Arvind Chaudhary vs State of U.P.

U.S. Tripathi, J.—This appeal has been preferred from jail against the judgment and order dated 27.7.2000, passed by the Special Judge Anti Corruption Act/Additional Sessions Judge, Gorakhpur, in Sessions Trial No. 394 of 1999, convicting the Appellant u/s 302, I.P.C. and sentencing him to imprisonment for life.

The prosecution story briefly stated was that the Appellant along with his wife Smt. Saraswati deceased and two daughters Anshoo aged about 8 years and Kazal aged about one year was residing in Avas Vikas Colony Mahadeo Jharkhandi, Gorakhpur City. The Appellant had taken loans from several persons which he was unable to pay. On account of loan he was hard pressed and used to beat his wife and children out of frustration. On 2.8.1999 at about 5.30 p.m. the Appellant caused injuries with kudal on his wife Smt. Saraswati and two daughters Anshoo and Kazal. The two daughters died on the spot and his wife Smt. Saraswati was badly injured. She was shifted to District Hospital by the residents of the colony. After committing murder and causing injuries the Appellant was running from the spot, but the persons of the locality apprehended him by causing injuries on him and he was also admitted in the Jail Hospital.

A written report of the occurrence was lodged at police station Cantonment by Ramesh Chaudhary (P.W. 1) the uncle and next door neighbour of the Appellant. On the basis of the above report a case was registered against the Appellant under Sections 302 and 307, I.P.C. Smt. Saraswati also died in the hospital after some time.

The investigation of the case was taken by Sri Indresh Yadav (P.W. 4) who visited the spot on 2.8.1999 and found the dead bodies of Km. Anshoo and Km. Kazal lying on the spot. He conducted inquest of the above dead bodies and sent for post mortem and thereafter came to District Hospital, where he conducted inquest of the dead body of deceased Smt. Saraswati and sent it for post mortem. The Investigating Officer interrogated the witnesses of the locality as well as eye-witnesses.

Autopsy on the dead bodies of Smt. Saraswati, Kazal and Anshoo were conducted on 3.8.1999 by Dr. O. N. Gupta (P.W. 5) who found following injuries and cause of death.

There were following ante mortem injuries on the person Smt. Saraswati deceased:

(1) Incised wound 6 cm. ? 1-1/2 cm. ? bone deep on the left parietal region.

(2) Incised wound 8 cm. ? 2 cm. ? bone deep over left ear and mastoid region underlying mastoid bone cut.

(3) Incised wound 3 cm. ? 1 cm. ? bone deep on right parietal region.

(4) Incised wound 2-1/2 cm. ? 1 cm. ? bone deep on the occipital region right side.

(5) Incised wound 1/2 cm. ? 1/2 cm. ? muscle deep on the back of left elbow.

(6) Abrasion 1/2 cm. ? 1/2 cm. ? on the back of left fore arm.

(7) Incised wound 1 cm. ? 1/2 cm. muscle deep on the right arm middle.

(8) Stitched wound with 4 stitches O shaped on the right forearm on opening wound was muscle deep.

(9) Incised wound 3 cm. ? 1/2 cm. ? skin deep on the right scapular region.

(10) Multiple abrasions in an area of 36 cm. ? 20 cm. on the back of chest and abdomen.

(11) Abrasion 6 cm. ? 1 cm. on the back of right wrist.

Internal examination showed that there was haematoma below skull and all over the membranes and brain and cause of death was coma as a result of ante-mortem injuries.

Following ante-mortem injuries were found on the person of baby Kazal:

(1) Incised wound 12 cm. ? 2 cm. ? brain cavity deep, extending from frontal region to left parietal region, brain matter coming out.

(2) Incised wound 8 cm. ? 2 cm. ? brain cavity deep on the top of the head, brain matter coming out.

(3) Incised wound 3 cm. ? 1-1/2 cm. ? bone deep on middle of chest upper part.

Internal examination showed that left parietal and frontal bones were fractured and cut underneath as noted above with haematoma and cause of death was coma as a result of ante mortem injuries.

Following ante-mortem injuries were found on the person of Km. Anshoo:

(1) Incised wound 2 cm. ? 1 cm. ? brain cavity deep on the right parietal region, brain matter coming out.

(2) Abrasion 8 cm. ? 2 cm. ? on the back of left forearm and palm.

