Allahabad High Court
Ashok Yadav vs State Of U.P. on 3 November, 2022
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 43 Case :- JAIL APPEAL No. - 5277 of 2013 Appellant :- Ashok Yadav Respondent :- State of U.P. Counsel for Appellant :- From Jail,Sushil Kumar Dwivedi,Virendra Pratap Yadav Counsel for Respondent :- A.G.A.,Sanjay Sharma Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Shiv Shanker Prasad,J.
1. Heard Sri Virendra Pratap Yadav, learned Amicus Curiae for the appellant and the learned A.G.A. for the State.
2. This jail appeal is by the accused-appellant Ashok Yadav, who has been convicted in Sessions Trial No. 521 of 2011 (State Vs. Ashok Yadav), arising out of Case Crime No. 288 of 2011, under Section 302, 201 I.P.C., Police Station Puramufti, District Kaushambi and has been sentenced to life imprisonment alongwith fine of Rs.10,000/- under Section 302 I.P.C. and in default of payment in fine to further one year additional imprisonment; seven years imprisonment alongwith fine of Rs.5000/- for the offence under Section 201 I.P.C. and in default of payment in fine to one year additional imprisonment. All sentences are to run concurrently
3. The prosecution case proceeds on a written report of Basant Lal (P.W.-1), who has stated that next to his house is the house of his uncle Ashok Yadav (accused), who is of cantankerous nature and is a thief. He has thrown his wife out of the house about 3-4 months back and his only son Gangadeen (deceased), aged about 13 years was living with him. The deceased often used to have his meals at the house of the informant and he also used to render some services to him. The deceased however was not keen in living with the accused and wanted to go with his mother. On the night of 16/17.08.2011, the informant heard cries of Gangadin and he went to the house of the accused to inquire as to why Gangadin was crying. The accused from inside the house informed that Gangadin was insisting to go with his mother and he was being scolded by him. After sometime the cries of Gangadin stopped and the informant asked the accused to open the door but the accused informed from inside the house that the deceased had gone to sleep. The informant was asked to go back to his house.
4. At about 3:00 A.M. the accused came to the house of the informant and intimated him that Gangadin had run away from the house. The informant along with other family members tried to search Gangadin. The residents of the village namely Raghu Yadav and Jagmohan Yadav however informed the informant that at about 12:00 hours in the night, while they were returning home from the power house, the accused was carrying the deceased covered in a Kathri (stitched blanket) and upon inquiring these persons were informed by the accused that the deceased is unwell and he is taking him for treatment. The informant, therefore grew suspicion and when the accused was firmly inquired regarding the whereabouts of Gangadin that the accused confessed that he has strangulated the deceased and has thrown his body in the village pond. The informant states that while he was attempting to somehow retrieve the body from the pond, that the accused fled. With the assistance of other members of the village the dead body was ultimately retrieved and has been kept in adjoining field of Shamshad.
5. On the basis of such written communication given by P.W.-1, the first information report in Case Crime No. 288 of 2011, under Section 302, 201 I.P.C., Police Station Puramufti, District Kaushambi was registered. The police came on the spot and prepared a recovery memo in respect of the Kathri (stitched blanket) and a pair of slippers. The Panchayatnama was conducted and panch witnesses were of the opinion that deceased has been strangulated and the death is homicidal and in order to ascertain the correct cause of death the post mortem be got conducted. The post mortem has been conducted in which cause of death has been found to be asphyxia as a result of ante mortem strangulation and following ante mortem injuries have been found on the body of the deceased:-
1. Contused swelling of 7cm x 3cm present in front of neck, contusion is placed 2cm below chin, on cut section of contusion mark haemorrhage seen.
