Judgment reserved on 13.03.2018 Judgment delivered on 28.3.2018 Court No. 14
Case :- CRIMINAL APPEAL No. - 23 of 2003
Appellant :- Surendra Prasad Patel Respondent :- State Of U.P. Counsel for Appellant :- C.K. Parekh
Counsel for Respondent :- Govt. Advocate
Hon'ble Umesh Chandra Tripathi,J.
1. Heard Shri C. K. Parekh learned counsel for appellant and Shri L.D. Rajbhar learned A.G.A., for the State.
2. This appeal is directed against the judgment and order dated 11.12.2002 passed by learned Addl. Sessions Judge/Fast Track Court (2), Varanasi in S.T. No. 878 of 1997 (State Vs. Surendra Prasad Patel) arising out of case crime no. 99 of 1997, Police Station Phulpur, District Varanasi whereby accused-appellant Surendra Prasad Patel was convicted for the offence punishable under Sections 304 and 394 IPC India Penal Code (hereinafter referred to as “IPC”) and was sentenced to:-
(I) rigorous imprisonment for a period of 5 years and to pay fine of Rs. 10,000/- and in default of payment of fine, rigorous imprisonment for further two years under Section 304 IPC; & (ii) rigorous imprisonment for a period of ten years and to pay fine of Rs. 5,000/- and in default of payment of fine, rigorous imprisonment for further one year under Section 394 IPC.
3. All these sentences were directed to run concurrently.
4. Brief facts of the prosecution are that on 22.6.1997 Bacchan Lal Maurya, cousin brother of informant Bhaiya Lal having Rs. 4,500/- alongwith one Suresh Kahar was returning from Village Newada to his residence. Three miscreants of young age were standing before 250-300 steps from Sindhaura Phulpur Road. A motorcycle of red colour was also parked there without registration number. When Bacchan Lal Maurya reached there, all the three miscreants assaulted him, out of which, one miscreant stabbed in his abdomen and second one took away the money from his pocket. On alarm, several persons reached on the spot, then all the three miscreants fled away from the scene on the motorcycle. Injured Bacchan Lal Maurya was brought on 23.6.1997 at 2:30 AM to Sudha Surgical Nursing Home, Bhojubir Varanasi where Dr. K.K. Singh has given first aid to the injured and referred to BHU Hospital. On 24.6.1997 at 1:45 PM injured Bacchan Lal Maurya was admitted in Surgical Ward of BHU Hospital and during treatment on 26.6.1997 at 8:15 PM injured Bacchan Lal Maurya died. Inquest of the dead body of deceased Bacchan Lal Maurya was prepared on 26.6.1997. The post mortem of dead body of Bacchan Lal Maurya was conducted on 27.6.1997 at 2:30 PM by Dr. Rahul Khanna who has prepared Ex.Ka-9.
5. As per statement of Dr. Rahul Khanna and post mortem report, deceased Bacchan Lal Maurya died due to ante- mortem stab wound. Cause of death was septicemic shock as a result of peritonitis.
6. On 18.7.1997 appellant was arrested in Case Crime No. 152/1997 under Section 307 IPC and Case Crime No. 153/1997 under Section 25 Arms Act by police, Badagaon Varanasi. Appellant confessed before the Investigating Officer (in short 'IO') on 19.7.1997 that he has committed the offence with co-accused Ashok Patel and Raju Barai. In District Jail, Varanasi on 20.8.1997 identification parade of appellant was conducted and he was identified by PW-3 Suresh Kahar. After investigation, police has submitted chargesheet against the appellant.
7. Learned Trial Court has framed charge for offence punishable under Section 394 and 304 IPC against appellant and explained to him. He pleaded not guilty and claimed to be tried.
8. To substantiate charge against accused appellant, prosecution has examined PW-1 IO Gaya Prasad Verma, PW- 2 (Constable Jai Prakash Pandey), PW-3 Suresh Kahar, PW-4 Dr. K.K. Singh, PW-5 Dr. Rahul Khanna, PW-6 Dr. Ashok Kumar Singh and PW-7 Sarwagya Ram Mishra, City Magistrate.
9. After closure of the prosecution evidence, statement under Section 313 Code of Criminal Procedure (Cr.P.C.) of the appellant Surendra Prasad Patel was recorded wherein he pleaded innocence and stated that PW-3 Suresh Kahar has falsely deposed against him to escape himself from criminal liability. After his arrest, Inspector Badegaon has shown him to some people. He has been falsely implicated in this case.
10. In defence, no evidence was adduced, either oral or documentary.
11. Learned counsel for the appellant contended that occurrence has taken place in the night and it was not possible for the witness to identify the accused. It is alleged that co-accused Ashok Patel and Raju Barai were also involved in the occurrence. Police has not filed any charge- sheet against these two accused. Learned Trial Court has passed the impugned judgment and order without properly appreciating the evidence available on record.
