Allahabad High Court
Kali Charan vs State Of U.P. on 31 January, 2019
Bench: Sudhir Agarwal, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 02.01.2019 Delivered on 31.01.2019 Court No. - 34 Case :- JAIL APPEAL No. - 2709 of 2012 Appellant :- Kali Charan Respondent :- State Of U.P. Counsel for Appellant :- From Jail, Nishi Mehrotra (AC) Counsel for Respondent :- A.G.A. Hon'ble Sudhir Agarwal,J.
Hon'ble Rajendra Kumar-IV,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. This Jail Appeal under Section 383 Cr.P.C. through Superintendent of Jail, Hathras has been filed by accused-appellant, Kalicharan against judgement and order dated 11.04.2012 passed by Sri Sanjay Kumar, Additional Sessions Judge, Court No. 4, Hathras in Sessions Trial No. 297 of 2010 relating to Case Crime No. 340 of 2010, P.S. Sasni, District Hathras, convicting accused-appellant under Section 302 IPC and sentencing him to undergo life imprisonment with a fine of Rs. 5000/- and in default of payment of fine, he has to undergo further additional imprisonment of one year.
2. Factual matrix of the case as emerging from First Information Report (hereinafter referred to as "FIR") as well as material placed on record is as follows.
3. An FIR Ex.Ka-1 dated 03.08.2010 was presented in Police Station Sasni, District Mahamaya Nagar by Informant PW-1 Mukesh Kumar, alleging that in the night preceding 03.08.2010 at about 12:30 AM, Informant's real brother Kalicharan committed murder of his wife Smt. Kiran Devi by chopping her neck from back side with spade while she was sleeping under tin-shed, on apprehension of her having illicit relations with someone. As soon as, Informant's son Master Sachin aged about 9 years cried, he was silenced. After some time, accused-appellant Kalicharan fled away. On coming to know about the incident, Informant had gone to police station for furnishing information. FIR further recites that dead body of Informant's Bhabhi (elder brother's wife) was lying at his house.
4. On receipt of written report Ex.Ka-1, Chik Report Ex.Ka-7 was prepared by PW-4 Constable Mahavir Singh who registered the case under Section 302 IPC at Case Crime No. 340 of 2010. An entry of case was made in General Diary on 03.08.2010 at 08:30 AM, a copy of which is Ex.Ka-8 on record. Immediately after registration of case, investigation was undertaken by PW-5 Sri R.N. Singh, the then Station House Officer at Police Station Sasni, who took copies of written report and Chik FIR and proceeded to place of occurrence. He recorded statements of Informant, Village Chowkidar Satish Kumar, Head Moharrir and eye witnesses, namely, child witness Sachin PW-2, wife of Informant and his mother. PW-5, Investigating Officer (hereinafter referred to as "I.O."), prepared site plan Ex.Ka-9 and under his instructions, S.I. Khem Singh Jalal took sample of bloodstained and simple earth, sealed them in separate packs and prepared recovery memo Ex.Ka-3. He also prepared Inquest, took into possession broken pieces of bangles of deceased and prepared recovery memo Ex.Ka-4 in respect thereof. Weapon i.e. bloodstained spade used in the crime was recovered on pointing out of accused-appellant and taken into possession, in respect whereof, recovery memo Ex.Ka-5 was prepared. Thereafter, dead body was duly sealed and sent for postmortem to District Hospital Hathras along with letter of request Ex.Ka-11 to Chief Medical Officer and other necessary documents i.e. Challan Nash Ex.Ka-12, Photo Nash Ex.Ka-13. Thereafter, Material Exhibits i.e. Ex.1 simple earth, Ex.2 bloodstained earth, Ex.3 pieces of bangles and Ex.4 spade were sent to forensic laboratory for chemical examination.
5. Autopsy over the dead body of deceased Smt. Kiran Devi was conducted by PW-3 Dr. Neeraj Agarwal, Medical Officer, C.H.C. Sadabad, Mahamaya Nagar on 03.08.2010 at about 03:00 PM. On external examination, deceased was found of average body built, aged about 28 years, rigor mortis had passed through upper extremities and present in lower extremities. In the opinion of doctor, death had occurred about half a day before at the time of autopsy. He found following ante mortem injuries on her person :
"Incised wound 10 cm x 5 cm, bone deep on the left lateral aspect of neck, extending to the back of neck. All mucus and neck vessels were cut alongwith C3 vertebra which was also cut. Trachea was also found cut."
(Emphasis added)
6. On internal examination, spinal cord and vertebra at the level of C-3 were found cut; both chambers of heart were empty; neck vessel on left side cut; stomach contained 3 ounces pasty food material; small intestine contained semi digested food with gases; large intestine contained faecal matter with gases; gall bladder half full; both kidneys pale and urinary bladder was empty. In the opinion of doctor, death had occurred due to shock and hemorrhage as a result of anti mortem injuries. PW-3 prepared postmortem report Ex.Ka-6 and handed over dead body after duly sealing the same along with clothes of deceased and necessary documents to Constables who had brought the corpse.
7. After conclusion of investigation, charge-sheet Ex.Ka-14 against accused-appellant under Section 302 IPC was submitted in the Court of Chief Judicial Magistrate, Hathras on 06.09.2010 who took cognizance of the offence. The offence being triable by Court of Sessions, case was committed to Sessions Court on 01.10.2010. The case was transferred to Additional Sessions Judge, Court No.2, Hathras who framed charge against accused-appellant under Section 302 IPC on 28.04.2011 as under :
^^eSa ftrsUnz dqekj] vij l= U;k;k/kh'k dksVZ la0&2 gkFkjl vki vfHk;qDr 1- dkyhpju ds fo:) fuEu vkjksi yxkrk gwW%& izFke%& ;g fd fnukad 2@3-8-2010 dks le; djhc 12 cts vk/kh jkf= LFkku xzke xkjox<+h lhekUrxZr Fkkuk lkluh ftyk gkFkjl dh lhek esa vkius viuh iRuh Jherh fdjunsoh dh lksrs le; QkoM+s ls xnZu dkVdj gR;k dj nhA bl izdkj vkius /kkjk&302 Hkk-n-la- ds rgr n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA ,rn~}kjk vkidks funsZf'kr fd;k tkrk gS fd mDr vkjksi esa vkidk fopkj.k bl U;k;ky; }kjk fd;k tk,xkA** "I, Jitendra Kumar, Additional Sessions Judge, Court No. 2, Hathras charge you accused
1. Kalicharan with following charges :-
Firstly, that you on 2/3.8.2010 at about 12 night in Village Garavgadhi under Police Station Sasni, District Hathras committed murder of his wife Smt. Kiran Devi by chopping her neck with spade while she was sleeping. Thereby you have committed an offence punishable under Section 302 IPC which is within cognizance of this Court.
It is hereby directed that for the aforesaid charge your trial shall be conducted by this Court." (Emphasis Added) (English Translation by Court) Accused-appellant pleaded not guilty and claimed to be tried.
8. Sessions Trial ultimately came to be heard by Additional Sessions Judge, Court No. 4, Hathras
9. In order to substantiate its case, prosecution has examined total five witnesses out of whom, Informant PW-1 Mukesh Kumar and his son PW-2 Master Sachin are witnesses of fact and deposed ocular account of occurrence, motive, recovery of material exhibits and preparation of various recovery memos. PW-3 Dr. Neeraj Agarwal, PW-4 Constable Mahavir Singh and PW-5 S.I. R.N. Singh are formal witnesses. PW-3 Dr. Neeraj Agarwal had conducted autopsy on the dead body of deceased Smt. Kiran Devi and has proved postmortem report Ex.Ka-6. PW-4 Constable Mahavir Singh had registered FIR and has proved Chik FIR Ex.Ka-7, copy of G.D. Entry Ex.Ka-8. PW-5 is I.O. S.H.O., R.N. Singh who has proved site plan Ex.Ka-9, recovery memo Ex.Ka-3 in respect of bloodstained and simple earth, Ex.Ka-4, recovery memo with respect to broken pieces of bangles, Inquest Ex.Ka-2, Ex.Ka-5 recovery memo regarding weapon used in the crime and charge-sheet Ex.Ka-14. He also proved material exhibits simple earth, bloodstained earth, pieces of bangles and spade, Material Exhibits No. 1, 2, 3 and 4, respectively.
10. On closure of prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded in which he has stated that he is innocent, entire prosecution case is false and he has been falsely implicated in the case. Accused-appellant did not adduce any documentary or oral evidence in support of his defence.
