyadev Singh Constable Harilal and Constable Raj Kumar Pandey and S.O. Shri Indrajeet Singh proceeded on Jeep to arrest the accused appellant. On the information given by the Informer, the accused appellant was arrested from road at 00.45 AM which is 50 yard away from Chilauli village. On the interrogation made by Investigating Officer, the accused appellant accepted his guilt and said to give the knife used in the commission of crime. The knife which is alleged to be used in the commission of crime was recovered on his pointing out with the source of torch light from inside standing bushes behind the western side of Bones Store situate in Bag Samiti. The knife was sealed and a recovery memo was prepared, which was signed by S.O. Indrajeet Singh, witnesses Harilal, Raj Kumar and accused Anil Kumar. Thereafter the material as above and accused were brought to police station. This recovery memo (Ext. Ka-12) was also proved by this witness.
26. P.W. 6 Dr. Ram Kishore Gupta in his testimony deposed that on 3.7.2007 he was posted as Medical Officer in KGMC,Lucknow. The deadbody of the deceased in sealed cover alongwith ten papers was sent by the police of Police Station Kakori which was received in KGMC Mortuary, Lucknow, on the same day i.e. 3.7.2007 around 4.30 P.M. The deceased was identified by CP No. 3198 Anand Chaubey and CP 297 Jang Bahadur. This witness proved the post-mortem report and stated that the deceased died due to shock and hemorrhage as a result of ante mortem injury as noted above. He further deposed that the deceased died half day prior to alleged incident i.e. 3.7.2007. The injury in the vagina may be caused due to committing rape. The injury on the neck may be caused due to sharp knife. In cross- examination this witness deposed that there is no sign of injury found on the hands, feet, back and head. He further deposed that in the postmortem report there is no mention of earth. However, he was unable to tell that rape was committed by one person or more.
27. P.W.7 Indrajeet Singh (Investigating Officer) has deposed in his testimony that on 3.7.2007 he was posted as Station Officer at Police Station Kakori. He conducted investigation of case relating to crime no. 241 of 2007 under sections 376 and 302 IPC. He recorded the statement of Nandlal (informant),on his pointing out and inspected the place of occurrence and prepared site plan. He recorded the statements of witnesses of Krishna Pal and Suresh Kumar. He found the deceased naked on the place of incident . He collected blood stained earth and plain earth and thereafter sealed them. He prepared recovery memo thereof. He recorded the statements of the witnesses of recovery memo, namely, Shatrohan Pal and Sunil Kumar. He prepared site plan (Ext.Ka-14). The recovery memo of blood stained earth and plain earth (Ext. Ka-11) was got written by S.I. Mahendra Pal Singh. After reading it over he made signature thereon and obtained the signature of the witnesses. During trial, he proved the aforesaid documents.
28. This witness (P.W.7) further deposed that on 4.7.2007, he arrested the accused appellant and on his pointing out, blood stained knife from the western side of Bones Store in the standing bushes was recovered. He prepared recovery memo (Ext. Ka-12) regarding discovery of blood stained knife site plan (Ext. Ka-15) but in the site plan he has not mentioned that near Bones Store bushes were standing and proved it. He also proved the filing of the charge-sheet (Ext. Ka-16). However, in the cross examination he deposed that he did not show any bushes around Bones Store in the site plan from where alleged knife was recovered.
29. Prabhakar Tiwari (P.W.8) deposed in his testimony that on the date of incident i.e. 3.7.2007 he was posted as Head Constable. On 4.7.2007, he was entrusted the investigation of the case relating to case crime no. 242 of 2007 under section 4/25 Arms Act, on the direction of Station Officer. On the pointing out of accused he alongwith Station Officer-Indrajeet Singh inspected the place of occurrence on 7.7.2007 and prepared site plan (Ext Ka-14) and proved it. He shown in the site plan that near Bones Store bushes were standing. He submitted chargesheet no. 165 of 2007 in case crime no. 242 of 2007 under section 4/25 Arms Act (Ext.Ka-15) and proved it. In the cross examination, this witness deposed that there was no public witness to the recovery memo of discovered knife.
30. As averred the accused-appellant, in order to prove its defence he had examined Sunil, Vishram Prasad and Susmita as defence witnesses, which are being referred hereinafter.