12. Learned A.G.A., has contended that there is no any illegality in the order passed by the learned Trial Court and as such the appeal is liable to be dismissed.
13. In this case appellant has been made accused on the basis of confessional statement before the IO. He confessed before police that he alongwith co-accused Ashok Patel and Raju Barai has committed the offence. Confession before the police cannot not be proved against accused of any offence as per provisions of Sections 25 and 26 of the Indian Evidence Act. Sole witness of fact PW-3 Suresh Kahar admitted before the court that he had gone to jail to identify three miscreants. Prosecution has not explained action taken against the co- accused Ashok Patel and Raju Barai. In this case, evidence of identification of the appellant by sole witness Suresh Kahar before court as well as identification in jail is available before the court. PW-3 Suresh Kahar stated that he saw the faces of miscreants in flash light of motorcycle. He further admitted that after committing loot, miscreants started the motorcycle and fled away from the spot. He identified the miscreants after starting motorcycle. This statement of PW-3 Suresh Kahar is not reliable. It was least possible for Suresh Kahar to identify the accused in the light of motorcycle. When focus of light flashes on the face of a person, that person cannot identify the riders of motorcycle. It is also least possible to identify the riders of motorcycle from the back of the motorcycle.
14. Here it must also be noted that if PW-3 Suresh Kahar might have successfully identified the accused, then he should have specifically narrated that appellant was either driving the motorcycle or sitting on middle or rear seat. In his statement, Suresh Kahar has not specified whether appellant was driving the motorcycle or was sitting on the middle or rear seat. This also shows that PW-3 Suresh Kahar has not identified the appellant or other accused who have committed the loot and caused injury to injured Bacchan Lal Maurya.
15. IO Sub Inspector Daya Ram Verma has recorded confessional statement of appellant on 19.7.1997 but identification parade was not conducted just after his arrest or his statement recorded by the IO. His identification parade was conducted after one month i.e. on 20.8.1997. PW-3 Suresh has not identified the appellant in first round or second round but he identified him in third round. This fact is admitted by PW-6 City Magistrate Sarwagya Ram Mishra who conducted the identification parade. This shows that witness Suresh Kahar was not much more confident or sure that appellant has taken part in dacoity and murder. PW-3 Suresh Kahar admitted in his cross-examination that he has not disclosed the identification of the accused to the IO. If Suresh Kahar had identified the appellant on spot, there was no reason for him not to disclose the identification of applicant/accused to the IO. Witness Suresh has not specifically stated before the Court that appellant has committed the offence. He has only stated that he identified the appellant present in the court, in jail.
16. For the aforesaid reason, identification of the applicant by PW-3 Suresh Kahar is highly doubtful. In the first information report, it is mentioned that occurrence has taken place on 22.6.1997. Time of occurrence is not mentioned in the first information report. Later on informant/complainant Bhaiya Lal disclosed before the IO that occurrence has taken place on 23.6.1997 at about 7:30 PM. Informant Bhaiya Lal could not be examined because he died during trial as disclosed by PW-3 Suresh Kahar. Even if, it is presumed that occurrence has taken place on 23.6.1997 at 7:30 PM. FIR has been lodged on the next day on 24.6.1997 at 11:00 PM with delay of about 27 hours. This delay in lodging the first information report is not explained by the prosecution.
17. PW-3 Suresh Kahar stated that just after occurrence they proceeded to hospital by Jeep but as per PW-4 K.K. Singh, he treated Bacchan Maurya at 2:30 AM. This means injured Bacchan Maurya reached at hospital after seven hours of the occurrence. Dr. K.K. Singh referred the injured to BHU hospital at the same time but injured reached at BHU hospital on 24.6.1997 at 1:45 PM after a gap of 35 hours of reference made by Dr. K.K. Singh. This ambiguity has not been explained by the prosecution. Learned trial court without considering all these facts passed the impugned order relying on the statement of PW-3 Suresh Kahar.
18. For the aforesaid reasons, I am of the view that prosecution has failed to prove the guilt of appellant beyond reasonable doubt. Learned Trial Court has recorded the erroneous finding of conviction under Section 304 and 394 IPC against the appellant without properly appreciating the evidence, facts and circumstances of case, which cannot be sustained. Appellant deserves to be given benefit of doubt.
19. The criminal appeal is accordingly allowed. Conviction of appellant Surendra Prasad Patel under Section 304 and 394 IPC is set aside and he is acquitted.
20. The appellant is on bail. He need not surrender. His bail bonds stands cancelled.
21. Office is directed to send a certified copy of this order to Sessions Judge, Varanasi for its compliance and send back the lower court record to court concerned.
Order Date :- 28.3.2018 Jaswant