11. Trial Court after hearing counsel for parties and appreciating entire evidence on record has found that prosecution version is that accused-appellant murdered his wife in the midnight on 02/03.08.2010 while she was sleeping by chopping her neck with spade. Master Sachin, son of accused-appellant is the sole eye-witness of entire incident. He narrated entire incident to his uncle i.e. Informant, Mukesh Kumar, in the morning and, thereafter, FIR was lodged and police came into action. Therefore, ocular testimony of fact that accused-appellant killed his wife by chopping her neck with spade is that of Master Sachin, PW-2, who was 10 years old on 19.10.2011 when his statement was recorded by Trial Court and about 9 years on the date of incident, since Report was lodged by Informant Mukesh Kumar, brother of accused, after receiving information from his nephew in the morning. Time of registration of FIR is 08:30 AM on 03.08.2010. Distance of village of appellant to Police Station is about 9 Kms and in these circumstances, FIR cannot be said to be belated by any means. Trial Court found ocular testimony of PW-2, due creditworthy, reliable and clean. Certain contradictions pointed out by defence were not found sufficient to reject, ocular testimony of PW-2, Master Sachin, who was a minor and his presence in the night with parents is quite natural and, therefore, he was a natural witness of entire incident. Even otherwise, there was no reason for the minor son to depose against his father. Discovery of weapon of murder i.e. spade on the information given by accused-appellant while he was in custody, has also been found reliable, admissible and creditworthy evidence. Medical report i.e. postmortem, proved by Dr. Neeraj Agarwal, PW-3, corroborated prosecution version that she was murdered by chopping off her neck with spade. Forensic report in respect of spade also found human blood thereon and since weapon of crime was discovered on the information given by accused-appellant while in custody, logical inference was that blood found on spade was that of deceased and this was also an evidence against accused-appellant. Court below also noted conduct of accused-appellant that he was absconding and arrested by police on the next date, though, in normal course, since his wife was murdered, he ought to have been the first person to lodge report and come to police station for investigation etc. In the entirety of facts and circumstances and considering the evidence, Trial Court has recorded its satisfaction that prosecution successfully proved its case beyond reasonable doubt and, consequently held accused-appellant guilty of the offence under Section 302 IPC. Trial Court, therefore, has convicted and sentenced accused-appellant vide judgment under appeal and dissatisfied therewith, this jail appeal has been filed by accused-appellant through Superintendent of Jail, Aligarh.
12. We have heard Miss. Nishi Mehrotra, learned Amicus Curiae appearing for appellant, Sri Udit Chandra, learned A.G.A. for State and have gone through the entire record.
13. Learned Amicus Curiae appearing for appellant has challenged conviction of accused-appellant advancing her submissions in the following manner :
(i) Incident allegedly took place at 12:30 in the midnight but report was lodged at 08:30 in the morning and there is no proper and valid explanation of delay.
(ii) Prosecution story is that PW-2 minor son of accused-appellant and deceased, was eye-witness to incident and had seen that accused-appellant chopped off neck of his wife in the midnight at 12:30 and, thereafter ran away but PW-2 did not inform neighbors or his uncle who were residing in the house in vicinity of accused-appellant and it is unbelievable that PW-2 would have passed entire night with a dead body and that too being alone in the entire house.
(iii) PW-1 claimed that he was informed of the incident by PW-2 in the morning when PW-2 woke him up at around 6 or 7 AM but PW-2 stated that he informed the incident to his uncle Vinod in the morning and not PW-1.
(iv) There was no source of light in the night at the place where incident took place, hence, it cannot be believed that PW-2 could have seen the incident clearly and identified accused-appellant correctly.
(v) Discovery of weapon of crime has not been proved and seriously doubtful since recovery memo did not contain signatures or thumb impression of accused-appellant.
(vi) There is no forensic examination that blood found on spade (alleged weapon of crime) is that of deceased and no examination has been made on this aspect.
(vii) PW-2 after death of his mother and accused-appellant being in jail, was residing with his grand-mother and, therefore, under the influence of Informant and Grand-Parents. He was tutored to give false statement against accused-appellant.
14. On the contrary, learned A.G.A. contended that this is a clear case of hit and run where accused has murdered his wife; his minor son is the eye-witness to entire incident; factum that accused-appellant ran away from the house and was later on arrested by police itself shows that appellant had committed crime; no evidence to show enmity either with brother Mukesh i.e. PW-1 or grand-parent of PW-2 i.e. mother of accused-appellant has been produced and evidence of PW-1 and PW-2 being close relative of accused-appellant himself is reliable and credible since there is no reason to doubt their genuineness and credibility when no otherwise evidence has come on record. He submitted that accused-appellant has rightly been punished and judgment of Trial Court warrants no interference.
15. The first question which we have to examine is the time of incident. PW-2, minor son of accused-appellant i.e. Master Sachin has stated that about a year back, he was sleeping with his mother and younger brother under a tinshed in the house. In cross-examination, he said that in the early night, all, i.e. mother, father and children had dinner together and went to sleep. A lamp was lighted in the evening and it continued to be lighted when they slept. Exact time of taking dinner, he could not tell and it is nobody's case that living style of accused-appellant was such that there must have been a watch on the wall; or, members of family otherwise used to notice time when they used to go for their routine work. However, he has proved in cross-examination that all went to sleep after taking dinner. On the question that all were sleeping together and at the same place, we find no cross-examination at all and therefore, whatever stated by PW-2 in examination-in-chief, remains uncontroverted and there is no reason to disbelieve it. Accused-appellant is a labour. This fact has also been stated by PW-2 and therefrom living standard of accused-appellant is quite understandable. In the night, accused-appellant hit on the neck of his wife and when his wife who was in sleep, shivered her leg and touched PW-2, he woke up. He immediately got his younger brother woken up from sleep and saw his mother was bleeding and father standing with a spade in his hand. Father i.e. accused-appellant threatened PW-2 that he should silently sleep and not to tell to anyone. Getting frightened PW-2 remained silent and, thereafter, accused-appellant ran away. In cross-examination, PW-2 said that after having seen the incident, he went to sleep and woke up in morning and thereafter, went to his uncle whose house is just a small lane (खड़ंजा) away from the house of accused-appellant. On these aspects, there is much cross-examination but nothing substantial has been extracted by defence from otherwise ocular and reliable testimony of PW-2 clearly implicating accused-appellant of having committed crime of murder of his wife. Much stress has been placed on the fact that in FIR, time of incident has been given as 1 or 2 AM and information was given by PW-2 to PW-1 in the early morning at about 6-7 AM and it cannot be believed that two minor children stayed with dead body of their mother for about 4-5 hours when she was bleeding. Here, we notice that time has been mentioned by Informant after receiving information from PW-2. PW-2 had no occasion to notice exact time and, therefore, in the mention of time by Informant naturally there is a guess work but fact remains that incident happened before 6 or 7 AM on 03.08.2010. Postmortem was conducted at around 03:00 PM on the same date and Doctor who conducted autopsy has deposed as PW-3 that death must have taken place about half a days back which comes around 03:00 AM in the morning. Thus, on the mere fact that time of incident given in FIR and also in the testimony of PW-1 as 1 or 2 AM or even 12:30 AM, it cannot be said that this time should be taken as a standing pillar to test the veracity of other evidence. This time is obviously assumed by PW-1 after receiving information from his minor nephew who could not have been in a position to give exact time. Moreover, it is not the case of defence that there was a Clock watch available in the house and in the night, PW-2 must have noticed the time of incident.
16. Incident clearly happened in the early morning on 03.08.2010 and within a few hours, report was also lodged. PW-2 informed his uncle in the early morning i.e. 6 or 7 AM which also shows that incident must have occurred a little early thereto, therefore, veracity of testimony cannot be doubted only on a conjecture that two minor children could not have stayed with dead body of their mother for a long time of 5-6 hours and it is improbable. Oral testimony of PW-1, in our view, is wholly reliable, clean and admits of no such contradiction, so as to discredit this witness. Trial Court has rightly relied on his testimony to convict accused-appellant. PW-1 is not an eye witness of incident but a witness to the fact that incident took place prior to 6 or 7 AM in the morning and after having seen the dead body of Smt. Kiran Devi (bhabhi of PW-1), he went to lodge report to Police Station. PW-1 is also a witness to discovery of weapon of crime i.e. spade and he has proved Furd memo (Ex.Ka-5). He has clearly described the manner in which information is given by accused-appellant and he got a discovery of spade used in the crime which was found from the field of Bajra when he was under arrest.