31. Sunil (D.W.1), who is younger brother of accused- appellant deposed that on 3.7.2007 around 8.00 A.M., he had gone with his elder brother to work in the factory of Jardozi [Embroidery work] belonging to one Dilshad. He received information at about 8/1-2 A.M. in the factory that animal has scratched victim 'x' who was living behind his house. Due to pressure of work both could not have gone to the place of occurrence. On the same day at about 10.00 A.M., his younger sister came to the factory alongwith police. The police asked the names of both and brought accused Anil to police station for interrogation and implicated him in a false case.
32. In the cross examination, this defence witness deposed that his house was sabotaged by the family members of victim 'x' and some members of her family were demonstrating keeping the corpse of victim 'x' on Durgaganj crossing , due to which he could not go to his house from this path. Later on, he was taken into custody by the police and was kept at the police out-post for 2-3 nights and could not be permitted to meet his brother. He informed the police about robbing in his house and setting his house on fire and requested to prevent. One constable went to his house but returned without action.
33. Vishram Prasad (D.W.2) who is father of accused deposed in his testimony that on 2.7.2007, he had gone to the house of his daughter. On 3.7.2007 at about 11.00 AM when he came to his village, Kakori, he saw that there is crowd around his house and Sajiwan Lal, Chhotakke, Rampal and Dileep and some other persons are present there. His house was set on fire for which he had lodged an FIR under sections 395,436,427 and 506 IPC against Nandu, Sajiwan and others.
34. This witness further deposed that some villagers were talking that accused Anil Kashyap has wrongly been implicated in the case while he was working in 'Jardozi' [ Embroidery] factory. The wife and children of this witness have also told him that at the time of alleged incident, accused Anil Kashyap was present in his house and at about 8.00 A.M., he had gone to factory.
35. Susmita (D.W.3) aged about 15 years, (daughter of Vishram Prasad and sister of accused Anil Kashyap) deposed that her two brothers, namely, Anil Kashyap and Sunil had gone to Jardozi factory at 8.00 AM on 3.7.2007. At about 10.00 AM the police came to her house and asked how many members are there in the house. She told that her father had gone outside and her two brothers had gone to Jardozi factory. The police went to Jardozi factory for interrogation of both brothers. She also went to Jardozi factory alongwith police. Thereafter the police brought her brother Anil Kashyap to police station for interrogation.
36. In the cross examination, this witness deposed that she knew the victim 'x' who is her neighbour and friend. She does not know about her age. She used to go on some occasion to mango orchard alongwith victim 'x' for collecting mango but she had not gone to mango orchard alongwith victim 'x' on the date of incident. She further stated that her two brothers had gone to Jardozi factory at 8.00 A.M. on 3.7.2007 and she had gone to Jardozi factory at 10.00 A.M. on 3.7.2007 alongwith police where her both brothers were present.
37. Heard Shri Sunil Kumar Singh, learned counsel for the appellant , Shri Hari Shanker Bajpai, learned counsel for the State- respondent and perused the lower court record as well as impugned judgment and order dated 11.01.2013 passed by the Trial Court.
Submissions of the Appellant's Counsel
38. Learned counsel for the appellant has submitted that the accused appellant has been convicted and sentenced under sections 302,376 (2) (cha) I.P.C. and section 4/25 Arms Act without there being any concrete evidence against him and the findings of conviction recorded by the Trial Court are based on surmises and conjectures. As a matter of fact, it is a case of circumstantial evidence and without there being a complete chain of circumstances, the appellant has been convicted.
39. To substantiate the aforesaid submissions it has been argued by the learned counsel for the appellant that informant Nand Lal (P.W.1) had lodged the first information report against the accused appellant on a false story narrated by Sajiwan Lal (P.W.2 ) and Radhey Shyam (P.W.3) and further Radhey Shyam (P.W.3) has been declared hostile. The informant P.W.1 is neither an eye-witness nor a witness of any circumstance related to the alleged incident. Chhotakke, who is said to be the eye witness of the alleged incident has not been examined by the prosecution for the reasons best known to the prosecution. Being said to be an eye-witness of the incident, he ought to have been produced by the prosecution to prove its case beyond reasonable doubt. There are material contradictions and discrepancies in the testimonies of the prosecution witnesses.
