Deepak vs State CRLSJ 1011/22 29/03/23 [ ALOK JJ ] [ PATNA HIGH COURT ]

• Sections 366A, 376 and 34 IPC POCSO ACT Section 4 Procuration of minor girl and rape Statement of victim cannot be trustworthy in the light of the fact adduced during evidence before the Court is quite inconsistent with the story of prosecution Her evidence does not inspire confidence and such evidence cannot be trustworthy No injury was found on victim’s body – In Doctor’s opinion on the basis of pathological and radiological findings, there is no sign of sexual assault and the age of the victim is about 17-18 years Out of eight factual witnesses, PW-1, PW-2, PW-3, PW-4, PW-5 and PW-7 (six in numbers) have been declared hostile and so far as PW-9 (informant) and PW-6 are concerned, they have not been declared hostile but they are not eye witness of the actual occurrence Occurrence took place on 08.06.2015 and information regarding the said occurrence was given to concerned police station on 10.06.2015 when place of occurrence is merely 2 km away from the concerned police station – 1.0. has not been examined – Accused entitled to benefit of doubt Conviction and sentence set aside Appeal allowed. [Paras 23, 28, 31 and 32]

31. From perusal of the FIR it is crystal clear that initial version of the prosecution story has been narrated by none else than informant who is father of the victim himself but so far as deposition of PW-9 (informant) is concerned, during cross examination informant has stated that neither he is aware of the author of the FIR nor does he know about the contents of the same then the question arises who has prepared the initial version of FIR which puts question mark on the said version of prosecution. From perusal of record it is crystal clear that out of eight factual witnesses, PW-1, PW-2, PW-3, PW-4, PW-5 and PW-7 (six in numbers) have been declared hostile and so far as PW-9 (informant) and PW-6 are concerned, they have not been declared hostile but they are not eye witness of the actual occurrence. PW-9 who is informant of the case during cross examination he has stated that he did not know who is the author of the written report and he cannot point out what is mentioned in the said written report which makes the whole prosecution story doubtful. One of the witnesses namely Md. Saheb who puts signature on written report has not been examined. Apart from the said discussions made above, story of prosecution creates doubt in light of the factthat occurrence took place on 08.06.2015 and information regarding the said occurrence was given to concerned police station on 10.06.2015 when place of occurrence is merely 2 km away from the concerned police station. He further submitted that in one column of formal FIR, there is interpolation regarding entries and no plausible explanation has been given regarding the said delay in lodging the FIR and said interpolation.

32. It is worth to note that I.O. has not been examined and contention of learned counsel of the appellant is quite sustainable in the light of the fact that on account of non examination of the investigating officer, the place of occurrence has not been identified and the veracity of the prosecution witnesses has not been tested as defence has not got opportunity to test the veracity of prosecution witnesses in the light of oral statement given before the investigating officer.

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DEEPAK KUMAR VS STATE OF BIHAR JUDGMENT PATNA HIGH COUTT

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NATHU MUNDA vs STATE OF ASSAM CRLA 108/17 04/03/20 

BEFORE ( DOUBLE BENCH)
HON’BLE MR. JUSTICE SUMAN SHYAM
HON’BLE MR. JUSTICE HITESH KUMAR SARMA 

[ GAUHATI HIGH COURT ]

• Section 302 IPC Evidence Act Section 106 Murder Burden of proving Accused and deceased usually stayed together in the house do not necessarily mean that on the date as well at the time of occurrence also, they were together Prosecution has not been able to discharge its initial burden of proving the case as none of the witness has implicated the accused-appellant except the fact that the accused was in his house on the date of occurrence and the deceased usually resided with him there in that house But, there is no evidence to establish that at the time of occurrence, the deceased was with the accused in his house Not find the conviction of the accused is based on evidence on record. Therefore, he deserves acquittal on benefit of doubt.

