Diwesh Kumar vs State of U.P.

Surendra Vikram Singh Rathore, J.—Mrs. Soniya Mishra, Advocate holding brief for Sri Rajiv Mishra, learned counsel for the appellant, Sri Sharad Dixit, learned A.G.A. for the State were heard.

Instant criminal appeal has been preferred by appellant-Diwesh Kumar challenging the judgment and order dated 24.10.2007 passed by learned Additional Sessions Judge, Court No. 3, Hardoi, in Sessions Trial No. 463 of 2006, relating to Case Crime No. 329 of 2006, under Section 302 IPC, Police Station Mallawan, District Hardoi, whereby the appellant Diwesh Kumar was convicted for the offence under Section 302 IPC and was sentenced with imprisonment for life and also with fine of Rs. 10,000/- with default stipulation of one year''s additional rigorous imprisonment.

It is a case of murder of one Guddi Devi aged about 25 years and his son Vikas aged about 8 years. The deceased Guddi Devi was the daughter-in-law of the complainant Bihari Verma. Complainant Bihari Verma lodged an FIR of this case at Police Station Mallawan, District Hardoi on 08.05.2006 at 11:00 a.m. alleging therein that his native village is Bhithai, Police Station Madhoganj, District Hardoi but for the last about one year he alongwith his daughter-in-law Smt. Guddi Devi (deceased), his grand son Vikas (deceased) aged about 8 years and grand daughter Km. Muskan aged about three and half years was living in Kasba Mallawan, Mohalla Baziganj in the house of Arjun Singh on rent. His son Munesh Verma (husband of deceased Guddi Devi) was of weak mind and for the last about 4 months he was living in Ghaziabad with his brother-in-law. On 07.05.2006 at about 4:00 p.m. he went to his own native village Bhitai to bring foodgrains. In the morning he got the information of the murder of his daughter-in-law and grand son. On this information he immediately rushed to his house in Mallawan and saw that Smt. Guddi Devi and his grand son Vikas have been murdered by causing injuries with a sharp edged weapon. Every other household goods were found safe. It was also alleged that his "Nati" Diwesh, (maternal grandson) resident of village Kabeerpur Khamhauli, Police Station Bangarmau, District Unnao used to visit his house and he was instrumental in settling him in village Mallawan in a rented house. He developed illicit relations with the deceased Guddi Devi who had given him Rs. 60,000/- which was being demanded back by his daughter-in-law. Feeling aggrieved thereby, the appellant has caused the death of his daughter-in-law and grand son. It was also mentioned that his grand daughter Km. Muskan has told him that in the last night Diwesh Dadda had come to her house. The complainant got the FIR of this case scribed by Haseen Ahmad Farooqui and lodged it at the police station at 11:00 a.m. After registration of the case the inquest proceedings were conducted on the dead bodies and after completing the other formalities dead bodies were sent for postmortem. Postmortem on the body of the deceased Vikas was conducted on 09.05.2006 at 2:30 p.m. and the duration of death was about one and half day old. Following ante-mortem injury was reported in the postmortem report:--

(A) Incised wound 11 cm x 2 cm x oseophagus deep on front of neck 5 cm below the chin. Margins were clean cut. Underneath Trachea, oseophagus, neck vessels and outer sternum found clean cut.

In the opinion of the doctor the cause of death was haemorrhage as a result of ante-mortem injury.

The postmortem on the body of the deceased Smt. Guddi Devi was conducted on the same day at 2:00 p.m. and following ante-mortem injury was reported in the postmortem report:

(A) Incised wound 8 cm x 3 cm x oseophagus deep on front of neck 9 cm below the chin. Margins are clean cut. Underlying Trachea, oseophagus, neck vessels and outer sternum found cut.

In the opinion of the doctor the cause of death was shock and haemorrhage as a result of ante-mortem injuries.

