Kalluwa Vs State

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AFR

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Reserved on 20.5.2019 Delivered on.16.8.2019.

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Court No.34

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Case :- JAIL APPEAL No. - 948 of 2009 Appellant :- Kalluwa Respondent :- State Counsel for Appellant :- From Jail,V.S. Parmar Counsel for Respondent :- Ratan Singh (A.G.A).

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Hon'ble Sudhir Agarwal,J. Hon'ble Virendra Kumar Srivastava,J.

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(Delivered by Hon'ble Virendra Kumar Srivastava,J)

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This jail appeal under section 383 Code of Criminal Procedure, 1973 (Cr.P.C) has been preferred by accused-appellant Kalluwa (hereinafter referred as appellant) through Superintendent of Sub-Jail, Mahoba against the judgment and order dated 16.1.2009 passed by Additional Sessions Judge, Court No.2, Mahoba, in S.T. No.116 of 2007 ( State vs. Kalluwa), whereby appellant has been convicted under section 302 I.P.C and sentenced for imprisonment for life and also with a fine of Rs.10,000/-

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Brief facts, as stated in First Information Report (hereinafter referred to as F.I.R) as well as in material available on record of the prosecution case, are, that on 12.6.2007 at about 3.40 a.m., P.W-1 Annu alias Daya Shanker, resident of Mohalla Jayandra Nagar Charkhari, police station (P.S) Charkhari, District Mahoba, submitted a written report (Ex.ka-1) at P.S. Charkhari, District Maboba alleging therein, that in the intervening night of 12.6.2007 he and his wife Smt. Vimla (P.W-2) were sleeping inside his house and his mother Smt. Brijrani (deceased) was sleeping on the cot, on platform (Chabutara), situated out side his house. At about 3.00 a.m, upon hearing cry of his mother, he and his wife came out from his house and saw that an unknown person was running away, after causing serious injury on the head of his mother by a sharp edged weapon. He and his wife ( P.W-2) saw and identified him in the light of

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tube light and also can identify him. When he came towards his mother, he saw that his mother had died. Her dead body was lying at the place of occurrence.

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On receipt of F.I.R (Ext.Ka-1), P.W-5 Cons. Jairam Prajapati registered the case and prepared chick report (Ext.ka-3), on 12.6.2007 at 3.40 a.m, as case crime No.1012 of 2007, under Section 302 I.P.C against unknown person and also made relevant entry of the said information in general diary (Ext.ka-4). Investigation was undertaken by P.W-6, S.I. Gopal Krishna Gupta (I.O), who was posted as officer in-charge P.S. Charkhari, District Mahoba. He immediately rushed to the place of occurrence and recorded statement of P.W-1 Annu alias Dayashankar, inspected the place of occurrence and prepared site plan of the occurrence (Ext.ka-5). He prepared inquest report (Ext.ka-6) and necessary police papers i.e chalan nash, request letter to C.M.S, letter to R.I, photo nash (Ex.ka-7 to Ext.ka10) and thereafter sealed the dead body of the deceased, and sent it to the District Hospital, Mahoba for postmortem.

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P.W-4, Dr. D.K. Sullerey, conducted autopsy on corpus of deceased Brijrani on 12.6.2017 at 4.00 p.m. and found following anti mortem injury.

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(1) Incised wound 18 cm x 2 cm cavity deep with cutting of underlying bones (Temporal and parietal left) and laceration on left eye and brain matter coming out at left side of face at base of nose to left ear.

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(2) Incised wound 13 cm x 1.5 cm with cutting underlying bone ( left maxilla) at the left side of face.

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(3) Incised wound 6 cm x 1.5 cm with cutting underlying bone (right side of mandible) Teeth at right side of face just lateral to right angle of mouth .

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During investigation, I.O (P.W-6) recorded statements of Rajju

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(P.W-3) and appellant. He also took the sample of blood stained and plain earth and piece of blood stained bed sheet and prepared its seizure memo (Ext.ka-11 and Ext.ka.12).He arrested appellant, and on his confessional statement and on his pointing out, recovered weapon used in the commission of offence, one spade ( Farsha) from the bushes, situated near Pahadee of Khajor and prepared seizure memo of recovery of weapon (Ext-ka-13) and site plan of recovery of weapon (Ext.ka-14). After recording the statement of eye witnesses, witnesses of inquest report, seizure memo and other police officials i.e. Annu alias Daya Shankar (P.W-1) Amar Singh Chauhan, Bhauu alias Bhagwan, Maan Singh and Aswani Kumar, Raj Bahadur, Shankar Singh, Vimla Devi (P.W-2), Rajju (P.W-3), Cons. Moharrir Jairam Prajapati, P.W-5, Cons. Prakash Narayan, Home guard Ram Swaroop, he submitted charge sheet (Ex.Ka-15), under section 302 I.P.C against appellant.

