Allowed

Ashok v. State

Allahabad HC24 Oct 2019JAPL/4842/2011

Case brief

AI extract

What is this about?

In a murder appeal, the High Court held that the prosecution failed to prove its case beyond reasonable doubt due to the lack of corroboration and contradictions in the only eyewitness testimony. The Court set aside the conviction, released the appellant, and directed personal bond. It relied on precedents establishing that conviction on solitary testimony requires high reliability.

What did the court decide?

Impugned judgment dated 13.07.2011 set aside; appellant released forthwith if not wanted in other crime; directed to furnish personal bond and two sureties effective for six months.

Ashok Vs State — Murder and Culpable Homicide | Allahabad HC (2019)

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A.F.R. Reserved on 29.04.2019

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Delivered on 24.10.2019

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Court No. - 34

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Case :- JAIL APPEAL No. - 4842 of 2011 Appellant :- Ashok Respondent :- State Counsel for Appellant :- From Jail,Noor Mohammad,Uttar Kumar Goswami,Yogesh Srivastava Counsel for Respondent :- Ratan Singh (A. G. A.)

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Hon'ble Sudhir Agarwal, J. Hon'ble Rajendra Kumar-IV, J.

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(Delivered by Hon'ble Rajendra Kumar-IV, J.)

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This jail appeal under Section 383 Cr.P.C. has been filed by accused-appellant Ashok through Superintendent of District Jail, Ghaziabad against judgment and order dated 13.07.2011 passed by Sri Mohammad Ibrahim, Additional District and Sessions Judge, Court No. 05, Gautambudh Nagar in Session Trial No. 441 of 2010, (State versus Ashok), Crime No.450 of 2010, Police Station Kasna, District Gautam Budh Nagar, under Section 302 IPC. By the impugned judgment accusedappellant has been convicted under Section 302 IPC and sentenced to undergo life imprisonment with a fine of Rs.5000/-. In the event of default in payment of fine, he has to undergo further six months imprisonment.

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Prosecution case in short is that informant, PW-1, Indrajeet @ Pintu resident of Village Parwana, Police Station Khanpur, District Bulandsahar, was residing in Sirsa, Police Station Greater Noida, District Gautam Budh Nagar. His brother (victim) Raju Sharma was engaged in service at a hotel, Tikaram, Deepu and accussed-appellant Ashok also worked in Hotel. On fateful night 03.05.2010 at about 11:00 PM there was a quarrel between accussed Ashok and Raju (victim) over making more breads. After a while, when victim Raju sat on the cot, Ashok inflicted a blow with danda, on his head, due to which Informant’s brother died. On

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receiving information in the morning of 4^th May, 2010, Informant went to the place of occurrence and found his brother dead on cot. PW-1 got a written report Ex.Ka-1 scribed by one Munna Bhai, PW-4, and presented the same to the Officer In-charge, Police Station Kasna, District Gautam Budh Nagar.

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On the basis of written report Ex.Ka-1, chick First Information Report (hereinafter referred to as “FIR”) Ex.Ka-10 was registered at case Crime No.450 of 2010, under Section 302 IPC by Constable Clerk PW-7 Jeet Singh who made an entry of case in the General Diary (hereinafter referred to as “GD”), copy whereof is Ex.Ka-11.

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PW-6 SI Ram Sewak held inquest over the dead body of deceased Raju, prepared inquest report Ex.Ka-2 and other papers relating thereto. Dead body was sealed and sent for postmortem.

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PW-3 Dr. Dinesh Mohan Saxena conducted autopsy on the dead body of Raju on 04.05.2010 at 05:10 PM and prepared postmortem report Ex.Ka-3. According to him deceased was aged about 40 years; and at the time of postmortem, Rigor mortis was present; and body of deceased was thin built. On external examination Doctor found following ante mortem injuries on the person of deceased:-

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i. Lacerated wound 3cm x 1cm left side of forehead, extending left eye brow. It is surrounded by abraded contusion 10cm x 4cm extending left side of face.

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ii. Lacerated wound 1cm x 0.5cm, left side of face 2cm medial to left ear x bone deep.