(3) Multiple abrasion 35 cm. ? 10 cm. ? on the back of chest right side abdomen.

(4) Traumatic swelling 8 cm. ? 4 cm. ? on occipital region.

(5) Incised wound 2 cm. ? 1/2 cm. ? bone deep 2 cm. below injury No. 4.

Internal examination showed that membranes were cut and cause of death was coma as a result of ante mortem injuries.

The Investigating Officer completed remaining investigation and on completion of investigation submitted charge-sheet against the Appellant.

The Appellant was charged with the offence punishable u/s 302 I.P.C. He pleaded not guilty. However, he contended that he had caused injuries on his wife and two daughters with phawra and was arrested by mohalla people on the spot, who assaulted him badly and he became unconscious.

The prosecution in support of its case examined Ramesh Chaudhary (P.W. 1), Subhash Chandra Yadav (P.W. 2), Ravi Chand Yadav (P.W. 3), Indresh Yadav, Investigating Officer (P.W. 4), Dr. O. N. Gupta (P.W. 5), Dinesh Prasad Dixit, Chief Pharmacist (P.W. 6), Balkaran Singh, Head Constable (P.W. 7), Dr. S. K. Pathak (P.W. 8), Constable Jai Prakash Pandey (P.W. 9) and Dr. D. K. Singh (P.W. 10). The Appellant did not adduce any evidence in his defence.

Learned Sessions Judge on considering evidence on record held that in view of circumstantial evidence on record and statement of Appellant u/s 313, Cr. P.C. the offence punishable u/s 302, I.P.C. was fully made out against the Appellant. With these findings he convicted and sentenced the Appellant as mentioned above.

The Appellant was served with the notice of appeal through Superintendent Central Jail, Varanasi, but he did not engage any counsel. Therefore, we appointed Sri Vaibhav Prasad Tripathi, advocate as amicus curiae to argue the appeal on behalf of the Appellant.

We have heard Sri Vaibhav Prasad Tripathi, learned amicus curiae for the Appellant, learned A.G.A. for the Respondent and have perused the evidence on record.

It was contended by the learned amicus curiae that the ocular witnesses have not supported the prosecution case, but the trial court had convicted the Appellant on the basis of the circumstantial evidence as well as admission of the Appellant in his statement u/s 313, Cr. P.C. Therefore, there was no basis for convicting the Appellant. It is true that the ocular witnesses Ramesh Chaudhary (P.W. 1), Subhash Chandra Yadav (P.W. 2) and Ravi Chandra Yadav (P.W. 3) have not supported the prosecution story and they were declared hostile. But there were other circumstantial evidence which were relied on by the trial court. The Apex Court in the case of Jagjit Singh v. State of Himachal Pradesh 1994 SCC (Cri) 176, held as below:

It is contended that the prosecution having put forward a case based on direct testimony of Kulwant Singh cannot later make it appear a case based on circumstantial evidence. We see no force in this submission. Obviously the presence of Kulwant Singh cannot be secured at all but that does not prevent the prosecution from relying on the evidence though circumstantial in nature and if such evidence is sufficient to bring home the guilt, the conviction should follow.

Moreover, the evidence of a hostile witness need not be rejected en bloc and if it is found that the testimony of hostile witness amounts to corroboration on certain fact, it should be acted upon. The Court should be slow to act on the testimony of such a witness. The guidelines for relying on the testimony of a hostile witness have been given by the Apex Court in the case of State of Rajasthan v. Bhawani and Anr. 2003 (3) SC 1115 : AIR 2003 SCW 3953, as below:

The fact that the witness was declared hostile by the Court at the request of the prosecuting counsel and he was allowed to cross-examine the witness, no doubt furnishes no justification in rejecting en bloc the evidence of the witness, but the Court has at least to be aware that prima facie, a witness who makes different statements at different times has no regard for truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to the same. The Court should be slow to act on the testimony of such a witness and normally it should look for corroboration to his evidence. The High Court has accepted the testimony of the hostile witnesses as gospel truth for throwing over board, the prosecution case which has been fully established by the testimony of several eye-witnesses, which were of unimpeachable character. The approach of the High Court in dealing with the case, to say the least is wholly fallacious.

The trial court has relied on the following circumstantial evidence to base conviction:

(i) The Appellant had taken loan from several persons and was not in a position to repay the same.