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The cognizance of the offence was taken by Chief Judicial Magistrate, (C.J.M) Mahoba on 21.7.2007.

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Since the offence was exclusively triable by Court of Session, C.J.M Mahoba, after providing copies of relevant police of papers as required under section 207 Cr.P.C, committed the case to Court of Session Judge, Mahoba; who framed the charges on 6.10.2007 as under:-

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**EkSa lq/khj dqekj lDlsuk] l= u;k;k/kh'k] egksck ,rn~ +}kjk vki vfHk;qDr&dyqvk iq= fgUnwir fo'odekZ ij fuEufyf[kr vkjksi fojfpr djrk gwW %&

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;g fd fnukad 12-6-07 le;k djhc 3&00 cts izkr% ¼jkr½ ?kVukLFky is'k njoktk oknh ¼pcwrjs ij ckgj½ ogn eqgYyk T;sUnzuxj Fkkuk pj[kkjh ftyk egksck e s a vkius gR;k djus ds vfHkizk; ls oknh dh ekW Jherh ctjkuh ij Qjlk ds okj ls pksVsa igqWpkdj Jherh ctjkuh dh e`R;q dkfjr dh A bl izdkj ls vkius Hkk0na0la0 dh /kkjk 302 ds vUrxZr n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gS A

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

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vkjksi vfHk;qDr dks i<+dj lquk;k o le>k;k x;k] ftls mlus vLohdkj fd;k vkSj fopkj.k dh ekax dhA**

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I, Sri Sudhir Kumar Saxena, Sessions Judge, Mahoba do hereby charge on you Kalluwa s/o Hindopat Vishwakarma as follows:-

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That you in the intervening night of 12.6.2007 at about 3.00 a.m. in front of the house of informant (outside his house at Chabutara) within the area of Mohalla Jayant Nagar, P.S Charkhari, District Mahoba with intention to commit the murder of Smt. Brijrani, mother of the informant by causing injury with Farsa and thereby committed an offence punishable under section 302 of the I.P.C and within the cognizant of this Court.

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And hereby directed that you be tried by this court on the said charge. The charge were read over and explained to the accused-appellant who pleaded not guilty and claimed to be tried.

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(Translated by Court)

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In support of its case, prosecution examined six witnesses, out of whom P.W-1, Annu alias Daya Shankar, P.W-2, Smt. Vimala wife of informant, P.W-3, Rajju, brother-in-law (Dewar) of the deceased are witnesses of fact whereas P.W-4, Dr. D.K. Sullerey, P.W-5 cons. 130 Jairam Prajapati, P.W-6, Inspector Gopal Krishna Gupta are formal witnesses.

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After conclusion of evidence, the statement of appellant was recorded under section 313 Cr.P.C., who stated that the entire prosecution story is false and concocted and claimed that he has falsely been implicated in this case. Upon opportunity given by Trial Court for defence evidence, he had produced D.W-1 Laadkunwar and D.W-2 Hindupat in his defence.

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Upon conclusion of trial and after hearing learned counsel for both the parties, Trial Court found appellant guilty for the offence under section 302 I.P.C and accordingly convicted and sentenced him as above . Aggrieved by the aforesaid impugned judgment and order, appellant has preferred this appeal.

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We have heard Sri V.S. Parmar, learned counsel for the appellant and Sri Ratan Singh, learned A.G.A for the State.

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It has been argued by learned counsel for the appellant that F.I.R is ante timed; appellant is not named in the F.I.R; no identification parade was held; there was no source of light at the place of occurrence; P.W-3

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Rajju is not named in the F.I.R; P.W-1 Annu alias Daya Shankar has also not named any witness who had seen the occurrence; P.W-2 Vimla and P.W-3 Rajju are the nearest relative of P.W-1 Annu alias Daya Shankar and are interested witness; presence of P.W-3 Rajju at the place of occurrence is highly doubtful; statement of eye witnesses P.W-1 Annu alias Daya Shanker, P.W- 2 Vimla and P.W-3 Rajju are self contradictory and doubtful; recovery of alleged weapon used in the offence is also doubtful; even if prosecution case is found reliable, offence under section 302 I.P.C is not made out rather only offence under section 304 I.P.C may be made out in the fact and circumstance of this case; and accusedappellant is innocent and has falsely been implicated in the present case hence impugned judgment and order is based on surmises and conjuncture and liable to be set aside.

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Per contra, learned A.G.A has submitted that presence of witnesses at the place of occurrence is natural; their evidence are trustworthy; accused-appellant had been identified in the light available at the place of occurrence; evidence of prosecution witnesses cannot be thrown out only on the ground that they are relatives of the deceased; the ocular evidence is fully supported medical evidence; F.I.R has been lodged without any delay; prosecution has proved its case beyond reasonable doubt against the accused-appellant; there is no illegality in the aforesaid impugned judgement and order, hence appeal is liable to be dismissed.

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We have considered the submission made by the learned counsel for both parties and perused the record.