During investigation the place of occurrence was inspected and blood stained and plain earth was taken into custody. The blood stained clothes of both the deceased were also taken into custody. During course of investigation the appellant Diwesh Kumar was arrested on 14.05.2006 at about 4:00 p.m. on the information of a secret informer and on his pointing out the alleged weapon of offence which was sickle (Hasiya) was recovered and sealed. Alongwith other recovered articles the sickle was also sent for chemical examination. As per the report of the chemical examiner the sickle was found stained with blood but it was not reported that it was human blood. On the blood stained clothes of the deceased and the blood stained earth, human blood was found. The said recovery is alleged to have been made in the presence of Indrapal Singh s/o. Chandrika and Maan Singh s/o. Ram Autar.

After completing the investigation, the charge-sheet was filed against the accused appellant.

The case of the defence which emerges from the suggestion given to the witnesses and from his own statement under Section 313 Cr.P.C. was that he has been falsely implicated and he had no illicit relations with the deceased Guddi Devi.

In order to prove its case, the prosecution has examined PW-1, the complainant, Bihari Verma, PW-2 Munesh Verma, husband of the deceased, Guddi Devi, PW-3 Km. Muskan a child witness aged only about three years, PW-4 Dr. D.S. Rathore, who has conducted the postmortem on the body of the two deceased persons, PW-5 Constable Awadhesh Kumar Mishra who has prepared the chik report and G.D. of this case, PW-6 S.I. Sarnath Singh Yadav, the Investigating Officer of this case.

No evidence in defence was adduced on behalf of the appellant.

After appreciating the evidence on record, learned trial court convicted the appellant as above, hence the instant appeal.

Submission of the learned counsel for the appellant was that in this case the complainant Bihari Verma has not supported the case of the prosecution and he has gone to the extent of disowning his own FIR. Admittedly, he was not a witness of fact. PW-2 Munesh Verma is the husband of the deceased was also not a witness of fact. PW-3 Km. Muskan is a child witness aged only about three years and the learned trial court has placed implicit reliance on the evidence of this child witness. It has further been argued that the complainant got information of this incident from some unknown person but who was the person who gave him information of this incident, was not disclosed by the complainant in his FIR. The person who had given him the information of this incident has not been produced. On the other hand, the complainant during trial has stated that he got the information of this incident through a police constable of Police Station Mallawan. On the strength of this statement it has been argued that the FIR loses its corroborative value because some other information had reached to the police regarding this incident, on the basis of which the police has sent the information to the complainant. It has further been submitted that none of the public witness of the alleged recovery under Section 27 of the Indian Evidence Act was produced by the prosecution and the sole testimony of the Investigating Officer ought not to have been believed on the point of recovery.

Learned Additional Government Advocate has submitted that in the instant case learned trial court has given an anxious consideration of the entire evidence and he has derived motive from the evidence of PW-2 Munesh and he has relied upon the direct testimony of eye witness PW-3 Km. Muskan as has also recorded corroboration of the same by the recovery of the weapon of offence on the pointing out of the appellant. Therefore, learned trial court was absolutely right in convicting the appellant. Hence, the judgment is well reasoned and needs no interference in the instant appeal.

The first point to be considered is the FIR in this case. FIR in a criminal case is a valuable document as the entire prosecution case revolves around it. Though it is not a substantive piece of evidence but definitely it is the pivotal document on which the entire prosecution case rests.

As per the version of the FIR the complainant got the information of this incident while he was in his native village Bhitai. Thereafter he came to his rented house in Kasba Mallawan and he was informed by his grand daughter PW-3 Km. Muskan that Diwesh Dadda had come to the house. Accordingly, the FIR was lodged but the name of the person who gave him information in village Bhitai was not mentioned in this FIR. Even the Investigating Officer made no effort to find out as to who was the person who gave information of this incident to the complainant. In the peculiar facts of this case the person who reached the place of occurrence at the earliest would have been the most important witness. Identity of the person who gave information of this incident for the first time has not been disclosed at any point of time. The person who first reached the place of occurrence was the most important witness because only he could have stated as to what was told by Km. Muskan to him at that time. It has come in evidence that the appellant is closely related to the complainant. PW-1 during trial has expressed his ignorance regarding the alleged illicit relations of the deceased with the appellant. He has also stated that he got the information of this incident through a constable while he was in his village Bhitai. It is pertinent to mention here that this witness was declared hostile by the prosecution and he was cross examined by the public prosecutor but it has nowhere been challenged in the cross examination by the public prosecutor that the information of this incident was not given to this witness by a police constable. However, in the cross examination by the public prosecutor he has stated that he lodged the FIR of this case but in his cross examination on behalf of the defence this witness has stated that he got the information of this incident through a constable of Police Station Mallawan and has also stated that scribe of the FIR Hussain Ahmad Farooqui was not known to him and he was called by the police personnel and thereafter on the dictation of the police personnel the FIR was prepared and his thumb impression was obtained on the same. Thus in his cross examination he has disowned his FIR. Law is settled on the point that the evidence of a hostile witness does not stand wiped out from the record. The prosecution has not challenged that part of his statement where he has stated that information of this incident was given to him by a police constable. It is true that when the origin of the FIR comes under the shadow of doubt then the same, by itself, would not be a ground to discard the entire case of the prosecution on this score alone but definitely a duty is cast upon the Court to scrutinize the prosecution evidence with utmost care and caution.