40. Learned Counsel for the accused appellant has submitted that accused appellant had been seen coming out from mango orchard by P.W.2 Sajiwan Lal, P.W.3 Radhey Shyam (declared hostile) and Chhotakke (not examined) while during the cross-examination Sajiwan Lal (P.W.2) had stated that on the date of incident he was present in his mango orchard and on hearing screaming, he saw the accused appellant coming out from the near mango orchard and the accused-appellant fled away seeing them.
41. As regards, the recovery of the knife, learned counsel for the appellant has argued that there was no independent witness of the alleged recovery of blood stained knife allegedly made at the instance of the accused appellant and the recovery has been planted in order to frame the accused in the case. According to him, as a matter of fact none has witnessed the incident and the informant on the basis of story as narrated by Sajiwan Lal (P.W.2)and Radhey Shyam (P.W.3) lodged the FIR implicating the appellant.
42. It has been empathetically argued by the learned counsel for the appellant that as per the post-mortem report of the victim 'x' neither there was any abrasion nor contusion was found on the hands and legs nor any stain of semen was found in the vaginal smear of the deceased. As per the report of Forensic Science Laboratory, U.P. Lucknow, no spermatozoa and gonococci was found in vaginal swab, smear slide, Kurta, Baniyayin and under wear of the victim 'x', and further no blood was found in the plain earth and smear slide whereas if the prosecution witnesses have stated that blood was oozing from the neck and private part of the victim 'x' and the Investigating Officer had collected the blood stained earth from the place of incident, and as per the report of Forensic Science Laboratory blood was found in vaginal swab, Kurta, Baniyayin, underwear, blood stained earth with leaves and knife. Since the blood of victim 'x' had not been matched with the aforesaid articles, the aforesaid facts create doubt on the prosecution story as alleged by the prosecution.
43. Next argument of the learned Counsel for the appellant is that the trial court materially erred in not believing the testimonies of defence witnesses, who categorically stated that at the time of alleged incident the accused appellant was not present.
44. It has also been argued by the learned counsel for the appellant that cogent reasons have not been given by the learned trial court for not believing the testimonies of defence witnesses and further the appellant has specifically stated in his statement under Section 313 C.P.C that P.W. 3 Radhey Shyam has given false evidence to save the actual assailant.
45. Learned counsel for the appellant has also argued that the motive to commit murder of deceased victim 'x' was not proved by the prosecution but even then the trial court had convicted the accused appellant by mis-appreciation of evidence adduced by the prosecution. The accused appellant has been convicted and sentenced under sections 302 and 376 (2) (cha) IPC and section 4/25 Arms Act without having any evidence against him. The judgment of the trial court is based on surmises and conjectures.
Submission on behalf of State-respondent
46. Refuting the assertions of the appellant, learned counsel for the State-respondent submits that adequate evidence is available on record against the accused appellant which indicates the involvement of the accused/appellant in commission of the crime in question. It is pointed out that accused/appellant committed the rape of victim and cut her neck with knife. The deadbody and several articles were discovered at the place of incident and a blood stained knife which was used in the commission of crime was found at the pointing out of accused appellant. All these circumstances show the guilt of the accused/appellant in committing the murder of the deceased.
Finding by this Court
47. Having heard learned counsel for the parties and gone through the material brought on record, it is manifestly clear that the trial Court has convicted the accused/appellant only on the basis of ocular testimony of Sajiwan Lal (P.W.2) as well as recovery of blood stained knife made on the pointing out of accused/appellant.
48. It is important to mention that Radhey Shyam (P.W.3), who is said to be eye witness has been declared hostile as he had not supported the prosecution version. It is to be noted that Radhey Shyam (P.W.3) is the cousin of the Informant, who has lodged the FIR. It appears that initially seeing the brutal murder of his niece, he took a stand that he had witnessed the incident but later on when he came to his conscience, he did not support the prosecution story and stated in clear words that he had not seen the occurrence. Had he actually witnessed the accused committing the murder of his niece, then he would have definitely stood and would not allow the actual assailant to go escort free. Similarly, Chhotakke, who was working in the mango orchard alongwith Sajiwan Lal (P.W.2) and Radhey Shyam (P.W.3) has not been produced by the prosecution to support the prosecution version. No plausible explanation has been given for withholding Chhotakke, who was present at the site of the occurrence.