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In the light of arguments advanced by both the parties and evidence available on record, it has to be determined ''whether prosecution has succeeded to establish the offence under section 302 I.P.C against the appellant beyond reasonable doubt.''

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P.W. 1, Annu alias Daya Shankar, Informant of the occurrence, has

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stated that on 12.6.2007, his mother Brijrani was sleeping at platform (Chabutara), situated in front of his house, whereas he and his wife Vimla Devi (P.W-2) were sleeping inside his house. At about 3.00 a.m, upon hearing cry of his mother, he and his wife came out from their house and saw that some unknown person was assaulting at his mother, by sharp edged spade (Farsa). He saw and identified his face in the light of tubelight at the time of occurrence but did not know his name. He raised an alarm wherefrom appellant run away towards Paharh (mountain). He saw that his mother was lying, with blood, at cot. He has further stated that his uncle Rajju and another one person Bhau alias Bhagwan Das were also sleeping on platform situated in front of his house. They had also chased the appellant. According to him, after the occurrence, he had lodged F.I.R (Ext-ka-1); police had taken in custody blood stained earth and pieces of bed sheet, plain earth and prepared its recovery memo, at the place of occurrence wherein he had also put his signature; and police had prepared inquest report of the corpse of the deceased Brijrani, sealed the corpse, and sent it for postmortem. This witness has identified the appellant in court room and said that he had caused murder of his mother, to whom he had seen at the place of occurrence. He has further stated that while they were chasing accused, Bhau alias Bhagwan Das thrown a stick (danda) at him.

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P-W-2, Vimla, daughter-in-law of deceased, sleeping inside her house with P-W-1, Annu alias Daya Shankar, at the time of occurrence, has stated that deceased Brijrani was sleeping out side her house at platform (chabutara) whereas her father-in-law's brother ( Chachiya Shasur) Rajju (P.W-3) was sleeping at another platform in front of her house. It was 3.00 a.m, at the time of occurrence. She heard cry of her mother-in-law, Brijrani (deceased). She and her husband came out from their bed room and saw that appellant Kalluwa was assaulting deceased. When they raised alarm, appellant fled away and her husband and father-

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in-law Rajju ( Chachiya Shasur) had chased him. She had identified appellant Kalluwa in the light of tube light, who had assaulted twice to her mother-in-law by spade.

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P.W-3, Rajju, is the brother-in-law (Dewar) of deceased Brijrani. He has stated that it was 3.00 a.m, he was sleeping at the platform in front of house of one Virendra, situated across the road whereas deceased Brijrani was sleeping at the platform, situated in front of her house; at the time of occurrence he heard shriek and cry of deceased Brijrani; he saw that appellant Kalluwa was assaulting by spade on the deceased; his nephew Annu alias Daya Shankar (P.W-1) and nephew's wife Vimla( P.W-2) were also raising alarm; he had also challenged and chased the appellant but he fled away toward Godari Pahadiya; at the time of occurrence there was sufficient light of tube light in which he had seen the occurrence; after occurrence, he could not disclose the name of accused Kalluwa as he was afraid; he had disclosed his name to the police ; after 2-4 days of the occurrence, police was carrying appellant kalluwa in a jeep, and he was present at Pachraha ( five roads junction ) Akhthauha , Charkhari road with one Shankar Singh. He has further stated that police had told him that appellant was willing to get spade (weapon use in the offence) recovered, whereupon he also followed the police and appellant- Kalluwa had said that he would hand over the spade whereby, he had caused the murder. Police had taken away him also by the jeep. Jeep was stopped beneath the hill. Police had searched in person to each other. After getting down from Jeep, the appellant Kalluwa, leading police party, searched the spade from bushes of palm tree, and handed over the same to police, and said that it was that spade whereby he had caused the murder of deceased Brijrani. He has further stated that police had taken in his custody the alleged recovered spade, sealed it, and prepared memo of recovery, wherein he had also put his signature. This witness identified his signature on recovery memo before the trial court.

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P.W-4, Dr. D.K. Sullerey, who had conducted autopsy of the dead body of deceased, has stated that on 12.6.2007 he was posted at district Mahoba as Emergency Medical Officer, and had conducted autopsy of the dead body of the deceased at 4.00 p.m. which was brought before him in sealed condition by Cons. 84 Prakash Narayan Mishra, H.G-1742, Ram Swaroop, P.S Charkhari with relevant police papers. ( Anti mortem injuries, found by this witness, have been mentioned in para 4 of the judgement); in the stomach of the deceased about 6 M.L paste material was present; deceased was at about 44 years; her body was average built up; rigor mortis was present on her body; the deceased had died due to hemorrhage and shock caused by anti mortem injury which would have been caused half day before the autopsy and post mortem report (Ext-ka2) was prepared at the time of autopsy.