It is pertinent to mention here that the prosecution could have explained this fact by producing the scribe of the FIR but he has not been examined as a witness. So in the peculiar facts of this case withholding of the scribe of the FIR, would lead to the only conclusion that information was sent by police of Police Station Mallawan to the complainant. So the only conclusion which can be derived by this circumstance would be that some information of this incident was given at the police station and the said information was sent by police to the complainant but who gave the said information at the police station and what was that information has been withheld by the prosecution. Withholding of such important information regarding the incident would lead to the inference that by that time the name of the assailant/assailants was not within the notice of the police and that is the reason the same was not informed to the complainant nor the said information was registered as FIR inspite of the fact that it was a case of double murder. It shows that by that time the case of prosecution was in embryo and was not given any shape. It was only after arrival of the complainant that name of the appellant emerged as accused on the basis of information of PW-3 Km. Muskan. So in the instant case in view of the aforesaid circumstances the other evidence has to be considered with extra care and caution.

There is no dispute to the fact situation that Smt. Guddi Devi and Vikas both were done to death by the same weapon as similar nature of injuries were found on the same part of body of both the deceased i.e. on the front of neck. The duration of the death was reported by the doctor to be one and half day old. So it shows that the deceased were done to death in the intervening night of 7/8-05-2006 at about midnight and it has also not been challenged.

Now we will proceed to consider the evidence regarding the recovery of weapon of offence on the pointing out of the appellant. On the point of recovery, the sole evidence is of the Investigating Officer, S.I. Sarnath Singh Yadav who has proved the recovery under Section 27 of the Indian Evidence Act.

Section 27 of the Indian Evidence Act reads as under:--

How much of information received from accused may be proved:-- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

For the application of Section 27 of the Indian Evidence act the statements must be split into its component. Only those component or portions which were immediate cause of the recovery would be legal evidence and not the rest which must be excised and rejected. Reference on this point may be made to the pronouncement of Hon''ble Apex Court in the case of Mohmed Inayatullah Vs. The State of Maharashtra, . The fact discovered on an information supplied by the accused in his statement regarding the fact is admissible in evidence. If something new is discovered or recovered from the accused which was not within the knowledge of the police before recording such disclosure statement of the accused. A confession made by a accused while he was in custody must be excluded from the evidence in view of the provision of Section 26 of the Indian Evidence Act but the exception to Section 26 is Section 27 of the Indian Evidence Act which permits that part of the statement to be admissible which distinctly relates to the recovery.

Hon''ble the Apex Court in the case of Udai Bhan Vs. The State of Uttar Pradesh, has considered this legal aspect and has observed in para 7. The relevant part of para 7 reads as under:--

"Thus, Section 27 partially removes the ban placed on the reception of confessional statements under Section 26 . But the removal of the ban is not of such an extent as to absolutely undo the object of Section 26 . All it says is that so much of the statement made by a person accused of an offence and in custody of a police officer, whether it is confessional or not, as relates distinctly to the fact discovered is provable."

In the case of Govindaraju @ Govinda Vs. State by Sriramapuram P.S. and Another, . Hon''ble Apex Court has not placed reliance on the recovery made under Section 27 of the Indian Evidence Act because the independent witness of recovery turned hostile. In the case in hand independent witnesses of recovery have not been produced.