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On internal examination, left temporal bone and frontal bone were fractured; membrances were lacerated; brain were lacerated, temporal lobe, large hematoma over and in between brain; in heart some blood was present; stomach contained 150ml semisolid material.

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In the opinion of PW-3 Dr. Dinesh Mohan Saxena, victim died due

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to ante mortem head injuries. Death was possible ¾ day prior to postmortem.

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PW-9 Inspector Arun Kumar Singh, undertook investigation of case, took copy of FIR and other relevant papers relating to investigation, recorded statements of PW-7 and PW-1, proceeded to spot and visited spot, prepared site plan Ex.Ka-13, thereafter he collected blood stained, simple earth and string of cot, prepared fard thereof, Ex.Ka-12, recorded statement of PW-8. On 05.05.2010 PW-9 arrested accused-appellant at Parichowk at about 13:40 PM, recorded disclosure statement of accusedappellant and recovered danda (stick) allegedly used in the commission of offence at the pointing out of accused-appellant from the sand, prepared recovery memo thereof Ex.Ka-4 and site plan Ex.Ka-14 place of recovery of the weapon.

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PW-9 after completing entire formalities of investigation submitted charge-sheet Ex.Ka-5 against accused-appellant under Section 302 IPC in the Court concerned.

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Chief Judicial Magistrate, Gautam Budh Nagar took cognizance of offence under Section 302 IPC against accused-appellant. Case being exclusively triable by Court of Sessions, was committed to the Sessions Judge.

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Trial Court framed the charge against the accused-appellant which reads as under :-

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“eSa] ekS0 bczkghe] vij ftyk ,oa l= U;k;k/kh'k ,Q0Vh0lh0&2 xkSrecq} uxj vki vfHk;qDr v'kksd dks fuEu vkjksi ls vkjksfir djrk gwW&

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1& ;g fd fnukad 3-5-2010 dks le; 23%00 cts LFkku 'kekZ gksVy dkluk Fkkuk dkluk xkSrecq}uxj esa vkius oknh ds HkkbZ jktw ds vkSj vki vfHk;qDr ds e/; jksVh cukus ds Åij >xM+k gksus ds dkj.k mlds flj ij MaMk ekj fn;k ftlls mldh e`R;q gks

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x;hA bl izdkj vkius Hkk0n0la0 dh /kkjk 302 ds vUrxZr n.Muh; vijk/k dkfjr fd;k tks fd bl U;k;ky; ds izLkaKku esa gSA

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,rn~ }kjk vkidks funsZf'kr fd;k tkrk gS fd mijksDr vkjksi esa vkidk fopkj.k bl U;k;ky; esa fd;k tk;sxkA”

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“I, Mohd. Ibrahim, Additional District and Sessions Judge, F.T.C.-2, Gauram Budh Nagar charge you accused Ashok with the following charge:-

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Firstly - That on 03.05.2010 at about 23:00 hours consequent upon an altercation which took place between you and deceased Raju brother of informant on the issue of making bread at Sharma Hotel, Kasna, Police Station Kasna, District Gautam Budh Nagar you inflicted on his head with danda which resulted in his (Raju) death. Thereby you have committed offence punishable under Section 302 IPC which is within the cognizance of this Court.

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You hereby direct that you will be tried by this Court for the aforesaid charge.

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(English Translation by Court)

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12. Accused-appellant pleaded not guilty and claimed trial.

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In order to prove guilt of accused-appellant, prosecution examined as many as nine witnesses, in the following manner:-

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Sr. No.	Name of PW	Nature of witness	Paperproved
1	Indrajeet	Fact	Ex.Ka-1
2	Constable Satish Kumar	Formal	Ex.Ka-2
3	Dr. Dinesh Mohan Saxena	Formal	Ex.Ka-3
4	Munna Bhai	Formal	Ex.Ka-1
5	Teeka Ram	Fact	Ex.Ka-4
6	S.I. Ram Sewak	Formal	Ex.Ka-9

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7	Constable Jeet Singh	Formal	Ex.Ka- 10 & 11
8	Murli Dhar Sharma	Fact	Ex.Ka-12
9	S.I. Arun Kumar Singh	Formal	Ex.Ka-15