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P.W-5, Constable 130, Jai Ram Prajapati has stated that on 12.6.2007 he was posted at P.S. Charkhari as Cons. Moharrir. On that date, on the written information filed by Annu alias Daya Shankar (P.W1), he had lodged F.I.R No.93 of 2007 as Case crime No. 1012 of 2007, under section 302 I.P.C, against unknown person, prepared chik report (Ext-ka-3) and entered information in general diary( Ext-ka-4).

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P.W-6, Gopal Krishna Gupta (I.O) has stated that on 12.6.2007, he was posted as Station House Officer at P.S. Charkhari and undertaken investigation of the case. He had inspected place of occurrence on the pointing out of Informant, Annu alias Daya Shankar (P.W-1), and prepared site plan (Ext.ka-5). The inquest was conducted under his supervision by Devi Deen. Inquest report (Ext.ka-6) and relevant papers, letter to C.M.O, Chalan nass, letter to R.I., photo nass (Ex.ka-7 to Ext.ka 10) were also prepared. He had taken into his custody, pieces of blood stained bed sheet,sample of blood stained and plain earth and prepared recovery memo (Ext.ka 11 to Ext.ka12).Appellant was arrested by him on 13.6.2007. On his confessional and disclosure statement, the weapon

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(spade) used in the offence was recovered from the bushes of palm tree situated at nearby Godari Pahadi in the presence of witnesses. According to him recovered spade was sealed in the presence of the witnesses and its recovery memo (Ext-ka-3) was prepared and signed by him and by witnesses. He has further stated that during investigation he had recorded statement of witnesses and also prepared site plan (Ext-ka-14) of recovery of spade and after investigation filed a charge sheet (Ext-ka-15) against the appellant Kalluwa, under section 302 I.P.C. According to him on 20.7.2007, the recovered articles i.e blood stained earth, pieces of bed ( bistar) and spade (material Ext-1 to material Ext- 4) were sent to the Forensic Science Laboratory for examination.

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After conclusion of prosecution evidence, statement of appellant was recorded under section 313 Cr.P.C, wherein he denied the occurrence and the evidence produced by the prosecution and has stated that he has been falsely implicated by the police in this case.

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The appellant was given opportunity to lead evidence in his defence. D.W-1 Ladkunwar and D.W-2 Hindupat were examined by him in his defence. Both these witnesses are the parents of appellant.

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D-W-1 Ladkunwar, mother of appellant, has stated that on the day of occurrence at 6.00 a.m, police had taken away his son from her house when both of them were sleeping in front of her house.

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D.W-2 Hindupat, father of appellant, has stated that on the day of occurrence he was sleeping at his house with his family. Police had come and taken away his son (appellant). He has further stated that when he quarried to police, it said that they were taking away him for interrogation.

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26 . So far as the submission of learned counsel for the appellant that the prosecution witnesses P.W-1 Annu alias Daya Shankar, P-W-2 Vimla and P.W-3 Rajju are interested witnesses, the presence of P.W-3 Rajju at

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the place of occurrence is highly doubtful and the statements of all the above three witnesses are self-contradictory is concerned, it is settled principle of law that only on account that prosecution witnesses are relatives of the victim/ deceased, their testimonies cannot be discarded. In such case, their testimony is required to be tested with due care and caution. It is also to be required to see; whether presence of the witnesses on the place of occurrence is natural and their statements are trustworthy or not.

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As per F.I.R, occurrence was happened at 3.00 a.m. i.e in the night. In F.I.R none was named as accused. Even the nature and description of arm or weapon is also not mentioned therein. At the time of occurrence P.W-1 Annu alias Daya Shankar and P.W-2 Vimla were sleeping inside their house, whereas deceased was sleeping out side of her house. At about 3.00 a.m, both P.W-1, Annu alias Daya Shankar and P.W-2, Vimla heard cry of deceased and came out from their house.They saw that one unknown person was running after causing severe injury on the head of the deceased by sharp edged weapon. As per F.I.R, all these witnesses have neither seen appellant at the time of causing injury to deceased nor identified appellant.Even they had not identified weapon whereby injury was caused to the deceased. In F.I.R, it has further been mentioned that both these witnesses had seen accused in the light of mercury tube light and they can identify appellant. In F.I.R, it has also not been mentioned whether both these witnesses had chased appellant or not. In this FI.R, presence of any other witness except P.W-1 Annu alias Daya Shankar and P.W-2 Vimla has also not been mentioned.