(ii) The Appellant along with his wife Smt. Saraswati deceased and two daughters Km. Kazal and Anshoo was residing in a rented quarter in Avas Vikas Colony, Gorakhpur, besides the quarter of his uncle Ramesh Chaudhary (P.W. 1).

(iii) Smt. Saraswati Devi, Km. Anshoo and Kazal were murdered in the rented house of the Appellant and there were incised injuries on their persons and their death was homicidal.

(iv) After the occurrence the people of locality apprehended the Appellant by causing injuries on his person and he was admitted in jail hospital, where his injuries were examined.

(v) The matter was promptly reported to the police by Ramesh Chaudhary (P.W. 1).

We would, therefore, now consider whether the above circumstances have been established.

Circumstance No. 1:

Ramesh Chaudhary though denied to have seen the occurrence stated that the Appellant Arvind was his real nephew and on the date of occurrence was residing in a quarter besides his quarter in Avas Vikas Colony and that Appellant was working in Railway Department on the post of OSI. The Appellant used to taken loan and he was worried about it. This evidence of Ramesh Chaudhary (P.W. 1) has not been challenged and the Appellant had admitted in his statement u/s 313, Cr. P.C. that it was correct that he had taken loan and was worried about the said loan. The case of the prosecution was that on account of loan the Appellant used to harass and beat him wife and children. Ramesh Chaudhary (P.W. 2) has no doubt stated that the Appellant was not harassing or beating his wife and children in his presence, but this fact was admitted by the Appellant in his statement u/s 313, Cr. P.C. Assuming that there is no evidence of harassment and ill-treatment of his wife and children by the Appellant, there is evidence on record that on account of loan taken by the Appellant he was worried and, therefore, the above circumstance has been established.

Circumstance No. 2:

It is not disputed that the Appellant alongwith his wife and two daughters and other children was residing in a rented quarter in Avas Vikas Colony, Mohalla Jharkhandi, P.S. Cantt. This fact has been proved by Ramesh Chaudhary (P.W. 1), Subhash Chand Yadav (P.W. 2) and Ravi Chand (P.W. 3), who stated that the Appellant was residing in a rented quarter in the above colony. Ramesh Chaudhary (P.W. 1), Subhash Chand Yadav (P.W. 2) and Ravi Chand (P.W. 3) were also residing in the said colony in the neighbourhood of the Appellant. It has also been established from the evidence of Ramesh Chaudhary (P.W. 1) that the Appellant took the above quarter on rent a day before the occurrence of this case. Therefore, it is established that on the date of occurrence the Appellant was residing in a rented quarter in Avas Vikas Colony.

Circumstance No. 3:

Ramesh Chaudhary (P.W. 1), Subhash Chand Yadav (P.W. 2) and Ravi Chand (P.W. 3) had established the above circumstance. Ramesh Chaudhary (P.W. 1) stated that when he reached the spot the wife and two daughters of the Appellant were lying injured in the rented house of the Appellant. The two daughters had died and the wife of the Appellant was alive, who was taken to the hospital, where she died. Subhash Chand Yadav (P.W. 2) stated that his quarter was situated near the temple. At about 5.00-5.30 p.m. he heard shrieks and came to the quarter of Appellant where he saw that the two daughters of Appellant were lying dead and the wife of the Appellant was injured, but alive. A crowd had collected on the spot. Ravi Chand (P.W. 3) also stated that he reached the spot alongwith Subhas Chand Yadav (P.W. 2) and saw that the two daughters of Appellant were lying dead and he came to know that his wife was sent to hospital. Constable Jai Prakash Pandey (P.W. 9) sated that on the date of occurrence he was posted as constable at police outpost Engineering College, Gorakhpur. Avas Vikas Colony was lying in the area of above police outpost. At about 5.30 p.m., he was informed by a public man that in Jharkhandi Colony near the temple one person had killed his two daughters and caused injuries to his wife who was alive. On the above information he alongwith Sub-Inspector Indresh Yadav and two constables reached on the spot, where he saw that two children were lying dead inside the house and the lady was alive. The public had arrested the Appellant. He and other constables took the wife of Appellant to the hospital, where she was examined by the doctor, who declared her dead. The Investigating Officer Indresh Yadav (P.W. 4) also stated that after registration of the case he visited the spot and saw that Km. Anshoo and Km. Kazal the daughters of the Appellant were lying dead in the rented room of the Appellant. He conducted the inquest of the dead body of above two children and thereafter came to hospital where the dead body of Smt. Saraswati wife of the Appellant was lying. The medical evidence of Dr. O. N. Gupta (P.W. 5) referred to above showed that death of three deceased was due to injuries on their person which were sufficient to cause death. The death of the three persons was, therefore, homicidal. The above evidence has not been challenged and the Appellant has also admitted this fact in his statement u/s 313, Cr. P.C. As such it is established that the occurrence of murder of two daughters of the Appellant as well as causing injuries on the wife of Appellant due to which she subsequently died took place inside the rented room of the Appellant.