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PW-1 Indrajeet is brother of deceased Raju and informant but he is not eye witness; PW-2 Constable Satish Kumar is witness of inquest who was present at the time of inquest, Body was handed over to him for postmortem; PW-3 Dr. Dinesh Mohan Saxena conducted autopsy on the dead body of deceased and prepared postmortem report Ex.Ka-3; PW-4 Munna Bhai is a scribe of written tehreer Ex.Ka-1, he scribe Ex.Ka-1 at the dictation of PW-1; PW-5 Teeka Ram is eye witness of incident; PW-6 SI Ram Sweak is a formal witness and held inquest over the dead body of Raju; PW-7 Constable Jeet Singh registered chick FIR Ex.Ka-11 and made an entry in G.D. PW-8 Murli Dhar Sharma, owner of Hotel, is witness of fard of blood stained and simple earth, he is not eye witness; and PW-9 SI Arun Kumar Singh is Investigating Officer of the case and arrested accused-appellant and recorded his disclosure statement and on his pointing out, recovered Danda allegedly used in commission of crime and submitted charge sheet against accused Ashok.

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Subsequent to closure of prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded by the Trial Court on 07.06.2011, explaining entire evidence and other incriminating circumstances and evidence. Accused-appellant in his statement under Section 313 Cr.P.C. claimed false implication and denied the prosecution story in toto, entire proceeding of investigation was said to be wrong and he did not choose to lead any evidence in his defence.

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Ultimately case came to be heard and decided by Additional Sessions Judge, Court No.5, Gautam Budh Nagar. On appreciation of evidence available on record and after hearing both the parties, Trial Court recorded verdict of conviction and sentence against the accused-appellant

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as stated above.

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Feeling aggrieved and dissatisfied with the impugned judgement and order, accused-appellant approached this Court through Superintendent of District Jail, Ghaziabad, assailing the impugned judgement.

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We have heard Sri Uttar Kumar Goswami, learned Amicus Curiae for appellant and Sri Ratan Singh, learned AGA for State at length and have gone through the record carefully with the valuable assistance of learned Counsel for parties.

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Learned Amicus Curiae for accused-appellant assailing impugned judgement and order of conviction and sentence, took us through the record and advanced following submissions :-

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It is a case of direct evidence but no cogent and convincing evidence has come against the accused.

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Except PW-5, no other eye witness has been produced from the side of prosecution. PW-5 is not reliable witness and his evidence is not worthy to credence.

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Evidence of PW-5 is self contradictory.

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Prosecution has failed to prove its case beyond reasonable doubt.

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Trial Court did not appreciated the evidence in right prospective and wrongly convicted the accused-appellant.

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Learned AGA opposed the submissions and submitted that accusedappellant is named in the FIR, evidently he was present on spot with victim and some quarrel has taken place between accused-appellant and deceased Raju before the incident which lead to incident; Danda allegedly used in the commission of offence has been recovered at the pointing out of accused-appellant; Prosecution successfully established its case and

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Trial Court has rightly convicted the accused-appellant.

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Although time, date, place of incident and death of victim Raju could not be challenged from the side of the defence but according to Advocate he is not responsible of murder of Raju. Even otherwise from evidence of PW-3 Dr. Dinesh Mohan Saxena, PW-5 Teeka Ram and PW-6 SI Ram Sweak. Time, date and place of incident and murder of victim stand established.

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Thus the only question remains for consideration of Court is "whether accused-appellant committed murder of Raju by inflicting blunt object injury on his head and Trial Court has rightly convicted him or not?"

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Now we may proceed to consider rival contentions made by learned Counsel for parties and briefly evidence of prosecution witnesses.

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PW-1 Indrajeet happens to be brother of deceased Raju, deposed that victim Raju worked in Sharma Hotel; Teekaram, Deepu and Ashok also worked there. On the fateful night i.e. 03.05.2010 at about 11:00 PM there was quarrel between accused-appellant Ashok and victim Raju over making much bread in the Hotel whereupon accused-appellant Ashok attacked Raju with Danda. He was told this fact by Teekaram and Deepu. Thus it is very clear that PW-1 is not eye witness of the incident, hence his statement required no much scrutiny.