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P.W-1, Annu alias Daya Shankar, in his statement has specifically stated that when he came out from his house, he saw that an unknown person was causing injury to his mother by spade (farsa). He has further stated, that at the time of occurrence, he had identified accused by his face but he did not know his name. He had seen accused causing the

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occurrence in the light of mercury tube light and when he shouted, accused had fled away towards Pahadi (hill). He has further stated that at the time of occurrence his uncle Rajju (P.W-3) and another person Bhau alias Bhagwandas were sleeping on chabutara (platform) in front of his house. According to him both these persons had also chased the accused. This witness has identified accused before Trial Court and stated that appellant had caused death of his mother. In cross-examination, this witness has stated that he had chased accused whereas his wife (P.W-2) began weeping by clinging with his mother. He had chased 40-50 meters to the accused but he did not know how many people were chasing the accused. According to him when he returned to his mother, it was 3.05 p.m. He had neither lifted his mother nor had asked any one to do so because his mother had died. He had not touched his mother. In cross examination, he has further stated that he drives the vehicle. He has further stated that he had seen the occurrence when accused-appellant was running after causing occurrence. At that time mercury light was blowing on the pole but he did not know whether it was moon light or dark light. In cross examination, he has also stated that he had not seen the face of accused at that time when he was fleeing. P.W-2, Vimla, in her examination-in- chief has specifically stated that when she and her husband ( P.W-1) came out from their house, on hearing the cry of her mother-in-law, saw that appellant-Kalluwa, present in Court, was attacking by spade to her mother-in-law. She has further stated that her husband and her cousin, father-in-law Rajju (P.W-3) had chased the appellant- Kalluwa. In cross examination she has further stated that she did not know the name of the appellant. She did not know as to which side the face of the appellant was, at the time of occurrence. According to her she was interrogated by police after 5-6 days. She has specifically stated in her cross examination that she did not disclose to investigating officer that accused-appellant Kalluwa had caused the death of deceased

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because she did not know name of appellant Kalluwa. She has further stated that she did not know as to how many persons named Kalluwa are residents of her town. Thus, statements of these witnesses are contradictory with fact mentioned in F.I.R (Ex.ka-1), as to whether they saw appellant at the time of causing injuries to deceased or they saw appellant, when he was running after occurrence, and also contradictory to F.I.R whether appellant was chased by any one or not.

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P.W-3, Rajju, is brother in-law (dewar) of the deceased. He is not named in the F.I.R as an eye witness. According to him, at the time of occurrence he was lying and sleeping at the platform situated in front of one Virendra, across the road, whereas his sister-in-law (Bhabhi) was sleeping, opposite side of the road at platform situated in front of her house. At about 3.00 p.m, he heard cry of deceased Brijrani and saw that appellant was causing injury to his sister-in-law (Bhabhi), by spade. According to him, at that time, his brother's son (bhatija) (P.W-1) Annu alias Daya Shankar and his wife Vimla (P.W-2) were also raising alarm. They came near appellant and tried to chase him but he fled away towards Godari Pahadiya (hill). According to him, he had identified the appellant in the light of mercury lamp, emitting light on the pole, situated nearby the place of occurrence. In examination in-chief, he has explained that he could not disclose name of appellant Kalluwa as he had become afraid at the time of occurrence, but disclosed it to police. In cross examination, he has specifically stated that after the occurrence he had gone to the police station with Annu alias Daya Shankar (P.W-1). He had not gone with Arvind Singh. P.W-1 Annu alias Daya Shankar did the job of driving of vehicle to Arvind Singh. He has further stated that no body except him and Annu alias Daya Shankar (P.W-1) had gone to police station. His daughter-in-law (Bahu) remained at her house. He has further stated that before reaching police station, he had returned to his house and thereafter Annu alias Daya Shanker would have gone to police station but he did

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not know whether he had lodged report or not. He has stated that just after one hour of the occurrence, police had reached the place of occurrence and recorded his statement. The statement was also recorded after two days and police had continuously interrogated him for five days.

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Admittedly, P.W-3 Rajju has not been named in the F.I.R. His presence or any role has also not been shown in the F.I.R. P.W.-1, Annu @ Daya Shankar, in his cross examination has also admitted that he did not mentioned name of witnesses in F.I.R for which he has not given any explanation. P.W.3 Rajju has stated that he has four brothers. All were married and there is partition among them. They reside in separate houses situated at separate place. He resides inside the town (basti) near the ' B ' Park .

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PW-6 S.I. Gopal Krishna Gupta, Investigating Officer of the case, has stated that P.W-3 Rajju did reside two kilometers away from the place of occurrence. Neither P.W-3 Rajju nor any witness of the prosecution has shown any justification as to why P.W-3, Rajju was lying and present at the platform, situated in front of one Virendra's house in the night, at the time of occurrence. The prosecution has also not produced any justification as to why the name of Rajju (P.W-3) and his role of chasing at the time of occurrence was not mentioned in F.I.R. of occurrence. In addition to it, this witness (P.W-3) once said that he had gone to police station with P.W-1 Annu alias Daya Shankar but again retracted to his statement and said that he had not gone to police station. In such circumstances evidence of this witness (P.W-3) becomes doubtful.