Circumstance No. 4:

On the above circumstance there is evidence of Subhash Chand Yadav (P.W. 2) and Constable Jai Prakash Pandey (P.W. 9). Subhash Chand Yadav (P.W. 2) stated that when he reached the spot he saw that the persons of the locality had apprehended Appellant Arvind Chaudhary and were assaulting him. Constable Jai Prakash (P.W. 9) stated that when he reached the spot he saw that the person of the locality had seated the Appellant on the spot and his condition was serious and thereafter he was sent to jail hospital. Dr. D. K. Singh (P.W. 10) the then Medical Officer District Jail, Gorakhpur, stated that on 3.9.1999, the Appellant Arvind Chaudhary was admitted in jail hospital and he had examined him and found several injuries mentioned in injury report Ext. Ka-27 on his person. The fact as to how and in what circumstances the Appellant sustained injuries just after the occurrence was in his knowledge, but he had not explained it and stated in his statement u/s 313, Cr. P.C. that he became unconscious and does not know anything. Non-explanation of the injuries on his person by the Appellant provides a missing link and supports the evidence of Subhash Chand Yadav (P.W. 2), constable Jai Prakash Pandey (P.W. 9) and Dr. D. K. Singh (P.W. 10) that after the occurrence he was apprehended by the people of the locality and was beaten.

Circumstance No. 5:

Ramesh Chaudhary (P.W. 1) though has admitted to have prepared report Ext. Ka-1 stated that it was prepared by an employee of the police station but he identified his signatures on the report Ext. Ka-1. In his cross-examination he admitted that the facts mentioned in the report Ext. Ka-1 were correct. Head constable Balkaran Singh (P.W. 7) stated that on the date of occurrence Ramesh Chaudhary (P.W. 1) handed over a written report at the police station Cantonment at 7.30 p.m. on the basis of which he prepared chick report and registered a case. His above evidence coupled with the evidence of Ramesh Chaudhary (P.W. 1) also established that the matter was promptly reported.

The learned Sessions Judge has also placed reliance on the admission of the Appellant in his statement u/s 313, Cr. P.C. The admissibility and value of statement of accused u/s 313, Cr. P.C. was considered by the Apex Court in the case of Mohan Singh Vs. Prem Singh and Another, , and held as below:

The statement of accused u/s 313, Cr. P.C., is not a substantive piece of evidence. It can be used for appreciating the evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant Jha Vs. The State of Bihar, , by this Court if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement u/s 313, Cr. P.C. cannot be made the sole basis of his conviction.

In the instant case, we find that the circumstantial evidence referred to above are reliable and the cumulative effect of the above circumstances will lead to definite conclusion that it was the Appellant alone who committed murder of his wife and two daughters inside his house. Therefore, inculpatory part of statement of Appellant in which he had admitted the circumstantial evidence led by the prosecution can be taken aid to lend assurance to the evidence of the prosecution. Therefore, the admission of the Appellant u/s 313, Cr. P.C. taken as a sole basis of his conviction but his admission can be taken aid of to lend assurance to the evidence of the prosecution.

In view of our above discussions and observation, we arrive at the conclusion that the circumstantial evidence led by the persecution coupled with the statement of Appellant u/s 313, Cr. P.C. established the guilt of the Appellant. Therefore, we find no force in the appeal.

The appeal is accordingly dismissed. Conviction and sentence of Appellant u/s 302, I.P.C. awarded by the trial court are confirmed. The Appellant is in jail. He shall be kept there to serve out the remaining sentence.

Copy of this order be sent to C.J.M., Gorakhpur and Superin-tendent Central Jail, Varanasi, for information and necessary action.