17. The testimony of an eye-witness merely because he happens to be a relative of deceased cannot be discarded as "Close Relative" would be the last one to screen out the real culprit and implicate innocent person, as per the Apex Court in the case of Dilip Singh Vs. State of Punjab AIR 1953 S.C. 364. This aspect of the mater has further been clarified by the Apex Court in the case of Dharnidhar Vs. State of Uttar Pradesh (2010) 7 SCC page 759 as follows:
"12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim."
18. It is true that admission of guilt by accused-appellant before police is not admissible but factum is that weapon of crime i.e spade was discovered on the information received from accused-appellant when he was in custody and it is admissible under Section 27 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872") and this fact further corroborates that accused-appellant has committed said crime.
19. Section 27 of Act, 1872 provides for how much of information received from accused who is in custody of police may be proved. It reads as under:
"27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
20. Aforesaid provision is by way of proviso to Sections 25 and 26 of Act, 1872. An statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused.
21. In Delhi Administration vs. Bal Krishan and Ors., 1972(4) SCC 659 Court said that Section 27 permits proof of so much of information which is given by persons accused of an offence when in custody of a Police Officer as relates distinctly to the fact thereby discovered, irrespective of whether such information amounts to a confession or not. Sections 25 and 26 of Act, 1872 provides that no confession made to a Police Officer whether in custody or not can be proved as against the accused. Section 27, therefore, is proviso to above Sections and statement even by way of confession, which distinctly relates to the fact discovered is admissible as evidence against accused in the circumstances stated in Section 27.
22. In Mohmed Inayatullah vs. The State of Maharashtra, 1976(1) SCC 828 Court observed that though interpretation and scope of Section 27 has been subject of consideration in several authoritative pronouncement but its application to concrete cases is not always free from difficulty. In order to make its application swift and convenient Court considered the provision again and said:
"12. The expression "Provided that" together with the phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section in to operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly relates to the fact thereby discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered."
23. Idea behind Section 27 has been explained by Court in para 20 of judgment in Bodh Raj @ Bodha and Ors. vs. State of Jammu and Kashmir (supra) as under:
"20. If all that is required to lift the ban be the inclusion in the confession information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recoveryA.F.R. Reserved on 02.01.2019 Delivered on 31.01.2019 Court No. - 34 Case :- JAIL APPEAL No. - 2709 of 2012 Appellant :- Kali Charan Respondent :- State Of U.P. Counsel for Appellant :- From Jail, Nishi Mehrotra (AC) Counsel for Respondent :- A.G.A.
Hon'ble Sudhir Agarwal,J.
Hon'ble Rajendra Kumar-IV,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. This Jail Appeal under Section 383 Cr.P.C. through Superintendent of Jail, Hathras has been filed by accused-appellant, Kalicharan against judgement and order dated 11.04.2012 passed by Sri Sanjay Kumar, Additional Sessions Judge, Court No. 4, Hathras in Sessions Trial No. 297 of 2010 relating to Case Crime No. 340 of 2010, P.S. Sasni, District Hathras, convicting accused-appellant under Section 302 IPC and sentencing him to undergo life imprisonment with a fine of Rs. 5000/- and in default of payment of fine, he has to undergo further additional imprisonment of one year.
2. Factual matrix of the case as emerging from First Information Report (hereinafter referred to as "FIR") as well as material placed on record is as follows.
3. An FIR Ex.Ka-1 dated 03.08.2010 was presented in Police Station Sasni, District Mahamaya Nagar by Informant PW-1 Mukesh Kumar, alleging that in the night preceding 03.08.2010 at about 12:30 AM, Informant's real brother Kalicharan committed murder of his wife Smt. Kiran Devi by chopping her neck from back side with spade while she was sleeping under tin-shed, on apprehension of her having illicit relations with someone. As soon as, Informant's son Master Sachin aged about 9 years cried, he was silenced. After some time, accused-appellant Kalicharan fled away. On coming to know about the incident, Informant had gone to police station for furnishing information. FIR further recites that dead body of Informant's Bhabhi (elder brother's wife) was lying at his house.
4. On receipt of written report Ex.Ka-1, Chik Report Ex.Ka-7 was prepared by PW-4 Constable Mahavir Singh who registered the case under Section 302 IPC at Case Crime No. 340 of 2010. An entry of case was made in General Diary on 03.08.2010 at 08:30 AM, a copy of which is Ex.Ka-8 on record. Immediately after registration of case, investigation was undertaken by PW-5 Sri R.N. Singh, the then Station House Officer at Police Station Sasni, who took copies of written report and Chik FIR and proceeded to place of occurrence. He recorded statements of Informant, Village Chowkidar Satish Kumar, Head Moharrir and eye witnesses, namely, child witness Sachin PW-2, wife of Informant and his mother. PW-5, Investigating Officer (hereinafter referred to as "I.O."), prepared site plan Ex.Ka-9 and under his instructions, S.I. Khem Singh Jalal took sample of bloodstained and simple earth, sealed them in separate packs and prepared recovery memo Ex.Ka-3. He also prepared Inquest, took into possession broken pieces of bangles of deceased and prepared recovery memo Ex.Ka-4 in respect thereof. Weapon i.e. bloodstained spade used in the crime was recovered on pointing out of accused-appellant and taken into possession, in respect whereof, recovery memo Ex.Ka-5 was prepared. Thereafter, dead body was duly sealed and sent for postmortem to District Hospital Hathras along with letter of request Ex.Ka-11 to Chief Medical Officer and other necessary documents i.e. Challan Nash Ex.Ka-12, Photo Nash Ex.Ka-13. Thereafter, Material Exhibits i.e. Ex.1 simple earth, Ex.2 bloodstained earth, Ex.3 pieces of bangles and Ex.4 spade were sent to forensic laboratory for chemical examination.
5. Autopsy over the dead body of deceased Smt. Kiran Devi was conducted by PW-3 Dr. Neeraj Agarwal, Medical Officer, C.H.C. Sadabad, Mahamaya Nagar on 03.08.2010 at about 03:00 PM. On external examination, deceased was found of average body built, aged about 28 years, rigor mortis had passed through upper extremities and present in lower extremities. In the opinion of doctor, death had occurred about half a day before at the time of autopsy. He found following ante mortem injuries on her person :
"Incised wound 10 cm x 5 cm, bone deep on the left lateral aspect of neck, extending to the back of neck. All mucus and neck vessels were cut alongwith C3 vertebra which was also cut. Trachea was also found cut."
(Emphasis added)
6. On internal examination, spinal cord and vertebra at the level of C-3 were found cut; both chambers of heart were empty; neck vessel on left side cut; stomach contained 3 ounces pasty food material; small intestine contained semi digested food with gases; large intestine contained faecal matter with gases; gall bladder half full; both kidneys pale and urinary bladder was empty. In the opinion of doctor, death had occurred due to shock and hemorrhage as a result of anti mortem injuries. PW-3 prepared postmortem report Ex.Ka-6 and handed over dead body after duly sealing the same along with clothes of deceased and necessary documents to Constables who had brought the corpse.
7. After conclusion of investigation, charge-sheet Ex.Ka-14 against accused-appellant under Section 302 IPC was submitted in the Court of Chief Judicial Magistrate, Hathras on 06.09.2010 who took cognizance of the offence. The offence being triable by Court of Sessions, case was committed to Sessions Court on 01.10.2010. The case was transferred to Additional Sessions Judge, Court No.2, Hathras who framed charge against accused-appellant under Section 302 IPC on 28.04.2011 as under :
^^eSa ftrsUnz dqekj] vij l= U;k;k/kh'k dksVZ la0&2 gkFkjl vki vfHk;qDr 1- dkyhpju ds fo:) fuEu vkjksi yxkrk gwW%& izFke%& ;g fd fnukad 2@3-8-2010 dks le; djhc 12 cts vk/kh jkf= LFkku xzke xkjox<+h lhekUrxZr Fkkuk lkluh ftyk gkFkjl dh lhek esa vkius viuh iRuh Jherh fdjunsoh dh lksrs le; QkoM+s ls xnZu dkVdj gR;k dj nhA bl izdkj vkius /kkjk&302 Hkk-n-la- ds rgr n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA ,rn~}kjk vkidks funsZf'kr fd;k tkrk gS fd mDr vkjksi esa vkidk fopkj.k bl U;k;ky; }kjk fd;k tk,xkA** "I, Jitendra Kumar, Additional Sessions Judge, Court No. 2, Hathras charge you accused
1. Kalicharan with following charges :-
Firstly, that you on 2/3.8.2010 at about 12 night in Village Garavgadhi under Police Station Sasni, District Hathras committed murder of his wife Smt. Kiran Devi by chopping her neck with spade while she was sleeping. Thereby you have committed an offence punishable under Section 302 IPC which is within cognizance of this Court.