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In addition to above, from perusal of the site plan (Ex-ka 5) of the place of occurrence, it is clear that the house of one Virendra, Bhagwan, Virendra son of Mulayam Singh and Gorey Lal are situated just nearby the place of occurrence. PW-1 Annu alias Daya Shankar, in his examination-in-chief, has stated that in front of his house, his uncle Rajju

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(P.W-3) and one Bhau alias Bhagwan were lying. In cross examination he has also stated that the house of Bhagwan Dass is situated near the place of occurrence. P.W-3 Rajju has also, in cross examination, has stated that the house of Bhagwan Dass is situated in front of place of occurrence, the house of Govind Thakur is also situated near the house of Bhagwan Dass just 20-25 fit away from the place of occurrence. He has further stated that one Virendra Rajpoot, resides beside to one Devi Deen. He has further stated that the house of Vishwanath is also situated beside to the house of Devi Deen. P.W-1 Annu alias Daya Shankar has stated, in cross examination, that at the time of chasing accused Bhau alias Bhagwan Dass had assaulted on accused by throwing a stick. P.W-6, S.I, Gopal Krishna Gupta (I.O.) admitting this fact has also stated the fact that accused was attacked by Bhagwan Dass is true. P.W-3 in cross examination has stated that he knows Bhagwan Dass, who is uncle of appelant whereas P.W-1 said at one place that he did not know the uncle of Kalluwa but in response to question put by Trial Court he said that house of Bhagwan Dass is situated in front of place of occurrence. The prosecution has neither produced Bhau alias Bhagwan Dass nor any independent person, as witness, who resides nearly the place of occurrence. In such situation, the presence of P.W-3 Rajju, who is not resident to nearby place of occurrence and his statement, being relative of Informant, becomes doubtful.

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From the perusal of F.I.R it transpires that no one has witnessed the occurrence and accused causing injury to the deceased. Nature and description of weapon has also not been mentioned in F.I.R ( Extka.1). In F.I.R it has been mentioned as follows:-

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" ,d vKkr O;fDr ekrk th ds flj ij rst /kkj okys gfFk;kj ls flj es xEHkhj izgkj djds Hkkx jgk Fkk " One unknown person by causing injury on the head of his mother by sharp edged weapon was running. (English translation by Court)

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Non mentioning the name of any person as accused, non mentioning the direction where accused was running and also

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non mentioning the name of weapon or its details in F.I.R shows that none had seen the occurrence. After occurrence, when they saw dead body of deceased and inspected the injuries, on the basis of nature of injures, P.W-1 Annu alias Daya Shankar and other witnesses learnt that injuries were caused by any sharp edged weapon and thereafter on the basis of surmises and conjecture, F.I.R was lodged against unknown person. Thus, non mentioning name of weapon, name of accused/appellant and direction of his running after causing occurrence, in F.I.R, has also created prosecution case very doubtful.

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It is also pertinent to ascertain, at this juncture, whether F.I.R was lodged promptly or it was anti timed. According to P.W-1 Annu alias Daya Shankar, occurrence was happened at 3.00 a.m. on 12.6.2007. From perusal of the statement of P.W-1, Annu alias Daya Shankar, P.W-2 Vimla and P.W-3 Rajju, it appears that after hearing the alarm, raised by the deceased Brijrani both P.W-1 Annu alias Daya Shanker and P.W-2, Vimla came out from their house and saw that unknown accused was causing injury to the deceased. The accused was chased up to 40-50 meters by P.W-1, P.W-3 and so many people, present nearby the place of occurrence and when they could not succeeded to catch the appellant Kalluwa they returned back to the place of occurrence. Thereafter P.W-1 Annu alias Daya Shnkar had gone to lodge F.I.R.

¶81

From perusal of Ext-ka-3, Chik F.I.R, it appears that F.I.R. was lodged at 3.40 a.m i.e just after 40 minutes of the occurrence. The place of occurrence from the police station had been shown one and half kilometer. P.W-1, Annu alias Daya Shankar, has not stated, in his statement at what time had he proceeded for police station. Although P.W-3 Rajju has stated that he had gone to police station with P.W-1 Annu alias Daya Shankar but again he stated that he had returned back and P.W-1 Annu alias Daya Shnker had gone to police station who would have lodged F.I.R. P.W-1 Annu alias Daya Shnkar, in his cross

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examination has specifically stated that he had reached police station at 3.15 a.m. and lodged F.I.R. at 3.16 a.m. In the facts and circumstances of this case where occurrence has taken place at 3.00 a.m. and P.W-1 Annu alias Daya Shankar and other witnesses had chased the accused 40-50 meters and returned thereafter to the place of occurrence, statement of P.W-1 Annu alias Daya Shankar that he had reached police station at 3.15 a.m. and F.I.R. was lodged at 3.16 a.m, is not reliable. It shows that F.I.R was not lodged on 12.6.2007 at 3.40 a.m. rather it was lodged at any other time thereafter and in the chik F.I.R time of lodging F.I.R. was shown at 3.40 a.m.