2. Multiple abraded contusion of 6cm x 4cm present of right side cheek, on cut section of contusion haemorrhage seen.
3. Contusion of 7cm x 5cm present on left side face. On cut section of contusion haemorrhage seen.
4. Abrasion of 2cm x 2cm present on right index finger."
6. The Investigation ultimately concluded in terms of Chapter XII of the Code of Criminal Procedure and the charge-sheet was submitted against the accused-appellant. The Magistrate took cognizance and committed the case to the Court of Sessions, who framed charge under Section 302 I.P.C. against the accused-appellant. The charges were denied and consequently the trial commenced.
7. The prosecution in order to establish the charge levelled against the accused-appellants, has relied upon following documentary evidences, which were duly proved and consequently marked as Exhibits:
"Written report dated 17.08.2011 has been marked as Exhibit-Ka-1; F.I.R dated 17.08.2011 has been marked as Exhibit-Ka-3; Site plan dated 17.08.2011 has been marked as Exhibit-Ka-5; recovery memo of Kathri & a pair of slippers dated 17.08.2011 has been marked as Exhibit-Ka-7; panchayatnama dated 17.08.2011 has been marked as Exhibit-Ka-6; Post mortem report dated 18.08.2011 has been marked as Exhibit-Ka-2 and charge-sheet dated 17.09.2011 has been marked as Exhibit-Ka-15."
8. The prosecution has also adduced oral testimony of following witnesses:-
"P.W.-1/ informant, namely, Basant Lal; P.W.-2, namely Raghghu Yadav, witness of the fact; P.W.-3, namely Dr. Shaji Rahil, who conducted the post-mortem of the deceased; P.W.-4, namely, Constable- Suresh Chandra, who prepared the chik report; P.W.-5, namely, M.P. Verma, S.I., who has conducted the Panchayatnama."
9. P.W.-1, Basant Lal at the stage of examination-in-chief has supported the prosecution version as per which the witness had heard cries/ screams of the deceased in the night and on enquiry from the accused, he was informed that the deceased wanted to be with his mother and was being scolded for it by the accused. After some time, the cries stopped and P.W.-1 again came to the house of the accused and asked him to open the door but the accused informed him from inside the house that the deceased has gone to sleep and that he may go back to his house. The further story that the accused was seen carrying the deceased covered in a kathri (stiched blanket) by Raghghu and Jagmohan Yadav has also been reiterated. However, at the stage of cross-examination, P.W.-1 has come up with entirely different version and has disowned the previous statement made by him in examination-in-chief. He has stated that he had neither heard cries/screams of the deceased in the night intervening 16/17.08.2011 nor had he inquired as to why the deceased was crying. Every part of the statement has been specifically noticed and disowned by P.W.-1. He has also tried to suggest that it is not clear whether the deceased was strangulated or he slipped accidentally and fell in the pond. He has also denied having given any written information to the police on the basis of which the F.I.R. itself was lodged.
10. Similarly P.W.2 has also supported the prosecution case in the examination-in-chief but at the stage of cross-examination he retracted from his previous statement made at the stage of the examination-in-chief and has stated that neither he met the accused in the intervening night nor had he seen the accused, carrying the deceased, covered in a kathri (stitched blanket) and that he has come to know only in the morning that the son of the accused-appellant had drowned in the pond and his dead body has been retrieved.
11. So far as the statement of Doctor is concerned he has proved the autopsy report and the cause of death has been proved to be strangulation. The other formal witnesses have also proved the F.I.R. and other investigation including the recovery memo.
12. On the basis of above evidence led by the prosecution, the accused was confronted with the incriminating materials, collected during the course of investigation, against him. The accused-appellant however stated that he has not committed any murder and has otherwise denied the allegations made against him. No defence witness, however, has been produced. It is on the basis of above material that the trial court has come to the finding that the prosecution has succeeded in proving the guilt of the accused-appellant under Section 302 I.P.C., beyond reasonable doubt, and the deceased has been sentenced to life.
13. Aggrieved by the conviction and sentence awarded to the accused-appellant the present jail appeal has been filed by him.