It is hereby directed that for the aforesaid charge your trial shall be conducted by this Court." (Emphasis Added) (English Translation by Court) Accused-appellant pleaded not guilty and claimed to be tried.
8. Sessions Trial ultimately came to be heard by Additional Sessions Judge, Court No. 4, Hathras
9. In order to substantiate its case, prosecution has examined total five witnesses out of whom, Informant PW-1 Mukesh Kumar and his son PW-2 Master Sachin are witnesses of fact and deposed ocular account of occurrence, motive, recovery of material exhibits and preparation of various recovery memos. PW-3 Dr. Neeraj Agarwal, PW-4 Constable Mahavir Singh and PW-5 S.I. R.N. Singh are formal witnesses. PW-3 Dr. Neeraj Agarwal had conducted autopsy on the dead body of deceased Smt. Kiran Devi and has proved postmortem report Ex.Ka-6. PW-4 Constable Mahavir Singh had registered FIR and has proved Chik FIR Ex.Ka-7, copy of G.D. Entry Ex.Ka-8. PW-5 is I.O. S.H.O., R.N. Singh who has proved site plan Ex.Ka-9, recovery memo Ex.Ka-3 in respect of bloodstained and simple earth, Ex.Ka-4, recovery memo with respect to broken pieces of bangles, Inquest Ex.Ka-2, Ex.Ka-5 recovery memo regarding weapon used in the crime and charge-sheet Ex.Ka-14. He also proved material exhibits simple earth, bloodstained earth, pieces of bangles and spade, Material Exhibits No. 1, 2, 3 and 4, respectively.
10. On closure of prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded in which he has stated that he is innocent, entire prosecution case is false and he has been falsely implicated in the case. Accused-appellant did not adduce any documentary or oral evidence in support of his defence.
11. Trial Court after hearing counsel for parties and appreciating entire evidence on record has found that prosecution version is that accused-appellant murdered his wife in the midnight on 02/03.08.2010 while she was sleeping by chopping her neck with spade. Master Sachin, son of accused-appellant is the sole eye-witness of entire incident. He narrated entire incident to his uncle i.e. Informant, Mukesh Kumar, in the morning and, thereafter, FIR was lodged and police came into action. Therefore, ocular testimony of fact that accused-appellant killed his wife by chopping her neck with spade is that of Master Sachin, PW-2, who was 10 years old on 19.10.2011 when his statement was recorded by Trial Court and about 9 years on the date of incident, since Report was lodged by Informant Mukesh Kumar, brother of accused, after receiving information from his nephew in the morning. Time of registration of FIR is 08:30 AM on 03.08.2010. Distance of village of appellant to Police Station is about 9 Kms and in these circumstances, FIR cannot be said to be belated by any means. Trial Court found ocular testimony of PW-2, due creditworthy, reliable and clean. Certain contradictions pointed out by defence were not found sufficient to reject, ocular testimony of PW-2, Master Sachin, who was a minor and his presence in the night with parents is quite natural and, therefore, he was a natural witness of entire incident. Even otherwise, there was no reason for the minor son to depose against his father. Discovery of weapon of murder i.e. spade on the information given by accused-appellant while he was in custody, has also been found reliable, admissible and creditworthy evidence. Medical report i.e. postmortem, proved by Dr. Neeraj Agarwal, PW-3, corroborated prosecution version that she was murdered by chopping off her neck with spade. Forensic report in respect of spade also found human blood thereon and since weapon of crime was discovered on the information given by accused-appellant while in custody, logical inference was that blood found on spade was that of deceased and this was also an evidence against accused-appellant. Court below also noted conduct of accused-appellant that he was absconding and arrested by police on the next date, though, in normal course, since his wife was murdered, he ought to have been the first person to lodge report and come to police station for investigation etc. In the entirety of facts and circumstances and considering the evidence, Trial Court has recorded its satisfaction that prosecution successfully proved its case beyond reasonable doubt and, consequently held accused-appellant guilty of the offence under Section 302 IPC. Trial Court, therefore, has convicted and sentenced accused-appellant vide judgment under appeal and dissatisfied therewith, this jail appeal has been filed by accused-appellant through Superintendent of Jail, Aligarh.
12. We have heard Miss. Nishi Mehrotra, learned Amicus Curiae appearing for appellant, Sri Udit Chandra, learned A.G.A. for State and have gone through the entire record.
13. Learned Amicus Curiae appearing for appellant has challenged conviction of accused-appellant advancing her submissions in the following manner :
(i) Incident allegedly took place at 12:30 in the midnight but report was lodged at 08:30 in the morning and there is no proper and valid explanation of delay.
(ii) Prosecution story is that PW-2 minor son of accused-appellant and deceased, was eye-witness to incident and had seen that accused-appellant chopped off neck of his wife in the midnight at 12:30 and, thereafter ran away but PW-2 did not inform neighbors or his uncle who were residing in the house in vicinity of accused-appellant and it is unbelievable that PW-2 would have passed entire night with a dead body and that too being alone in the entire house.
(iii) PW-1 claimed that he was informed of the incident by PW-2 in the morning when PW-2 woke him up at around 6 or 7 AM but PW-2 stated that he informed the incident to his uncle Vinod in the morning and not PW-1.
(iv) There was no source of light in the night at the place where incident took place, hence, it cannot be believed that PW-2 could have seen the incident clearly and identified accused-appellant correctly.
(v) Discovery of weapon of crime has not been proved and seriously doubtful since recovery memo did not contain signatures or thumb impression of accused-appellant.
(vi) There is no forensic examination that blood found on spade (alleged weapon of crime) is that of deceased and no examination has been made on this aspect.
(vii) PW-2 after death of his mother and accused-appellant being in jail, was residing with his grand-mother and, therefore, under the influence of Informant and Grand-Parents. He was tutored to give false statement against accused-appellant.
14. On the contrary, learned A.G.A. contended that this is a clear case of hit and run where accused has murdered his wife; his minor son is the eye-witness to entire incident; factum that accused-appellant ran away from the house and was later on arrested by police itself shows that appellant had committed crime; no evidence to show enmity either with brother Mukesh i.e. PW-1 or grand-parent of PW-2 i.e. mother of accused-appellant has been produced and evidence of PW-1 and PW-2 being close relative of accused-appellant himself is reliable and credible since there is no reason to doubt their genuineness and credibility when no otherwise evidence has come on record. He submitted that accused-appellant has rightly been punished and judgment of Trial Court warrants no interference.
15. The first question which we have to examine is the time of incident. PW-2, minor son of accused-appellant i.e. Master Sachin has stated that about a year back, he was sleeping with his mother and younger brother under a tinshed in the house. In cross-examination, he said that in the early night, all, i.e. mother, father and children had dinner together and went to sleep. A lamp was lighted in the evening and it continued to be lighted when they slept. Exact time of taking dinner, he could not tell and it is nobody's case that living style of accused-appellant was such that there must have been a watch on the wall; or, members of family otherwise used to notice time when they used to go for their routine work. However, he has proved in cross-examination that all went to sleep after taking dinner. On the question that all were sleeping together and at the same place, we find no cross-examination at all and therefore, whatever stated by PW-2 in examination-in-chief, remains uncontroverted and there is no reason to disbelieve it. Accused-appellant is a labour. This fact has also been stated by PW-2 and therefrom living standard of accused-appellant is quite understandable. In the night, accused-appellant hit on the neck of his wife and when his wife who was in sleep, shivered her leg and touched PW-2, he woke up. He immediately got his younger brother woken up from sleep and saw his mother was bleeding and father standing with a spade in his hand. Father i.e. accused-appellant threatened PW-2 that he should silently sleep and not to tell to anyone. Getting frightened PW-2 remained silent and, thereafter, accused-appellant ran away. In cross-examination, PW-2 said that after having seen the incident, he went to sleep and woke up in morning and thereafter, went to his uncle whose house is just a small lane (खड़ंजा) away from the house of accused-appellant. On these aspects, there is much cross-examination but nothing substantial has been extracted by defence from otherwise ocular and reliable testimony of PW-2 clearly implicating accused-appellant of having committed crime of murder of his wife. Much stress has been placed on the fact that in FIR, time of incident has been given as 1 or 2 AM and information was given by PW-2 to PW-1 in the early morning at about 6-7 AM and it cannot be believed that two minor children stayed with dead body of their mother for about 4-5 hours when she was bleeding. Here, we notice that time has been mentioned by Informant after receiving information from PW-2. PW-2 had no occasion to notice exact time and, therefore, in the mention of time by Informant naturally there is a guess work but fact remains that incident happened before 6 or 7 AM on 03.08.2010. Postmortem was conducted at around 03:00 PM on the same date and Doctor who conducted autopsy has deposed as PW-3 that death must have taken place about half a days back which comes around 03:00 AM in the morning. Thus, on the mere fact that time of incident given in FIR and also in the testimony of PW-1 as 1 or 2 AM or even 12:30 AM, it cannot be said that this time should be taken as a standing pillar to test the veracity of other evidence. This time is obviously assumed by PW-1 after receiving information from his minor nephew who could not have been in a position to give exact time. Moreover, it is not the case of defence that there was a Clock watch available in the house and in the night, PW-2 must have noticed the time of incident.