49. Now, we will scrutinize the evidence of Nand Lal (P.W.1), who is the informant and father of the deceased. First of all, it is relevant to point out that Nand Lal (P.W.1) was not present on the spot when the alleged incident took place and had lodged the FIR as per narration alleged to be given by the Radhey Shyam (P.W.3) and Sajiwan Lal (P.W.2). This witness has stated that on 3.7.2007 at about 6.00 AM, his daughter alongwith brother Rajesh had gone to the mango orchard to collect mango. The brother had come back after collecting the mango and the daughter was in the mango orchard. The news of the incident has spread in the village and hearing on the news, he reached at the spot and took the body to the Durgaganj crossing and thereafter gave dictation to one Sushil Kumar for lodging the FIR. In his cross-examination, this witness had admitted that he had not seen the occurrence and was at the house. He was told about the incident by Sajiwan Lal (P.W. 2) and Radhey Shyam (P.W.3).
50. A conjoint reading of the FIR and statement of Nand Lal (P.W.1) recorded before the court, shows that there is material contradiction in the FIR. As per narration of the incident given in the FIR, an impression is given that he had seen the incident and nowhere he has stated that he has come to know about the occurrence from Sajiwan Lal (P.W.2) and Radhey Shyam (P.W.3). In the FIR, he has stated that dead body of the victim ''x' is lying on the spot whereas in the cross-examination he had deposed that he came to know about the occurrence from Sajiwan Lal (P.W.2) and Radhey Shyam (P.W.3). Further, in the FIR it was stated that dead body of the deceased is lying on the spot whereas in his examination-in-chief, this witness had stated in clear words that he took the dead body to Durgaganj Crossing and thereafter dictated the report to one Sushil Kumar. He had also admitted that he had lodged the FIR as was told by the people. Moreover, from the language and tenor of the FIR, it can easily be inferred that the same was lodged after consultation and someone else had dictated the report. Moreover, the prosecution has not produced Sushil Kumar to establish the fact that he had written the report on the dictation of the informant. Therefore, the trial court has committed manifest error in not considering all these important facts while relying upon his testimony.
51. Sajiwan Lal (P.W.2) in his statement had deposed that he had given information about the incident at the house of informant and thereafter went to the police outpost and gave information and thereafter information was given from the police outpost to the police station. Thereafter the police had reached at the place of occurrence with the said witness. Now, again there are contradictions in the statements of Nand Lal (P.W.1) and Sajiwan Lal (P.W.2) as Nand Lal (P.W.1) had stated that he took the dead body to the Durgaganj Crossing whereas Sajiwan Lal (P.W.2) had stated that the dead body was lying on the spot and he reached at the spot alongwith police. Nowhere he had stated that while going to the police out post, police station or going back to the spot, Nand Lal (P.W.1) father of the deceased was also accompanying with him.
52. Radhey Shyam (P.W.3), who, as per prosecution version, was present near the site of occurrence alongwith Sajiwan Lal (P.W.2) in the mango orchard. Sajiwan Lal (P.W.2) had also stated in his cross-examination that he alongwith Radhey Shyam (P.W.3), Chhotakke and Pachcha were working in the mango orchard. However, Radhey Shyam (P.W.3) in his examination-in-chief stated that at the time of murder, he was not protecting the mango orchard in the morning and as such the prosecution requested for declaring him as hostile. It is important to point out here that this witness in his cross-examination gave altogether different story with regard to place where the dead body was lying. He stated that when he went to the spot the dead body was being sealed and the place where the dead body was lying is a leather store of dead animals.
53. Again there are major contradictions with regard to information to the police and lodging of the FIR. Sajiwan Lal (P.W.2) in his statement has stated that after the incident he informed at the house of the deceased, thereafter gave information to the police at the Police out post (Chowki) and thereafter the information was transmitted to the Police Station. In contrast, S.I. Kamlesh Kumar (P.W.4) who was posted as Head Moharrir at the police station Kakori at the relevant time had stated in his cross-examination that the complainant had come to lodge the FIR alongwith one person Krishna Pal of village Dasdoi. Inspite of the incident, no information was received prior to lodging of the FIR. Thus, it is clear that the learned Trial Court erred in believing the testimonies of Sajiwan Lal (P.W.2) and S.I. Kamlesh Kumar (P.W.4) though they have given altogether different version with regard to receiving of information of the alleged crime.