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PW-5 Teekaram is only alleged eye witness, deposed that on 23.05.2010, he, accused-appellant Ashok, victim Raju and one Deepu were present in the Hotel which belonged to Murli Dhar Sharma, PW-8. Accused-appellant Ashok used to make bread on Tandoor and victim Raju cooked other material; Raju was close to owner of the Hotel; On the fateful night i.e. 03.05.2010, owner of the Hotel and his son went to his house at about 10:00 PM taking entire money; he (PW-5), victim Raju,

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accused-appellant Ashok and Deepu remained in Hotel; In the night there was a quarrel between accused-appellant Ashok and victim Raju over making more breads; both used to drink. Victim Raju had taken liquor, accused-appellant started abusing Raju who objected and laid on the cot and was mumbling. Both were lying close by; he and Deepu laid on the roof of Leelawati Dharamkanta at the distance of 100 yards from place of incident; accused-appellant Ashok went towards Jungle and took a Danda from there and attacked on the head of Raju three times with Danda and fled away from there with Danda, they could not speak anything due to fear of evil; in the morning they narrated entire story to owner of Hotel when he came with his son; 2^nd or 3^rd day of incident police apprehended accused-appellant Ashok and took Hotel by vehicle and on his pointing out, recovered a thick Danda with blood allegedly used in the commission of offence from the sand at about 04:00 PM on 05.05.2010; and recovery memo thereof Ex.Ka-4 was prepared before him, he signed over it.

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In the cross-examination, he (PW-5) deposed that Accusedappellant took out the danda (stick) from the pile of sand and Leelawati Dharamkanta is at the distance of 100 yards from Hotel. Raju and Ashok used to sleep in the Varanda of Hotel while he and Deepu used to sleep at Leelawati Dharamkanta. Accused-appellant Ashok and Raju slept on the cot in the fateful night and there was dark at 11:00 PM in the night but there was two lighting in the Hotel, he saw accused-appellant going towards western side of jungle, after five minutes accused-appellant returned with danda; the said danda was made of Eucalyptus having three nails; he does not know where owner owner's of Hotel resides and Hotel was on the main road; they went to sleep to Leelawati Dharamkanta at about 10:45 PM; accused-appellant Ashok ran away from spot and head of victim Raju was bleeding, he was in the Hotel till Ashok was arrested, at the time of incident Deepu was also awake. Thus it is apparent from the evidence of this witness (PW-5) that at the time of incident he was on the roof of Leelwati Dharamkanta which is at 100 yards far from the place of

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incident and there was dark and it was not possible to him to witness how many nails were fixed in the danda. He further admitted that he did not see touching it and it was of old wood. Accused-appellant ran away from spot with Danda.

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More so other witness Deepu did not come forward to support prosecution story and prosecution did not give any proper explanation for not producing him in evidence. It has also come in the evidence of this witness that deceased Raju, among other servants, was very close to owner of the Hotel. There is no explanation to this witness, why he did not inform Police or owner of Hotel, until owner of Hotel arrived in the morning. The witness further states that there was nobody except victim and accused-appellant in Varanda and after the incident, he came in the Hotel when owner arrived.

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PW-5 is only eye witness who has been produced from the side of prosecution in support of its case. Evidence of this witness found no corroboration with any other evidence. It has come in the statement of this witness that Deepu and two other persons were also present in Leelawati Dharamkanta but he could not tell the name of those persons who are said to be present in Leelawati Dharamkanta in the fateful night. In absence of any corroboration evidence of PW-5 inspires no confidence.

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It is settled legal position that conviction can be based on single and sole testimony but it must be cogent, natural and reliable. In view of Section 134 of Indian Evidence Act,1872 (hereinafter referred to as 'Act,1872'). Section 134 of Act, 1872, reads as under:-

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"134. Number of witnesses.—No particular number of witnesses shall in any case be required for the proof of any fact."

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Law is well-settled that as a general rule, Court can and may act on the testimony of a single witness provided he/she is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a

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single witness. That is the logic of Section 134 of Act, 1872. But if there are doubts about the testimony, Court will insist on corroboration. In fact, it is not the numbers, the quantity, but the quality that is material. Timehonoured principle is that evidence has to be weighed and not counted. Test is whether evidence has a ring of truth, cogent, credible and trustworthy or otherwise.