16. Incident clearly happened in the early morning on 03.08.2010 and within a few hours, report was also lodged. PW-2 informed his uncle in the early morning i.e. 6 or 7 AM which also shows that incident must have occurred a little early thereto, therefore, veracity of testimony cannot be doubted only on a conjecture that two minor children could not have stayed with dead body of their mother for a long time of 5-6 hours and it is improbable. Oral testimony of PW-1, in our view, is wholly reliable, clean and admits of no such contradiction, so as to discredit this witness. Trial Court has rightly relied on his testimony to convict accused-appellant. PW-1 is not an eye witness of incident but a witness to the fact that incident took place prior to 6 or 7 AM in the morning and after having seen the dead body of Smt. Kiran Devi (bhabhi of PW-1), he went to lodge report to Police Station. PW-1 is also a witness to discovery of weapon of crime i.e. spade and he has proved Furd memo (Ex.Ka-5). He has clearly described the manner in which information is given by accused-appellant and he got a discovery of spade used in the crime which was found from the field of Bajra when he was under arrest.
17. The testimony of an eye-witness merely because he happens to be a relative of deceased cannot be discarded as "Close Relative" would be the last one to screen out the real culprit and implicate innocent person, as per the Apex Court in the case of Dilip Singh Vs. State of Punjab AIR 1953 S.C. 364. This aspect of the mater has further been clarified by the Apex Court in the case of Dharnidhar Vs. State of Uttar Pradesh (2010) 7 SCC page 759 as follows:
"12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim."
18. It is true that admission of guilt by accused-appellant before police is not admissible but factum is that weapon of crime i.e spade was discovered on the information received from accused-appellant when he was in custody and it is admissible under Section 27 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872") and this fact further corroborates that accused-appellant has committed said crime.
19. Section 27 of Act, 1872 provides for how much of information received from accused who is in custody of police may be proved. It reads as under:
"27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
20. Aforesaid provision is by way of proviso to Sections 25 and 26 of Act, 1872. An statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused.
21. In Delhi Administration vs. Bal Krishan and Ors., 1972(4) SCC 659 Court said that Section 27 permits proof of so much of information which is given by persons accused of an offence when in custody of a Police Officer as relates distinctly to the fact thereby discovered, irrespective of whether such information amounts to a confession or not. Sections 25 and 26 of Act, 1872 provides that no confession made to a Police Officer whether in custody or not can be proved as against the accused. Section 27, therefore, is proviso to above Sections and statement even by way of confession, which distinctly relates to the fact discovered is admissible as evidence against accused in the circumstances stated in Section 27.
22. In Mohmed Inayatullah vs. The State of Maharashtra, 1976(1) SCC 828 Court observed that though interpretation and scope of Section 27 has been subject of consideration in several authoritative pronouncement but its application to concrete cases is not always free from difficulty. In order to make its application swift and convenient Court considered the provision again and said:
"12. The expression "Provided that" together with the phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section in to operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly relates to the fact thereby discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered."
23. Idea behind Section 27 has been explained by Court in para 20 of judgment in Bodh Raj @ Bodha and Ors. vs. State of Jammu and Kashmir (supra) as under:
"20. If all that is required to lift the ban be the inclusion in the confession information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-exculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (see State of Maharashtra v. Danu Gopinath Shirde and Ors. 2000 CriLJ 2301). No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given."
(Emphasis Added)
24. Similar issue has been considered in a recent judgment of Supreme Court in Criminal Appeal No. 1333 of 2009, Raju Manjhi vs. State of Bihar, decided on 02.08.2018. Therein the Court held that Act, 1872 provides that even when an accused being in the custody of police makes a statement that reveals some information leading to the recovery of incriminating material or discovery of any fact concerning to the alleged offence, such statement can be proved against him. Court held that recoveries of used polythene pouches of wine, money, clothes, chains and bangle were all made at the disclosure by the accused which corroborates his confessional statement and proves his guilt and such confessional statement stands and satisfies the test of Section 27 of Act, 1872.
25. Much argument has been advanced by learned counsel for appellant that broken bangle pieces were found around one feet from dead body which shows that there must have been some resistance by deceased and, therefore, prosecution story that she was attacked when sleeping is not correct. However, we find no force in the submission for the reason that when Smt. Kiran Devi was attacked and if bangles were broken, distance of one feet is nothing since dead body was on a cot. In the absence of any injury on any other parts of the body, and a single incised wound on the neck chopping it off shows that it was done while she was in sleep and there was no occasion for resistance.
26. So far as the medical testimony is concerned, postmortem report prove death of Smt. Kiran Devi due to ante mortem injury which is a single incised wound cutting the neck upto back including neck bone and this fortify and corroborate the prosecution version.
27. In the backdrop of these evidence, we find further fact that accused-appellant who is husband of deceased and father of two minor children, absconded from the house. He was not present when PW-1 reached the house and, thereafter, when police reached the house. It is also true that he was arrested subsequently elsewhere. He is not the person who gave any information to police about the above crime. All these facts support prosecution version that he is the person who committed this crime. Even the statement of accused-appellant recorded under Section 313 Cr.P.C., there is virtually a complete denial. Accused-appellant has not explained as to where he was in the night and why he did not inform police of murder of his wife. If he was present in house, he would have been the first and natural person for giving this information. Though, statement under Section 313 Cr.P.C. is not a substantial evidence but from the reply given in respect of questions put to accused regarding the facts and evidence which are to be relied against him, the reply given by such a person showing his conduct can be considered to be corroborating evidence with prosecution evidence.
28. In the entirety of the facts and circumstances, we are satisfied that prosecution has successfully proved its case beyond reasonable doubt against accused-appellant and has rightly convicted him for having committed an offence under Section 302 IPC.
29. So far as sentence of accused-appellant is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
30. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
31. Hence, applying the principles laid down by Supreme Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellant, Kali Charan by Trial Court in impugned judgment and order is not excessive or exorbitant and no question arises to interfere in the matter on the point of punishment imposed upon him.
32. In view of above discussion, the appeal is dismissed. Impugned judgement and order dated 11.04.2012 passed by Sri Sanjay Kumar, Additional Sessions Judge, Court No. 4, Hathras in Sessions Trial No. 297 of 2010 relating to Case Crime No. 340 of 2010, P.S. Sasni, District Hathras awarding sentence of imprisonment for life to accused-appellant, Kali Charan for the offence under Sections 302 IPC, is maintained and confirmed.
33. Lower Court record along with the copy of this judgment be sent back immediately to Court concerned for necessary compliance. A Copy of this judgment be also sent to accused-appellant through Jail Superintendent concerned for intimation forthwith. Compliance report be also submitted to this Court.
34. Miss. Nishi Mehrotra, learned Amicus Curiae for appellant has assisted the Court very diligently. We provide that she shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Miss. Nishi Mehrotra, Amicus CuriA.F.R. Reserved on 02.01.2019 Delivered on 31.01.2019 Court No. - 34 Case :- JAIL APPEAL No. - 2709 of 2012 Appellant :- Kali Charan Respondent :- State Of U.P. Counsel for Appellant :- From Jail, Nishi Mehrotra (AC) Counsel for Respondent :- A.G.A.
Hon'ble Sudhir Agarwal,J.
Hon'ble Rajendra Kumar-IV,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. This Jail Appeal under Section 383 Cr.P.C. through Superintendent of Jail, Hathras has been filed by accused-appellant, Kalicharan against judgement and order dated 11.04.2012 passed by Sri Sanjay Kumar, Additional Sessions Judge, Court No. 4, Hathras in Sessions Trial No. 297 of 2010 relating to Case Crime No. 340 of 2010, P.S. Sasni, District Hathras, convicting accused-appellant under Section 302 IPC and sentencing him to undergo life imprisonment with a fine of Rs. 5000/- and in default of payment of fine, he has to undergo further additional imprisonment of one year.