What is admissible by virtue of Section 27 of the Indian Evidence Act is that part of the information which lead to the recovery and therefore, the prosecution is obliged to prove the said information which lead to the recovery by reliable evidence. It is not the opinion framed thereon by the police officer which is material under Section 27 of the Indian Evidence Act. In other words, the exact information given by the accused while in custody which lead to the discovery of articles has to be proved. Reference on this point may be made to the pronouncement of Hon''ble Apex Court in the case of Bodh Raj @ Bodha and Others Vs. State of Jammu and Kashmir, .

It is pertinent to mention here that PW-6 the Investigating Officer Sarnath Singh Yadav, has not stated in his evidence during trial as to what was the statement given by the witness on the basis of which recovery was made. He has simply stated that he recorded the statement of the accused after his arrest at 16:00 hours on 14.05.2006 and thereafter on his pointing out the blood stained sickle (weapon of offence) was recovered and its recovery memo was prepared. Section 27 of the Indian Evidence Act makes that part of the statements of the accused admissible which distinctly relates to the recovery. It is not the recovery itself which is relevant or which is made admissible. As stated earlier, human blood was not reported on this sickle during chemical examination. This recovery is alleged to have been made in the presence of two independent witnesses but none of the two witnesses of such recovery have been examined in support of this recovery. The only evidence on the point of recovery is the evidence of the Investigating Officer and in our considered view it would not be safe to place implicit reliance on the sole testimony of the Investigating Officer on this point because the Investigating Officer are interested in the result of their investigation. It is not a case where no public witness was ready to accompany the police party. Two independent witnesses accompanied the police party but none of them has been examined by the prosecution. There is yet another additional ground not to act on this evidence of recovery. This incriminating circumstance was not properly put to the appellant in his statement under Section 313 Cr.P.C. The only question which was put to the appellant regarding recovery on his pointing out was that the Investigating Officer Sarnath Singh Yadav prepared the recovery memo of sickle (Hasiya) which is available on record as Exhibit Ka-15. It was not put to the appellant that he gave any statement and on the basis of the said statement recovery of the weapon of offence was made. So all these grounds persuades us to exclude the evidence alleged recovery under Section 27 of the Evidence Act.

Admittedly, PW-1 and PW-2 are not the eye witnesses of this incident and PW-3 Km. Muskan is the only witness who has been examined as eye witness of this incident by the prosecution. The age of this witness, as mentioned in the FIR, was about three and half years. However, during trial the complainant in his evidence has stated that she was aged about three years at the time of incident. In her examination-in-chief this witness has disclosed her age to be 04 (four) years when her statement was recorded. Her statement was recorded after more than a year of the incident on 05.06.2007. Several questions were put to this witness by the learned trial Judge before recording her statement and after putting such questions learned trial court recorded its satisfaction that she is competent to understand the questions and to give its reply. We have also seen the order sheet of the said date i.e. 05.06.2007. It is clear from the order of the court that even the public prosecutor himself was not satisfied whether this witness was capable of understanding the question and to give its answers. First of all we shall go through some questions which were put to the witness and the replies given. She was asked as to where her mother resides? She has replied that she lives in the house. She has not stated that her mother is no more. She was also asked what is the name of his brother? She has replied that name of his brother was ''Dadda''. While the other deceased Vikas was her elder brother and Dadda is actually the appellant as per evidence. She was also asked whether it is day or it is night? Then she expressed her ignorance to reply this question. She was also asked as to what is the name of her village then she could not tell the name of her village. So she was not aware of the fact whether her mother was alive or not. She was not able to tell the name of his own real brother and she could not even tell whether it was day or night. But inspite of that the learned trial court has considered her to fit to give statement. There is yet another aspect of this matter which furthers reduces evidentiary value of this witness. Perusal of the statement of this witness shows that she was examined through Mamta Patel wife of Shishupal resident of pali, District Kanpur Nagar. Thus it transpires that this lady Mamta Patel put the question and has told the reply of this witness in the court which were reduced into writing. Indian evidence Act makes no such provision for child witness. Such a provision exist in Section 119 of Evidence Act regarding Dumb witnesses only. It has come in the evidence that after the incident Km. Muskan is living in the house of Shishupal who happens to be son of brother of the complainant. PW-2 father of this witness has given statement that the appellant has not murdered his wife and son because he was looking after them. He has also stated that he asked the police to give the custody of his daughter to him but the police declined for the same. Learned trial court has also failed to appreciate that as per the position of this witness as shown in the site place, she could not have witnessed the murder of his brother Vikas because body of Vikas in the Kitchen was this witness, as per site plan, was present in other room. In spite of that she has stated about the murder of his brother Vikas. So the only conclusion is that she has been tutored.