14. Sri Virendra Pratap Yadav, learned Amicus Curiae appointed in the present jail appeal has taken the Court through the facts of the case in extenso. It is urged on behalf of the appellant that though the death of the deceased was homicidal yet the accused-appellant cannot be held guilty in the matter as there is no evidence to connect him with the offence. It is further submitted that P.W.-1 and P.W.-2, who are the only witnesses of the fact have turned hostile at the stage of cross-examination and their version is inconsistent inasmuch as the witnesses of fact in the examination-in-chief have supported the prosecution case and have taken a contrary stand at the stage of cross-examination. As such the witnesses have clearly discredited their testimony as their stand is contradictory at different stages of the proceedings of trial. He further submits that apart from the statement of two witnesses no other evidence has been produced by the prosecution so as to connect the occurrence of the offence with the accused-appellant. It is the argument of learned Amicus Curiae that this is a case of circumstantial evidence as none has seen the occurrence of crime and the chain of events pointing to the hypothesis of guilt on part of the accused-appellant has not been proved by the prosecution.
15. Per contra, Sri Arunendra Singh, learned A.G.A. submits that this is a case involving heinous offence in which the accused-appellant has rightly been held guilty inasmuch as the two witnesses of fact have clearly implicated the accused of the offence for which medical evidence in the form of post mortem report clearly corroborates statements made at the stage of examination-in-chief and merely because for unknown reasons the witnesses have retracted at the stage of cross-examination yet their initial stand taken at the stage of examination-in-chief cannot be ignored, altogether. He further submits that the deceased was living with the accused, who is his father and the fact that he was neither present at the time of panchayatnama clearly indicates that his conduct was not natural in not being present at the time when enquiry was being made with regard to death of his son. He next submits that the presumption under Section 106 of Evidence Act, 1872 would otherwise stare against the accused-appellant inasmuch as the deceased was residing only with him and is expected to have specific information/ knowledge about the manner and cause of death of his son and having failed to disclose such specific information the presumption in law would stand against him.
16. We have heard learned counsel for the respective parties in light of their submissions advanced and have carefully examined the records of the present jail appeal including the lower court records.
17. This is a case in which the proceedings have commenced on the basis of a written information of P.W.-1 which clearly contains statement of facts clearly implicating the accused of committing the murder of his son. The investigation conducted pursuant to such written report in the form of panchayatnama also indicates that the deceased was strangulated. The post mortem report also menions the cause of death as asphyxia due to ante mortem strangulation and the injuries have been clearly specified. The evidence produced by the prosecution therefore, leaves no room of doubt that the death of the deceased is homicidal. The cause of death being strangulation, the suggestion given by some of the witnesses that the cause of death is drowning cannot be believed.
18. The question that needs examination in the facts of the case is as to whether the deceased was strangulated by the accused-appellant and whether the prosecution has proved his guilt beyond reasonable doubt?
19. Though the death is admittedly homicidal yet the implication of accused-appellant is based upon the deposition of two witnesses of fact produced by the prosecution namely, P.W.-1 and P.W.-2. P.W.-1 in his examination-in-chief has supported the sequence of facts recorded in the F.I.R. as per which P.W.-1 heard the cries/ screams of the deceased and he made necessary enquiries from the accused followed with the first informant gathering information from P.W.-2 that the accused was seen taking the deceased at about 12:00 hours in the night and the accused later informed the first informant that the deceased ran away and later his dead body was found in the pond but at the stage of cross-examination this witness has clearly taken a somersault and has retracted from his previous deposition made at the stage of examination-in-chief. Similar is the status of testimony of P.W.-2, who also has supported the prosecution case at the stage of examination-in-chief but has specifically disowned his statements made earlier at the stage of cross-examination. On record we find that there are two mutually inconsistent stand/statement of P.W.-1 and P.W.-2. One version supports the prosecution case and other version supports the innocence of accused-appellant. It is in the above context that this Court is called upon to determine as to which of the version of the prosecution witness P.W.-1 and P.W.-2 would be reliable.