2. Factual matrix of the case as emerging from First Information Report (hereinafter referred to as "FIR") as well as material placed on record is as follows.
3. An FIR Ex.Ka-1 dated 03.08.2010 was presented in Police Station Sasni, District Mahamaya Nagar by Informant PW-1 Mukesh Kumar, alleging that in the night preceding 03.08.2010 at about 12:30 AM, Informant's real brother Kalicharan committed murder of his wife Smt. Kiran Devi by chopping her neck from back side with spade while she was sleeping under tin-shed, on apprehension of her having illicit relations with someone. As soon as, Informant's son Master Sachin aged about 9 years cried, he was silenced. After some time, accused-appellant Kalicharan fled away. On coming to know about the incident, Informant had gone to police station for furnishing information. FIR further recites that dead body of Informant's Bhabhi (elder brother's wife) was lying at his house.
4. On receipt of written report Ex.Ka-1, Chik Report Ex.Ka-7 was prepared by PW-4 Constable Mahavir Singh who registered the case under Section 302 IPC at Case Crime No. 340 of 2010. An entry of case was made in General Diary on 03.08.2010 at 08:30 AM, a copy of which is Ex.Ka-8 on record. Immediately after registration of case, investigation was undertaken by PW-5 Sri R.N. Singh, the then Station House Officer at Police Station Sasni, who took copies of written report and Chik FIR and proceeded to place of occurrence. He recorded statements of Informant, Village Chowkidar Satish Kumar, Head Moharrir and eye witnesses, namely, child witness Sachin PW-2, wife of Informant and his mother. PW-5, Investigating Officer (hereinafter referred to as "I.O."), prepared site plan Ex.Ka-9 and under his instructions, S.I. Khem Singh Jalal took sample of bloodstained and simple earth, sealed them in separate packs and prepared recovery memo Ex.Ka-3. He also prepared Inquest, took into possession broken pieces of bangles of deceased and prepared recovery memo Ex.Ka-4 in respect thereof. Weapon i.e. bloodstained spade used in the crime was recovered on pointing out of accused-appellant and taken into possession, in respect whereof, recovery memo Ex.Ka-5 was prepared. Thereafter, dead body was duly sealed and sent for postmortem to District Hospital Hathras along with letter of request Ex.Ka-11 to Chief Medical Officer and other necessary documents i.e. Challan Nash Ex.Ka-12, Photo Nash Ex.Ka-13. Thereafter, Material Exhibits i.e. Ex.1 simple earth, Ex.2 bloodstained earth, Ex.3 pieces of bangles and Ex.4 spade were sent to forensic laboratory for chemical examination.
5. Autopsy over the dead body of deceased Smt. Kiran Devi was conducted by PW-3 Dr. Neeraj Agarwal, Medical Officer, C.H.C. Sadabad, Mahamaya Nagar on 03.08.2010 at about 03:00 PM. On external examination, deceased was found of average body built, aged about 28 years, rigor mortis had passed through upper extremities and present in lower extremities. In the opinion of doctor, death had occurred about half a day before at the time of autopsy. He found following ante mortem injuries on her person :
"Incised wound 10 cm x 5 cm, bone deep on the left lateral aspect of neck, extending to the back of neck. All mucus and neck vessels were cut alongwith C3 vertebra which was also cut. Trachea was also found cut."
(Emphasis added)
6. On internal examination, spinal cord and vertebra at the level of C-3 were found cut; both chambers of heart were empty; neck vessel on left side cut; stomach contained 3 ounces pasty food material; small intestine contained semi digested food with gases; large intestine contained faecal matter with gases; gall bladder half full; both kidneys pale and urinary bladder was empty. In the opinion of doctor, death had occurred due to shock and hemorrhage as a result of anti mortem injuries. PW-3 prepared postmortem report Ex.Ka-6 and handed over dead body after duly sealing the same along with clothes of deceased and necessary documents to Constables who had brought the corpse.
7. After conclusion of investigation, charge-sheet Ex.Ka-14 against accused-appellant under Section 302 IPC was submitted in the Court of Chief Judicial Magistrate, Hathras on 06.09.2010 who took cognizance of the offence. The offence being triable by Court of Sessions, case was committed to Sessions Court on 01.10.2010. The case was transferred to Additional Sessions Judge, Court No.2, Hathras who framed charge against accused-appellant under Section 302 IPC on 28.04.2011 as under :
^^eSa ftrsUnz dqekj] vij l= U;k;k/kh'k dksVZ la0&2 gkFkjl vki vfHk;qDr 1- dkyhpju ds fo:) fuEu vkjksi yxkrk gwW%& izFke%& ;g fd fnukad 2@3-8-2010 dks le; djhc 12 cts vk/kh jkf= LFkku xzke xkjox<+h lhekUrxZr Fkkuk lkluh ftyk gkFkjl dh lhek esa vkius viuh iRuh Jherh fdjunsoh dh lksrs le; QkoM+s ls xnZu dkVdj gR;k dj nhA bl izdkj vkius /kkjk&302 Hkk-n-la- ds rgr n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA ,rn~}kjk vkidks funsZf'kr fd;k tkrk gS fd mDr vkjksi esa vkidk fopkj.k bl U;k;ky; }kjk fd;k tk,xkA** "I, Jitendra Kumar, Additional Sessions Judge, Court No. 2, Hathras charge you accused
1. Kalicharan with following charges :-
Firstly, that you on 2/3.8.2010 at about 12 night in Village Garavgadhi under Police Station Sasni, District Hathras committed murder of his wife Smt. Kiran Devi by chopping her neck with spade while she was sleeping. Thereby you have committed an offence punishable under Section 302 IPC which is within cognizance of this Court.
It is hereby directed that for the aforesaid charge your trial shall be conducted by this Court." (Emphasis Added) (English Translation by Court) Accused-appellant pleaded not guilty and claimed to be tried.
8. Sessions Trial ultimately came to be heard by Additional Sessions Judge, Court No. 4, Hathras
9. In order to substantiate its case, prosecution has examined total five witnesses out of whom, Informant PW-1 Mukesh Kumar and his son PW-2 Master Sachin are witnesses of fact and deposed ocular account of occurrence, motive, recovery of material exhibits and preparation of various recovery memos. PW-3 Dr. Neeraj Agarwal, PW-4 Constable Mahavir Singh and PW-5 S.I. R.N. Singh are formal witnesses. PW-3 Dr. Neeraj Agarwal had conducted autopsy on the dead body of deceased Smt. Kiran Devi and has proved postmortem report Ex.Ka-6. PW-4 Constable Mahavir Singh had registered FIR and has proved Chik FIR Ex.Ka-7, copy of G.D. Entry Ex.Ka-8. PW-5 is I.O. S.H.O., R.N. Singh who has proved site plan Ex.Ka-9, recovery memo Ex.Ka-3 in respect of bloodstained and simple earth, Ex.Ka-4, recovery memo with respect to broken pieces of bangles, Inquest Ex.Ka-2, Ex.Ka-5 recovery memo regarding weapon used in the crime and charge-sheet Ex.Ka-14. He also proved material exhibits simple earth, bloodstained earth, pieces of bangles and spade, Material Exhibits No. 1, 2, 3 and 4, respectively.
10. On closure of prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded in which he has stated that he is innocent, entire prosecution case is false and he has been falsely implicated in the case. Accused-appellant did not adduce any documentary or oral evidence in support of his defence.