Learned trial court in its judgment has mentioned several case laws and on the basis of the same he was of the view that the evidence of a child witness cannot be rejected simply on the ground that she was a child witness. There is no dispute to the aforementioned legal position.

Reference on this point may be made to the pronouncement of Hon''ble Apex Court in the case of Ratansinh Dalsukhbhai Nayak Vs. State of Gujarat, .

Hon''ble Apex Court in the case of Suryanarayana Vs. State of Karnataka, has considered the legal aspect regarding the evidentiary value of a child witness and has observed in para 5 as under:--

"The evidence of the child witness cannot be rejected per so, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements of the child witness. The evidence of PW-2 cannot be discarded only on the ground of her being of tender age."

In the case of Panchhi and others Vs. State of UP, Hon''ble Apex Court has held that the evidence of the child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what other tell him and thus an easy prey to tutoring. The evidence of the child witness must find adequate corroboration before it is relied upon, as the rule of corroboration is of practical wisdom than of law. Similar view was expressed by Hon''ble Apex Court in the case of State of U.P. Vs. Ashok Dixit and Another, . Though in the facts of this case Hon''ble the Apex Court has relied upon the evidence of child witness who was aged about 4 years at the time of the incident. But when his statement was recorded he was aged about 6 years. Hon''ble the Apex Court has quoted the statement of this witness and perusal of the same shows that he completely followed the question put to him and has properly answered the same. But in the facts of the instant case we are not satisfied even with the satisfaction of the learned trial court that the child witness Km. Muskan was in a position to understand the questions put to her and to reply the same. The public prosecutor was also of the same view. It is true that child witness can be relied upon but whether his evidence can be acted upon or not depends on the facts of each case. Tenderness of age of the child witness is also an important factor. In the instant case Km. Muskan was only about three years of age.

We have gone through the almost each and every case relied upon by the learned trial court and also several other cases but in none of the case laws we find that any child witness aged about 3 years was relied upon. In the instant case it transpires from the evidence of Km. Muskan that her statement was recorded through Mamta Patel which shows that the trial court itself was not satisfied that Km. Muskan will follow the questions put to her by the court and the court itself would not be able to understand the answers given by this witness and therefore, her evidence was recorded through Mamta Patel. Perusal of the questions which were put to judge the competence of this witness to testify as a witness also shows that learned trial court has simply made a formality and has not properly evaluated the competence of this witness. The evidence of this witness was recorded in an unusual manner. So in these circumstances we find ourselves unable to act upon such solitary testimony of Km. Muskan.

Learned trial court has also placed reliance on the evidence of PW-2 on the point of motive because PW-2 Munesh has stated that the deceased had given Rs. 60,000/- to the appellant and she was demanding back the said money. When this fact was within the notice of father-in-law and the husband of the deceased then virtually these two persons would have been the best person to demand the said money from the appellant. But neither PW-1 nor PW-2 has stated that in their presence, at any point of time, the deceased made demand of money from the appellant or any altercation between the two took place in their presence. So the evidence of PW-2 on the point of motive was also not inspiring. Even otherwise the motive, howsoever strong it may be, cannot take place of proof. Thus in view of the discussion made above, we are of the considered view that the appellant Diwesh Kumar deserves to be extended benefit of doubt.

Accordingly, this appeal deserves to be allowed and is hereby allowed. Appellant is in jail. He shall be released forthwith, if not, wanted in any other case. He is acquitted of the charges levelled against him. He be set at liberty.

Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.