54. It is said that on 4.7.2007, the police party was searching the accused when an information was given by the Informer that accused Anil Kashyap is going from Kakori towards Mohan Road and when they reached near village Chilaluli, they found one person going on the road, who was intercepted and taken into custody at 00.45 AM. On interrogation, he admitted his guilt and said that he is ready to give the knife on reaching the place of occurrence. When they reached near the Bones Store, he brought the blood stained knife from an unkept place. S.I. Mahendra Pal Singh (P.W.5) has stated in his statement that Fard recovery was prepared on the spot and contains his signature as well as signature of accused and witness Harilal and Raj Kumar. In contrast, Sri Prabhakar Tiwari (P.W.8), who was Investigating Officer of Case Crime No.242/2007 under Section 4/25 Arms Act had deposed before the court that the investigation of this case was entrusted to him on 4.7.2007 and sealed knife was deposited in the police station. He had further deposed that in the Fard Memo there are only police witnesses and there is no public witness. The statement of S.I. Prabhakar Tiwari (P.W.8) and Mahendra Pal Singh, SI (Retd.) (P.W.5) are contradictory to each other and cannot be relied so far as recovery of knife is concerned. It may be added that recovery of knife was made on 4.7.2007 after the midnight and there is no whisper in the statement of P.W.5- Mahendra Pal Singh as to how and from which place, witnesses Harilal and Raj Kumar were taken to accompany the police party.
55. Before proceeding further, it would not be out of place to mention here that typically in a criminal trial, the statements made by witnesses before the Investigating Officer (IO) recorded under Section 161 CrPC are pressed into service to bring out inconsistencies or contradictions or improvements as the case may be on the part of the defence, to discredit the evidence of the prosecution witnesses. Thus, what a witness had stated before IO recorded under Section 161CrPC or a statement recorded under Section 164 CrPC before the Magistrate is generally compared with what the witness testified before the court to bring out the inconsistencies, contradictions in the evidence. Having discussed that previous statement of the witness recorded under Section 161 Cr.P.C. can be used only for the purpose of contradiction in the manner discussed above, a related issue may also be kept in mind.
56. One of the grounds for assailing the conviction of the appellant is that there were impermissible improvements, embellishments and inconsistencies in the evidence of the main prosecution witnesses qua their previous statement, which would render their evidence unreliable and creates doubt on the prosecution story.
57. In this regard, one may note numerous decisions of the courts in which it has been held that where the material improvements and embellishments has been found, evidence of such witness becomes unreliable and doubtful.
In M.G. Agarwal Vs. State of Maharashtra AIR 1963 SC 200: (1963) 1 Cri LJ 235 , the Hon'ble Supreme Court has been pleased to observe as under :-
"if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consistent with the guilt."
In Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116, the Hon'ble Supreme Court has been pleased to observe as under:-
"Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence."
In B.N. Mutto & Another Vs. Dr. T.K. Nandi (1979) 1 SCC 361, the Hon'ble Supreme Court has been pleased to observe as under:-
"It stems out of the fundamental principles of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him."
58. The discrepancies in the evidence of eye witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt.
59. While deciding such a case, the Court has to apply the aforesaid tests. No doubt the mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. However, the omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited.
60. In the instant case, as discussed above, there are major contradictions in the statements of witnesses as regard to the place where dead body was found, the timing of the incident, the information received by the police as the star witness in his deposition has stated that after informing at the house of the victim, he informed the police whereas police personnel in their statements have deposed that prior to the lodging of the FIR, no information with regard to incident was received by them.
61. Therefore, this Court also considers appropriate not to rely on the evidence of Sajiwan Lal (P.W. 2), as an eye witness and consequently it also discredits the evidence of Nand Lal (P.W.1) and S.I. Kamlesh Kumar (P.W.4). The inconsistencies and embellishments as pointed out by the learned counsel for the appellant has materially made difference to the crucial aspect of the incident of they being eyewitnesses.