11. Trial Court after hearing counsel for parties and appreciating entire evidence on record has found that prosecution version is that accused-appellant murdered his wife in the midnight on 02/03.08.2010 while she was sleeping by chopping her neck with spade. Master Sachin, son of accused-appellant is the sole eye-witness of entire incident. He narrated entire incident to his uncle i.e. Informant, Mukesh Kumar, in the morning and, thereafter, FIR was lodged and police came into action. Therefore, ocular testimony of fact that accused-appellant killed his wife by chopping her neck with spade is that of Master Sachin, PW-2, who was 10 years old on 19.10.2011 when his statement was recorded by Trial Court and about 9 years on the date of incident, since Report was lodged by Informant Mukesh Kumar, brother of accused, after receiving information from his nephew in the morning. Time of registration of FIR is 08:30 AM on 03.08.2010. Distance of village of appellant to Police Station is about 9 Kms and in these circumstances, FIR cannot be said to be belated by any means. Trial Court found ocular testimony of PW-2, due creditworthy, reliable and clean. Certain contradictions pointed out by defence were not found sufficient to reject, ocular testimony of PW-2, Master Sachin, who was a minor and his presence in the night with parents is quite natural and, therefore, he was a natural witness of entire incident. Even otherwise, there was no reason for the minor son to depose against his father. Discovery of weapon of murder i.e. spade on the information given by accused-appellant while he was in custody, has also been found reliable, admissible and creditworthy evidence. Medical report i.e. postmortem, proved by Dr. Neeraj Agarwal, PW-3, corroborated prosecution version that she was murdered by chopping off her neck with spade. Forensic report in respect of spade also found human blood thereon and since weapon of crime was discovered on the information given by accused-appellant while in custody, logical inference was that blood found on spade was that of deceased and this was also an evidence against accused-appellant. Court below also noted conduct of accused-appellant that he was absconding and arrested by police on the next date, though, in normal course, since his wife was murdered, he ought to have been the first person to lodge report and come to police station for investigation etc. In the entirety of facts and circumstances and considering the evidence, Trial Court has recorded its satisfaction that prosecution successfully proved its case beyond reasonable doubt and, consequently held accused-appellant guilty of the offence under Section 302 IPC. Trial Court, therefore, has convicted and sentenced accused-appellant vide judgment under appeal and dissatisfied therewith, this jail appeal has been filed by accused-appellant through Superintendent of Jail, Aligarh.
12. We have heard Miss. Nishi Mehrotra, learned Amicus Curiae appearing for appellant, Sri Udit Chandra, learned A.G.A. for State and have gone through the entire record.
13. Learned Amicus Curiae appearing for appellant has challenged conviction of accused-appellant advancing her submissions in the following manner :
(i) Incident allegedly took place at 12:30 in the midnight but report was lodged at 08:30 in the morning and there is no proper and valid explanation of delay.
(ii) Prosecution story is that PW-2 minor son of accused-appellant and deceased, was eye-witness to incident and had seen that accused-appellant chopped off neck of his wife in the midnight at 12:30 and, thereafter ran away but PW-2 did not inform neighbors or his uncle who were residing in the house in vicinity of accused-appellant and it is unbelievable that PW-2 would have passed entire night with a dead body and that too being alone in the entire house.
(iii) PW-1 claimed that he was informed of the incident by PW-2 in the morning when PW-2 woke him up at around 6 or 7 AM but PW-2 stated that he informed the incident to his uncle Vinod in the morning and not PW-1.
(iv) There was no source of light in the night at the place where incident took place, hence, it cannot be believed that PW-2 could have seen the incident clearly and identified accused-appellant correctly.
(v) Discovery of weapon of crime has not been proved and seriously doubtful since recovery memo did not contain signatures or thumb impression of accused-appellant.
(vi) There is no forensic examination that blood found on spade (alleged weapon of crime) is that of deceased and no examination has been made on this aspect.
(vii) PW-2 after death of his mother and accused-appellant being in jail, was residing with his grand-mother and, therefore, under the influence of Informant and Grand-Parents. He was tutored to give false statement against accused-appellant.
14. On the contrary, learned A.G.A. contended that this is a clear case of hit and run where accused has murdered his wife; his minor son is the eye-witness to entire incident; factum that accused-appellant ran away from the house and was later on arrested by police itself shows that appellant had committed crime; no evidence to show enmity either with brother Mukesh i.e. PW-1 or grand-parent of PW-2 i.e. mother of accused-appellant has been produced and evidence of PW-1 and PW-2 being close relative of accused-appellant himself is reliable and credible since there is no reason to doubt their genuineness and credibility when no otherwise evidence has come on record. He submitted that accused-appellant has rightly been punished and judgment of Trial Court warrants no interference.
15. The first question which we have to examine is the time of incident. PW-2, minor son of accused-appellant i.e. Master Sachin has stated that about a year back, he was sleeping with his mother and younger brother under a tinshed in the house. In cross-examination, he said that in the early night, all, i.e. mother, father and children had dinner together and went to sleep. A lamp was lighted in the evening and it continued to be lighted when they slept. Exact time of taking dinner, he could not tell and it is nobody's case that living style of accused-appellant was such that there must have been a watch on the wall; or, members of family otherwise used to notice time when they used to go for their routine work. However, he has proved in cross-examination that all went to sleep after taking dinner. On the question that all were sleeping together and at the same place, we find no cross-examination at all and therefore, whatever stated by PW-2 in examination-in-chief, remains uncontroverted and there is no reason to disbelieve it. Accused-appellant is a labour. This fact has also been stated by PW-2 and therefrom living standard of accused-appellant is quite understandable. In the night, accused-appellant hit on the neck of his wife and when his wife who was in sleep, shivered her leg and touched PW-2, he woke up. He immediately got his younger brother woken up from sleep and saw his mother was bleeding and father standing with a spade in his hand. Father i.e. accused-appellant threatened PW-2 that he should silently sleep and not to tell to anyone. Getting frightened PW-2 remained silent and, thereafter, accused-appellant ran away. In cross-examination, PW-2 said that after having seen the incident, he went to sleep and woke up in morning and thereafter, went to his uncle whose house is just a small lane (खड़ंजा) away from the house of accused-appellant. On these aspects, there is much cross-examination but nothing substantial has been extracted by defence from otherwise ocular and reliable testimony of PW-2 clearly implicating accused-appellant of having committed crime of murder of his wife. Much stress has been placed on the fact that in FIR, time of incident has been given as 1 or 2 AM and information was given by PW-2 to PW-1 in the early morning at about 6-7 AM and it cannot be believed that two minor children stayed with dead body of their mother for about 4-5 hours when she was bleeding. Here, we notice that time has been mentioned by Informant after receiving information from PW-2. PW-2 had no occasion to notice exact time and, therefore, in the mention of time by Informant naturally there is a guess work but fact remains that incident happened before 6 or 7 AM on 03.08.2010. Postmortem was conducted at around 03:00 PM on the same date and Doctor who conducted autopsy has deposed as PW-3 that death must have taken place about half a days back which comes around 03:00 AM in the morning. Thus, on the mere fact that time of incident given in FIR and also in the testimony of PW-1 as 1 or 2 AM or even 12:30 AM, it cannot be said that this time should be taken as a standing pillar to test the veracity of other evidence. This time is obviously assumed by PW-1 after receiving information from his minor nephew who could not have been in a position to give exact time. Moreover, it is not the case of defence that there was a Clock watch available in the house and in the night, PW-2 must have noticed the time of incident.
16. Incident clearly happened in the early morning on 03.08.2010 and within a few hours, report was also lodged. PW-2 informed his uncle in the early morning i.e. 6 or 7 AM which also shows that incident must have occurred a little early thereto, therefore, veracity of testimony cannot be doubted only on a conjecture that two minor children could not have stayed with dead body of their mother for a long time of 5-6 hours and it is improbable. Oral testimony of PW-1, in our view, is wholly reliable, clean and admits of no such contradiction, so as to discredit this witness. Trial Court has rightly relied on his testimony to convict accused-appellant. PW-1 is not an eye witness of incident but a witness to the fact that incident took place prior to 6 or 7 AM in the morning and after having seen the dead body of Smt. Kiran Devi (bhabhi of PW-1), he went to lodge report to Police Station. PW-1 is also a witness to discovery of weapon of crime i.e. spade and he has proved Furd memo (Ex.Ka-5). He has clearly described the manner in which information is given by accused-appellant and he got a discovery of spade used in the crime which was found from the field of Bajra when he was under arrest.
17. The testimony of an eye-witness merely because he happens to be a relative of deceased cannot be discarded as "Close Relative" would be the last one to screen out the real culprit and implicate innocent person, as per the Apex Court in the case of Dilip Singh Vs. State of Punjab AIR 1953 S.C. 364. This aspect of the mater has further been clarified by the Apex Court in the case of Dharnidhar Vs. State of Uttar Pradesh (2010) 7 SCC page 759 as follows:
"12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim."
18. It is true that admission of guilt by accused-appellant before police is not admissible but factum is that weapon of crime i.e spade was discovered on the information received from accused-appellant when he was in custody and it is admissible under Section 27 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872") and this fact further corroborates that accused-appellant has committed said crime.
19. Section 27 of Act, 1872 provides for how much of information received from accused who is in custody of police may be proved. It reads as under:
"27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
20. Aforesaid provision is by way of proviso to Sections 25 and 26 of Act, 1872. An statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused.