20. The provisions of the Indian Evidence Act, 1872 can be referred to and relied upon in order to determine as to which of two versions needs to be relied upon by the Court. Section 154 to 157 of the Act of 1872 provides necessary guidance to the Court for determination of the probative value of the deposition made by P.W.-1 and P.W.-2. Chapter X of the Act of 1872 deals with the examination of witnesses. Section 135 describes the order of production and examination of witnesses, whereas Section 136 confers jurisdiction on the Judge conducting the trial to specify the sequence and the manner in which the evidence itself has to be adduced. Section 137 provides for examination-in-chief and the cross-examination by the adverse party of the witness. Section 138 specifies the order of examination and also confers power of re-examination to the Court. Section 146 specifies the nature of questions which may be put to a witness in cross-examination for the purpose of testing his veracity and to discover the identity of the witness or his position in life or to shake his credit, by injuring his character etc. Court has been given power under Section 148 to decide as to when a witness can be compelled to the answer a question. Section 154 allows the Court to permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
21. In a case of instant kind where the prosecution witness has gone against his own stand, taken at the stage of examination-in-chief, during the cross-examination by the adverse party, it would be open for the prosecution to question such witness about the circumstances or confront him with his previous statement so as to indicate as to whether the subsequent stand taken by the witness would be reliable or not. Law in that regard is well settled and even a witness who has been declared hostile can be examined and his evidence to the extent it supports the prosecution case can be relied upon. However, when the witness comes forward with two diagonally opposite statements in respect of the fact on which he is called upon to adduce evidence, then it is upon the prosecution to prove that his subsequent statement (as the case herein) is not reliable or that he is not making a true deposition before the court. If this exercise is not undertaken and the prosecution allows the two divergent statements of the witness to stand, in respect of the event in question, then it would be difficult for the court to rely upon the testimony of such a witness as the contradictory stand on a point of fact would clearly render him unreliable.
22. Although Sri Arunendra Singh, learned A.G.A. has tried to submit that in the facts of the case the evidence led by the prosecution clearly supports the first stand of the prosecution witnesses P.W.-1 and P.W.-2 as they are consistent with the post mortem report yet we are not inclined to accept such submission of learned A.G.A. as we find that the prosecution has failed to discharge its burden in terms of Section 154 of the Act of 1872 by putting his own witness to question on the subsequent statement made at the stage of cross-examination.
23. We may also refer to Section 155 of the Act of 1872 which provides the manner in which the credit of a witness may be impeached by adverse party in the manner prescribed therein. For ready reference Section 155 is reproduced hereinafter:-
"155. Impeaching credit of witness. -The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him: --
(1) By the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(2) By proof that the witness has been bribed, or has [accepted] the offer of bribe, or has received any other corrupt inducement to give his evidence;
(3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;"
24. Section 157 of the Act of 1872 also assumes importance as the former statements of witness may be proved to corroborate later testimony as to same fact. The statute thus provides that in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. We find that the prosecution has miserably failed to impeach the subsequent stand of the witness by resorting to the manner and procedure specified under Section 155 to 157 of the Act of 1872. Having failed to discharge its burden of proving that subsequent statement of the witness is not reliable, we cannot allow the prosecution to contend that the subsequent statement of the witness made at the stage of cross-examination be ignored particularly when the testimony made at the stage of cross-examination has not been impeached in the manner specified in law.
25. So far as the fact about absence of the accused-appellant at the stage of preparation of panchayatnama is concerned or that he made no efforts to trace out the deceased, we are of the view that such facts may only generate suspicion against the accused-appellant of commissioning of the offence. Law is settled that suspicion howsoever strong it may be cannot independently be the basis for implication or conviction of an accused. Law in that regard has been settled by the Supreme Court in a recent judgment in Ram Niwas Vs. State of Haryana, 2022 SCC OnLine SC 1007, wherein the Court after referring to the evidence on record proceeded to observe as under in para 20 and 21:-
"20. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.