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In Namdeo v. State of Maharashtra (2007) 14 SCC 150, Court re-iterated the view observing that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused inspite of testimony of several witnesses if it is not satisfied about the quality of evidence.

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In Kunju @ Balachandran vs. State of Tamil Nadu, AIR 2008 SC 1381 a similar view has been taken placing reliance on earlier judgments including Jagdish Prasad vs. State of M.P., AIR 1994 SC 1251; and Vadivelu Thevar vs. State of Madras, AIR 1957 SC 614.

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In Yakub Ismailbhai Patel Vs. State of Gunjrat reported in (2004) 12 SCC 229 , Court held that :-

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"The legal position in respect of the testimony of a solitay eyewitness is well settled in a catena of judgments inasmuch as this Court has always reminded that in order to pass conviction upon it, such a testimony must be of a nature which inspires the confidence of the Court. While looking into such evidence this Court has always advocated the Rule of Caution and such corroboration from other evidence and even in the absence of corroboration if testimony of such single eye-witness inspires confidence then conviction can be based solely upon it."

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In State of Haryana v. Inder Singh and Ors. reported in (2002) 9

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SCC 537 , Court held that it is not the quantity but the quality of the witnesses which matters for determining the guilt or innocence of the accused. The testimony of a sole witness must be confidence-inspiring and beyond suspicion, thus, leaving no doubt in the mind of the Court.

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It is well settled that where on the evidence, two possibilities are available or open which goes in favour of the prosecution and other which benefits an accused, the accused is undoubtedly entitled to benefit of doubt.

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In Bhagwan Singh & Others v. State of M.P., (2002) 4 SCC 85 , Court repeated one of the fundamental principles of criminal jurisprudence that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Court observed as under:-

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"7. ….......The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but a Judge made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided.......”

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In Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SCC 1622, Court said that at any rate, the evidence clearly shows that two views are possible – one pointing to the guilt of the accused and the other leading to his innocence. It may be very likely that the appellant may have administered the poison (potassium cyanide) to Manju but at the same time a fair possibilitiy that she herself committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his acquittal.

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In Kali Ram v. State of Himachal Pradesh, 1973 AIR 2773, Court made following observations:

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"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."

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In the present case, PW-5 is only the alleged eye witness. Conduct of PW-5 like not informing the owner or Police about incident till PW-8 arrived is not natural. Explanation submitted by him is not cogent and convincing. Thus PW-5 has failed to establish the guilt of accusedappellant. There is no other evidence on record to connect accusedappellant with the present crime. Hence it can be said that crime could have been committed by someone else.

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Considering the entire fact and evidence produced by prosecution, in its entirety and legal proposition discussed herein before, in our considered view, prosecution failed to prove its case beyond reasonable doubt against accused-appellant and Trial Court has not appreciated the entire evidence in right prospective and committed manifest error in convicting the accused-appellant, hence the appeal succeed and liable to be allowed.

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Present jail appeal is hereby allowed. Impugned judgment and order dated 13.07.2011 passed by Sri Mohammad Ibrahim, Additional District and Sessions Judge, Court No. 05, Gautambudh Nagar in Session Trial No. 441 of 2010 arising out of Case Crime No. 450 of 2010, Police Station Kasna, District Gautam Budh Nagar, under Section 302 IPC is set aside. He shall be released forthwith, if not wanted in any other crime.

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Keeping in view provisions of Section 437-A Cr.P.C., appellant is directed to furnish a personal bond and two sureties before Trial Court to its satisfaction, which shall be effective for a period of six months, along with an undertaking that in event of filing of Special Leave Petition against instant judgment or for grant of leave, appellant on receipt of

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notice thereof shall appear before Hon'ble Supreme Court.

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Lower Court record along-with a copy of this judgment be sent back immediately to District Court concerned and also copy of this judgment be sent to Superintendent Jail concerned through District Judge concerned for immediate compliance and further necessary action.

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Before parting, we provide that Sri Uttar Kumar Goswami, Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal, 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, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.

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Order Date :- 24.10.2019 I.A.Siddiqui

Ashok v. State

Case brief

What is this about?

What did the court decide?

Ashok v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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