21. In Delhi Administration vs. Bal Krishan and Ors., 1972(4) SCC 659 Court said that Section 27 permits proof of so much of information which is given by persons accused of an offence when in custody of a Police Officer as relates distinctly to the fact thereby discovered, irrespective of whether such information amounts to a confession or not. Sections 25 and 26 of Act, 1872 provides that no confession made to a Police Officer whether in custody or not can be proved as against the accused. Section 27, therefore, is proviso to above Sections and statement even by way of confession, which distinctly relates to the fact discovered is admissible as evidence against accused in the circumstances stated in Section 27.
22. In Mohmed Inayatullah vs. The State of Maharashtra, 1976(1) SCC 828 Court observed that though interpretation and scope of Section 27 has been subject of consideration in several authoritative pronouncement but its application to concrete cases is not always free from difficulty. In order to make its application swift and convenient Court considered the provision again and said:
"12. The expression "Provided that" together with the phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section in to operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly relates to the fact thereby discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered."
23. Idea behind Section 27 has been explained by Court in para 20 of judgment in Bodh Raj @ Bodha and Ors. vs. State of Jammu and Kashmir (supra) as under:
"20. If all that is required to lift the ban be the inclusion in the confession information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-exculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (see State of Maharashtra v. Danu Gopinath Shirde and Ors. 2000 CriLJ 2301). No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given."
(Emphasis Added)
24. Similar issue has been considered in a recent judgment of Supreme Court in Criminal Appeal No. 1333 of 2009, Raju Manjhi vs. State of Bihar, decided on 02.08.2018. Therein the Court held that Act, 1872 provides that even when an accused being in the custody of police makes a statement that reveals some information leading to the recovery of incriminating material or discovery of any fact concerning to the alleged offence, such statement can be proved against him. Court held that recoveries of used polythene pouches of wine, money, clothes, chains and bangle were all made at the disclosure by the accused which corroborates his confessional statement and proves his guilt and such confessional statement stands and satisfies the test of Section 27 of Act, 1872.
25. Much argument has been advanced by learned counsel for appellant that broken bangle pieces were found around one feet from dead body which shows that there must have been some resistance by deceased and, therefore, prosecution story that she was attacked when sleeping is not correct. However, we find no force in the submission for the reason that when Smt. Kiran Devi was attacked and if bangles were broken, distance of one feet is nothing since dead body was on a cot. In the absence of any injury on any other parts of the body, and a single incised wound on the neck chopping it off shows that it was done while she was in sleep and there was no occasion for resistance.
26. So far as the medical testimony is concerned, postmortem report prove death of Smt. Kiran Devi due to ante mortem injury which is a single incised wound cutting the neck upto back including neck bone and this fortify and corroborate the prosecution version.
27. In the backdrop of these evidence, we find further fact that accused-appellant who is husband of deceased and father of two minor children, absconded from the house. He was not present when PW-1 reached the house and, thereafter, when police reached the house. It is also true that he was arrested subsequently elsewhere. He is not the person who gave any information to police about the above crime. All these facts support prosecution version that he is the person who committed this crime. Even the statement of accused-appellant recorded under Section 313 Cr.P.C., there is virtually a complete denial. Accused-appellant has not explained as to where he was in the night and why he did not inform police of murder of his wife. If he was present in house, he would have been the first and natural person for giving this information. Though, statement under Section 313 Cr.P.C. is not a substantial evidence but from the reply given in respect of questions put to accused regarding the facts and evidence which are to be relied against him, the reply given by such a person showing his conduct can be considered to be corroborating evidence with prosecution evidence.
28. In the entirety of the facts and circumstances, we are satisfied that prosecution has successfully proved its case beyond reasonable doubt against accused-appellant and has rightly convicted him for having committed an offence under Section 302 IPC.
29. So far as sentence of accused-appellant is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
30. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
31. Hence, applying the principles laid down by Supreme Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellant, Kali Charan by Trial Court in impugned judgment and order is not excessive or exorbitant and no question arises to interfere in the matter on the point of punishment imposed upon him.
32. In view of above discussion, the appeal is dismissed. Impugned judgement and order dated 11.04.2012 passed by Sri Sanjay Kumar, Additional Sessions Judge, Court No. 4, Hathras in Sessions Trial No. 297 of 2010 relating to Case Crime No. 340 of 2010, P.S. Sasni, District Hathras awarding sentence of imprisonment for life to accused-appellant, Kali Charan for the offence under Sections 302 IPC, is maintained and confirmed.
33. Lower Court record along with the copy of this judgment be sent back immediately to Court concerned for necessary compliance. A Copy of this judgment be also sent to accused-appellant through Jail Superintendent concerned for intimation forthwith. Compliance report be also submitted to this Court.
34. Miss. Nishi Mehrotra, learned Amicus Curiae for appellant has assisted the Court very diligently. We provide that she shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Miss. Nishi Mehrotra, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
Order Date :- 31.01.2019 Siddhant Sahuae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
Order Date :- 31.01.2019 Siddhant Sahu of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-exculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (see State of Maharashtra v. Danu Gopinath Shirde and Ors. 2000 CriLJ 2301). No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given."
(Emphasis Added)
24. Similar issue has been considered in a recent judgment of Supreme Court in Criminal Appeal No. 1333 of 2009, Raju Manjhi vs. State of Bihar, decided on 02.08.2018. Therein the Court held that Act, 1872 provides that even when an accused being in the custody of police makes a statement that reveals some information leading to the recovery of incriminating material or discovery of any fact concerning to the alleged offence, such statement can be proved against him. Court held that recoveries of used polythene pouches of wine, money, clothes, chains and bangle were all made at the disclosure by the accused which corroborates his confessional statement and proves his guilt and such confessional statement stands and satisfies the test of Section 27 of Act, 1872.
25. Much argument has been advanced by learned counsel for appellant that broken bangle pieces were found around one feet from dead body which shows that there must have been some resistance by deceased and, therefore, prosecution story that she was attacked when sleeping is not correct. However, we find no force in the submission for the reason that when Smt. Kiran Devi was attacked and if bangles were broken, distance of one feet is nothing since dead body was on a cot. In the absence of any injury on any other parts of the body, and a single incised wound on the neck chopping it off shows that it was done while she was in sleep and there was no occasion for resistance.
26. So far as the medical testimony is concerned, postmortem report prove death of Smt. Kiran Devi due to ante mortem injury which is a single incised wound cutting the neck upto back including neck bone and this fortify and corroborate the prosecution version.
27. In the backdrop of these evidence, we find further fact that accused-appellant who is husband of deceased and father of two minor children, absconded from the house. He was not present when PW-1 reached the house and, thereafter, when police reached the house. It is also true that he was arrested subsequently elsewhere. He is not the person who gave any information to police about the above crime. All these facts support prosecution version that he is the person who committed this crime. Even the statement of accused-appellant recorded under Section 313 Cr.P.C., there is virtually a complete denial. Accused-appellant has not explained as to where he was in the night and why he did not inform police of murder of his wife. If he was present in house, he would have been the first and natural person for giving this information. Though, statement under Section 313 Cr.P.C. is not a substantial evidence but from the reply given in respect of questions put to accused regarding the facts and evidence which are to be relied against him, the reply given by such a person showing his conduct can be considered to be corroborating evidence with prosecution evidence.
28. In the entirety of the facts and circumstances, we are satisfied that prosecution has successfully proved its case beyond reasonable doubt against accused-appellant and has rightly convicted him for having committed an offence under Section 302 IPC.
29. So far as sentence of accused-appellant is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
30. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
31. Hence, applying the principles laid down by Supreme Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellant, Kali Charan by Trial Court in impugned judgment and order is not excessive or exorbitant and no question arises to interfere in the matter on the point of punishment imposed upon him.
32. In view of above discussion, the appeal is dismissed. Impugned judgement and order dated 11.04.2012 passed by Sri Sanjay Kumar, Additional Sessions Judge, Court No. 4, Hathras in Sessions Trial No. 297 of 2010 relating to Case Crime No. 340 of 2010, P.S. Sasni, District Hathras awarding sentence of imprisonment for life to accused-appellant, Kali Charan for the offence under Sections 302 IPC, is maintained and confirmed.
33. Lower Court record along with the copy of this judgment be sent back immediately to Court concerned for necessary compliance. A Copy of this judgment be also sent to accused-appellant through Jail Superintendent concerned for intimation forthwith. Compliance report be also submitted to this Court.
34. Miss. Nishi Mehrotra, learned Amicus Curiae for appellant has assisted the Court very diligently. We provide that she shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Miss. Nishi Mehrotra, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
Order Date :- 31.01.2019 Siddhant Sahu