¶84

It is also pertinent to mention at this juncture that the inquest proceeding (Panchayatnama) of the deceased was conducted on 12.6.2007 from 6.00 a.m to 8.30 a.m. P.W-1 Annu alias Daya Shnkar (informant) is also one of the member/witness of the inquest proceeding who had put his signature on the inquest report (Ext-ka-6). In this report also neither the name of accused nor description of weapon has been mentioned. It appears that till the completion of inquest proceeding, P.W-1 Annu alias Daya Shnkar did not know as to which type of weapon was used in the offence.

¶85

So far as the presence of light at the place of occurrence is concerned, in the F.I.R it has been mentioned that P.W-1 Annu alias Daya Shnkar and his wife P.W-2 Vimla had seen the occurrence and identified accused in the light of mercury lamp . P.W-1 Annu alias Daya Shnkar in his cross examination has stated that he had seen accused in the mercury lamp light when he was fleeing from the place of occurrence. He did not know whether it was moon light or dark light at the place of occurrence. P.W-2 Vimla has also stated that she had seen the occurrence in Mercury lamp emitting light. Although P.W-1 Annu alias Daya Shankar has not stated and specified the place where mercury light was installed/ situated, P.W-2 Vimla has, in her cross examination, has stated that mercury lamp

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was emitting light from other side of the road, where her mother-inlaw (deceased) was sleeping. From the perusal of Ex-ka-5, site plan, it appears that the pole, where mercury lamp emitting light, was situated other side of the road at the distance of 15 steps away. Thus, it is clear that there was no light at the place of occurrence, and if any light was present, it was at the other side of the road.

¶88

According to prosecution case both witness (P.W-1 and P.W-2) came out from their house and saw appellant causing injury to deceased. In site plan (Ex.ka-5), house of P.W-1 Annu alias Daya Shankar has been shown towards eastern side of place of occurrence whereas pole where mercury light was emitting, was western to the place of occurrence. It means that if front of appellant Kalluwa was towards house of P.W-1 Annu alias Daya Shanker, mercury lamp emitting light, as shown in site plan was situated on the back side of appellant. Thus, the possibility of light on the face of appellant is doubtful. P.W-1 Annu alias Daya Shankar, in his cross examination, has specifically stated that he did not know any (Dishayen) of place of occurrence, hence he could not disclose as to which side the mercury lamp was situated . He had denied to disclose as to which side his mother's head and legs were lying at the time of occurrence and also could not disclose, which side his mother was present at the time of occurrence.

¶89

P.W-2 Vimla has also stated in her cross examination that she did not know as to which side the face of appellant- Kalluwa was present at the time of occurrence. In F.I.R. no special character of appellant has been mentioned. According to P.W-1 Annu alias Daya Shankar and P.W-2 Vimla, they had not seen the appellant, prior to occurrence. They have also not stated any special character of body, physique or face of appellant. Thus, from the statements of these witnesses, it is clear, that there is contradiction in their statements regarding their opportunity to see and identify the appellant/accused causing injury to deceased at the time

¶90

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of occurrence, that either these witnesses were not present at the time of occurrence or concealing the true fact regarding the presence of other witnesses at the place of occurrence. In such situation statements of these witnesses that they had identified appellant in the light of mercury lamp is not reliable and trustworthy.

¶92

It is also pertinent to note that P.W-3 Rajju in his cross examination has stated that he was also interrogated continuously 5-6 days after the occurrence. This witness has accepted his presence nearby the place of occurrence but his interrogation for 5-6 days creates doubt in the prosecution case. In addition to it, P.W-6 (I.O.) has not stated in his examination in chief that when and how the name of appellant Kalluwa came into the light during investigation. He has stated in his examination that accused was arrested on 13.6.2007 and confessed his guilt. He made a disclosure statement regarding concealment of spade (Farsa) used in the offence in herbs and bushes nearby chilla tree situated at Godari hill and on his statement, the said spade (Farsa)/ weapon was recovered. This witness (P.W.6) has not disclosed in whose presence weapon, used in the offence, was recovered.

¶93

P-W-3 Rajju, in his cross examination, has stated that after 2-4 days of the occurrence, police was carrying appellant Kalluwa in police jeep at Pacharaha ( junction of five roads ) Akhthauha, Charkhari road, where he and one Shankar Singh were present. In cross examination he has stated that Shankar Singh is his nephew. According to this witness, the spade (farsa) used in the offence was recovered by police in his presence. P.W-3 Rajju who is real uncle of P.W-1 Annu alias Daya Shankar, is not named in F.I.R, despite that, he has been produced by the prosecution as eye witness but his presence at the place of occurrence has been found not natural. He has also been made witness by police in the recovery of weapon (spade) used in the offence. Alleged recovery of weapon (Spade) has not been made in the presence of any independent

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witness. In view of the above, presence of this witness at the place of occurrence and also at the place of recovery of weapon, as a star witness, creates doubt in the prosecution case as well as recovery of weapon (spade).

