Jail appeal by a husband convicted of murdering his wife by chopping her neck with a spade, the sole eye-witness being his minor son. Rejecting challenges to the child's testimony, the alleged delay in the FIR, the recovery of the weapon and the medical evidence, the court upheld the conviction and the life sentence.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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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.)
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someone. As soon as, Informant's son Master Sachin aged about 9 years cried, he was silenced. After some time, accusedappellant 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.
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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.
“ 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.
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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 accusedappellant under Section 302 IPC on 28.04.2011 as under :
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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.
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Sessions Judge, Court No. 4, Hathras
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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 accusedappellant 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 accusedappellant 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
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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.
(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 accusedappellant 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
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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 GrandParents. He was tutored to give false statement against accused-appellant.
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submitted that accused-appellant has rightly been punished and judgment of Trial Court warrants no interference.
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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.
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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.
"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
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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.”
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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.
“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
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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.”
“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,
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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)
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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.
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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.
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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 ].
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be sent back immediately to Court concerned for necessary compliance. A Copy of this judgment be also sent to accusedappellant through Jail Superintendent concerned for intimation forthwith. Compliance report be also submitted to this Court.
Order Date :- 31.01.2019 Siddhant Sahu
3 issues framed by the court
Whether the conviction under Section 302 IPC can be sustained on the sole ocular testimony of the accused's minor son, the only eye-witness to the murder.
Whether the discovery of the spade on information given by the accused while in custody is admissible and reliable under Section 27 of the Evidence Act, 1872.
Whether the sentence of life imprisonment awarded by the trial court is excessive or warrants interference.
Colour shows how this judgement treated each authority
Dilip Singh v. State of PunjabRelied on¶17
Dilip Singh Vs. State of Punjab AIR 1953 S.C. 364 · Who else cites this
Dharnidhar v. State of Uttar PradeshRelied on¶17
Dharnidhar Vs. State of Uttar Pradesh (2010) 7 SCC page 759 · Who else cites this
Delhi Administration v. Bal KrishanRelied on¶21
Delhi Administration vs. Bal Krishan and Ors., 1972(4) SCC 659 · Who else cites this
Mohmed Inayatullah v. State of MaharashtraRelied on¶22
Mohmed Inayatullah vs. The State of Maharashtra, 1976(1) SCC 828 · Who else cites this
Bodh Raj @ Bodha v. State of Jammu and KashmirRelied on¶23
Bodh Raj @ Bodha and Ors. vs. State of Jammu and Kashmir (supra)
Raju Manjhi v. State of BiharRelied on¶24
Criminal Appeal No. 1333 of 2009, Raju Manjhi vs. State of Bihar
Sumer Singh v. Surajbhan SinghReferred¶30
Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323 · Who else cites this
Sham Sunder v. PuranReferred¶30
Sham Sunder vs. Puran, (1990) 4 SCC 731 · Who else cites this
M.P. v. SaleemReferred¶30
M.P. v. Saleem, (2005) 5 SCC 554 · Who else cites this
Ravji v. State of RajasthanReferred¶30
Ravji v. State of Rajasthan, (1996) 2 SCC 175 · Who else cites this
5 provisions across 3 enactments
Kali Charan
State Of U.P.
Sudhir Agarwal
Rajendra Kumar-IV
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