21. In the present case, we find that the prosecution has utterly failed to establish the chain of events which can be said to exclusively lead to the one and only conclusion, i.e., the guilt of the accused. In that view of the matter, we find that the judgment and order of the learned Sessions Judge and that of the High Court are not sustainable."
26. Once we cumulatively analyze the evidence led by the prosecution to prove the guilt of the accused-appellant, we find that apart from establishing the factum of homicidal death of the deceased it has failed to connect the accused-appellant with the commissioning of the offence and the circumstances on which the guilt of the accused could be proved or inferred, have not been proved at all. We find that the court below upon evaluation of the facts noticed above has accepted the testimony of prosecution witnesses P.W.-1 and P.W.-2 on the ground that the evidence available on record in the form of post mortem report corroborates the statement of the witnesses made at the stage of examination-in-chief and the fact that principal of falsus in uno falsus in omnibus (false in one thing false in everything) does not apply to the courts in India as such the statements of the witnesses made at the stage of examination-in-chief can be looked into and have been relied upon to return the conviction of the accused. We are of the view that the court below has not adverted to the aspect relating to credibility of the deposition made by P.W.-1 and P.W.-2 in light of two contradictory stands taken by them on same facts. The court below has also not referred to the provisions of the Indian Evidence Act, 1872 and has completely overlooked the fact that the prosecution has failed to impeach the testimony of P.W.-1 and P.W.-2 made at the stage of cross-examination and the consequences which ensues on account of such failure by the prosecution. The statements of witnesses P.W.-1 and P.W.-2 could have been looked into or relied upon to return the conviction of accused only if the prosecution had impeached the later part of the testimony of the two witnesses in the manner specified herein above. Failure to do so by the court below would render it legally impermissible for the Court to refer to or rely upon the testimony of P.W.-1 and P.W.-2 at the stage of examination-in-chief by omitting the contrary stand of the same witness taken at the stage of cross-examination. The reasoning adopted by the court below for arriving at the finding of guilt of the accused-appellant is, therefore, found contrary to law and the conviction based upon such reasoning is held impermissible.
27. We may also at this stage refer to para 18 and 19 of the judgment in Ram Niwas (Supra) wherein the Court in a case based on circumstantial evidence has observed as under:-
"18. The prosecution case rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, wherein this Court held thus:
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] . This case has been uniformly followed and applied by this Court in a large number of later decisions up todate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198: 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625: AIR 1972 SC 656]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] :
"It is well to remember that in in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the 2 (1984) 4 SCC 116 guilt of the accused. Again, the circum stances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ''may be' and ''must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
19. This Court has held that there has to be a chain of evidence so complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It has been held that the circumstances should be of a conclusive nature and tendency. This Court has held that the circumstances should exclude every possible hypothesis except the one to be proved. It has been held that the accused ''must be' and not merely ''may be' guilty before a Court can convict."
28. In view of the above deliberations and discussions, we find that the trial court has erred in returning the finding of guilt against the accused-appellant on the basis of evidence led by the prosecution. Finding of the court below that the guilt of the accused-appellant has been proved beyond reasonable doubt is perverse. We hold that the prosecution has failed to prove the guilt of the accused-appellant beyond reasonable doubt and therefore, the conviction and sentenced of the accused-appellant is reversed.
29. Accordingly, the present jail appeal stands allowed.
30. The accused-appellant shall be released from jail, forthwith, unless he is wanted in any other case, subject to compliance of Section 437A Cr.P.C. Fine imposed upon the accused-appellant also cannot be maintained and is thus set aside.
31. Sri Virendra Pratap Yadav, learned Amicus Curiae has ably assisted this Court and would be entitled to his fee from the High Court Legal Services Authority.
32. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Kaushambi henceforth, who shall transmit the same to the concerned Jail Superintendent for release of the accused-appellant in terms of this judgment.
(Shiv Shanker Prasad, J.) (Ashwani Kumar Mishra, J.)
Order Date :- 3.11.2022
Abhishek Singh