¶96

In F.I.R (Ex-ka-1), no identification marks, physique, get-up or any special character of body of accused has been mentioned. It has also not been mentioned in F.I.R as to which direction appellant had fled away after occurrence. P.W-1, Annu alias Daya Shankar, in his cross examination, has specifically stated that he did not know Kalluwa prior to the occurrence. He did not know whereabouts of appellant Kalluwa's field from the place of occurrence. He also could not say as to in which side appellant-Kalluwa field was situated. He also did know as to in which side appellant Kalluwa's house was situated from the place of occurrence. P.W-2 Vimla, has also stated same way. She has stated that she knows Kalluwa after the occurrence. She has further stated that she did not know that Bhagwan Dass, uncle of Kalluwa, resides in front of her house and Kalluwa used to visit her uncle's house. She has also expressed her ignorance to appellant-Kalluwa's house and field. According to her the name of Kalluwa had been disclosed to her after occurrence by P.W-3 Rajju. Both these witnesses have also not stated any special character or identification of accused to whom they saw for the first time at the time of occurrence, but they have identified the appellantKalluwa during trial, before the trial court.

¶97

It is settled principle of law that if a person is not known to any witness and he was seen for the first time at the time of occurrence, identification of that person for the first time in Court is very weak type of evidence. It can be relied upon in very peculiar fact and circumstance of that case. Reliability of such identification depends upon several factors for example; whether witness identifying the accused for the first time in court, had an opportunity to see and identify accused after the

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occurrence and prior to his identification in court or not; whether any precaution before his identification was taken by court or not; for example, covering the important identification marks on the face of accused or whether he was present in the court room along with other accused or standing alone at the time of identification.

¶100

Coming to the fact of this case, neither P.W-1, Annu alias Daya Shankar nor P.W-2 Vimla did know appellant-Kalluwa before occurrence. They have also not stated regarding any identification marks of appellant-Kalluwa. No identification proceeding was held during investigation. Appellant has been identified before the Trial Court on 2.1.2008, i.e. after six months of occurrence. From perusal of order sheet of Trial Court's proceeding it transpires that the charge was framed on 6.10.2007 and thereafter case was fixed for prosecution evidence. On 25.10.2007, 17.11.2007 and 7.12.2007 when the case was fixed for evidence the appellant and P.W-1 Annu alias Daya Shankar were present before Trial Court, but the evidence of P.W-1 Annu alias Daya Shankar could not be recorded. It has not been mentioned in the order sheet of the aforesaid date, that the appellant had covered his face or any caution had been given to him to cover his face or identity mark. On 2.1.2008, when P.W-1 Annu alias Daya Shankar identified the appellant Kalluwa during his examination, nowhere is mentioned in order sheet as to whether appellant was standing in court room with so many accused/people or was standing alone. As it had already observed that the appellant Kalluwa and P.W-1 Annu alias Daya Shankar are residents of same town. Thus, in view of the peculiar facts and circumstances of this case P.W-1 Annu alias Daya Shankar had of ample opportunity to see, appellant after the occurrence and prior to identification, in Court. His statement regarding identification of appellant is not reliable. Similarly statement of P-W-2 Vimla who also did not know appellant Kalluwa prior to the occurrence and came to know his name as told to her by

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P.W- 3 Rajju, is also doubtful.

¶103

Every contradiction, inconsistency between the statement of witnesses, normally, may not be treated material but where accused/appellant and witness are residents of same town and occurrence had taken place in the night, neither name of accused nor name of witness or description of weapon was mentioned in F.I.R, important natural and independent witness present at the time of occurrence were not produced, no identification parade was conducted, eye witnesses are relatives and out of these witnesses one witness, PW-3 Rajju is not resident to the nearby place of occurrence, the contradiction and inconsistency found herein above are major and important which have demolished the castle of prosecution case.

¶104

Thus, in view of the above, we are of the considered view that the prosecution has failed to prove its case beyond reasonable doubt against appellant. He is entitled to be acquitted against charge levelled against him. The judgment and order passed by learned Additional Session Judge, Court No.2, Mahoba in Session Trial No.116 of 2007 is hereby set aside. Consequently, the appeal is allowed.

¶105

The appellant is in jail. He, if not wanted in any other case, shall be released forthwith.

¶106

Keeping in view the provision of Section 437-A of the Code, appellant-Kalluwa is hereby directed forthwith to furnish a personal bond of a sum of Rs.10,000/- each and two reliable sureties each of the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against this judgment or for grant of leave, appellant-Kalluwa, on receipt of notice thereof, shall appear before Hon'ble Supreme Court.

¶107

A copy of this judgment be sent to Trial Court by FAX for

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immediate compliance. Tbe Lower Court's record be also sent back along with a copy of this judgment.

¶110

Dt 16.8.2019..

¶111

G.S

Kalluwa v. State

Case brief

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Kalluwa v. State

Case brief

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