62. One more thing which needs mention is that according to the Investigating Officer, the accused was arrested while they were in search of the accused in the late hours of midnight and on information of Informer, they saw that the accused was going from Kakori to Mohan Road. It is hard to digest that the appellant-accused after committing such a heinous crime will remain present in the village and will not escape when it has come in evidence that on account of incident, there was uproar in the public of the village and they have even blocked the Durgaganj crossing. It is a natural phenomena that if an accused commits the crime and some persons have seen him committing the crime, then he will make all efforts to ran away far place to avoid his arrest. Thus from the evidence of the police personnel it can easily be presumed that accused was not arrested in the manner as suggested or alleged by the police.
63. It is also important to mention here that as per prosecution versions, the incident occurred on 3.7.2007 at about 7.30 AM and the First Information Report was registered at the Police Station Kakori on the same day at 10.05 registered as case crime no. 162 of 2007. Mahendra Pal Singh has been examined by the prosecution as P.W.5, who was posted as Sub Inspector at the relevant time at the Police Station Kakori. He in his statement has stated that case was registered in his presence and on receipt of information, he alongwith other police officers and force had left for the place of occurrence. In his cross-examination this witness had stated that no prior information was received at the police station prior to lodging of the FIR whereas Sajiwan Lal (P.W.2), who is said to be star witness, had categorically stated in his statement that after giving information at the house of victim, had informed about the incident to the Police out-post and the information was transmitted from the police out post to the Police Station. It is the definite case of the prosecution that the FIR was registered at 10.05 AM and prior to lodging of the FIR, no information was received at the Police Station Kakori whereas Mahendra Pal Singh,S.I (Retd.) (P.W.5) has stated in clear words in his cross-examination that the police personnel had reached the site of occurrence at 10.05 AM. It is highly impossible that police will reach the spot at a time when FIR was registered. Thus, his statement demolishes the entire prosecution story and we find force in the argument of the learned counsel for the appellant that the appellant has falsely been implicated by someone who bore enmity against him and had disclosed his name to the informant and none had actually seen the alleged incident.
64. Our above finding is countenanced by the fact that as per medical evidence no gonococci or sperm was found and as such the story of committing rape by the appellant as narrated by Nand Lal (P.W.1)-informant and Sajiwan Lal (P.W.2) is falsified and create doubt on the prosecution story.
CONCLUSION
65. In the aforesaid facts and circumstances of the case, we are of the considered view that there is no cogent or clinching evidence on record which proves the guilt of the accused appellant beyond reasonable doubt. Henceforth, we hold that the prosecution has failed to prove the guilt of the appellant beyond all reasonable doubt, and the benefit of doubt has to go to the accused-appellant herein. The impugned judgment of conviction, thus found unsustainable and is liable to be set aside and the appellant is entitled to be acquitted by giving him the benefit of doubt.
66. Accordingly, the appeal is allowed. The impugned judgment and order dated 11.1.2013 passed by the Additional Sessions Judge, Court No.16, Lucknow in Session Trial No. 809 of 2007 (State Vs. Anil Kumar Kashyap), arising out of Case Crime No. 241 of 2007 under sections 302 and 376 IPC, Police Station Kakori, District Lucknow and Session Trial No. 810 of 2007 (State Vs. Anil Kumar Kashyap), arising out of Case Crime No. 242 of 2007 under section 4/25 Arms Act, Police Station Kakori, District Lucknow, is hereby set aside.
67. Appellant, Anil Kashyap is acquitted of the charges levelled against him under Sections 302, 376 (2) (cha) IPC and section 4/25 Arms Act. He is in jail. He shall be released forthwith, if not wanted in any other case.
68. Appellant Anil Kashyap is directed to file personal bond and two sureties each in the like amount to the satisfaction of the court concerned in compliance of Section 437-A of the Code of Criminal Procedure, 1973.
69. The office is directed to remit the Lower Court Record alongwith a certified copy of this judgment for necessary information and compliance forthwith to the court concerned.
[Shamim Ahmed,J.] [Ramesh Sinha,J.]
Order Date: 30.09.2022
GSY/-