Relevant Paras 

12) The evidence of PW3 & PW4 has no bearing on the decision of this case as none of them has indicated in their evidence as to the source of their information that the accused- appellant had assaulted the deceased. Therefore, their evidence remains hearsay having no evidentiary value.
13) PW5, Dr. Debarshee, is the autopsy doctor. On 15.07.2016, she had performed the postmortem examination on the dead body of the deceased Somari and found as follows.
External Appearance: A female dead body of average built and swarthy complexion with eyes closed and mouth partially opened. Wearing a red colour blouse and brown petticoat. Swelling of the left perioribital area is present. The rigor mortis is found to be present all over the body and the body was cold to touch externally and warm internally.
Injuries:-
1. A contusion of size 3 cm x 2 cm is present in the 6th intercoastal space in the mid axillary line on the right side of the chest;
2. A contusion of size 16 cm x 14 cm is present over anterolateral aspect of left arm along with swelling;
3. The left ear lobule is found to be lacerated at places. The margins of the wound are found to be contused and irregular;
4. Sternum is found fractured in its upper one third;
5. 2nd, 3rd, 4th, 5th and 6th ribs are found fractured in the mid clavicular
in the right chest;
6. 2nd, 3rd, 4th and 5th ribs are found fractured in the mid calvicular line on the left side of chest.
On examination of cranium and spinal canal: Scalp healthy. Left temporalies muscle found
contused at places. Skull and vertebrae are healthy. Membrane and brain are pale. Spinal cord not examined.

On examination of the abdomen: The superior surface of the liver is found lacerated and the size of the laceration is 6.5 cm x 1 cm x liver parenchyma deep. Spleen was healthy. Kidneys are pale. The bladder mucosa was pale and the bladder cavity was empty. The walls were healthy and on dissection, the abdominal cavity was found to contain 1200 ml liquid and clotted blood. Peritoneum was pale. Mouth, pharynx and oesophagus, mucosa was pale in stomach. Mucosa was pale and the stomach cavity was empty and small intestine, mucosa was pale and contents glue like contents. Large intestine, mucosa was pale and contained gaseous and fecal matters.
Thorax:- Walls as described. Ribs and carrilaged as descried. On dissection, the chest cavity was found to contain 400 ml liquid and clotted blood.
Pleurae:- Pleurae were pale and lacerated on the right side at places. Larynx and trachea: mucosa were pale. Right lung was found lacerated and contused at places. Left lung was contused at places. Pericardium was contused at places. Heart was healthy and chambers were found empty. Thorasic vessels were found healthy. Organs of generation externally healthy and internally uterus was empty and healthy. Others were found healthy.

The opinion of the doctor is follows:
Death was due to hemorrhagic shock as a result of the injuries sustained over abdomen and chest as described. All the injuries described were ante mortem and caused by blunt force impact. Approximate time since death 6-12 hours.
14) The evidence of PW6, the investigating officer, is that on 15.07.2016 he had received the FIR from PW1 and thereafter he had investigated into the case. He prepared the sketch- map of the place of occurrence vide Ext. 5. He also caused the inquest of the dead body done by one Executive Magistrate, namely, A. Baruah. He also visited the place of occurrence and sent the dead body of the deceased for postmortem examination. He also found the accused persons at the place of occurrence and arrested him. He recorded the statement of the accused-appellant and after completion of the investigation filed the charge-sheet. He has confirmed in his evidence that the PW2 had made a statement before him that the accused-appellant had told him that on the last night he had given a slap on the body of the deceased following which she fell down.
15) The evidence of the autopsy doctor (PW5) and her opinion show that the deceased had died due to the hemorrhagic shock as a result of the injuries sustained over abdomen and chest and the injuries were ante mortem in nature. There is no evidence adduced by any of the witnesses that the accused-appellant had assaulted the injured on any part of her body except on ear. From the judgment of the learned trial court, it appears that the conviction of the accused-appellant is based on circumstantial evidence as indicated in paragraph-22 of the impugned judgment. The circumstances, as pointed out by the learned trial court, are,

i) Last seen together theory,
ii) Recovery of the dead body of the deceased Somari from the accused person’s house; and
iii) Severe injuries detected on the body.
16) That apart, the learned trial court has also held that since the dead body was found in the house of the accused-appellant and as the accused-appellant and his deceased wife were the only occupants of the house, the accused-appellant is required to furnish an explanation as to under what circumstances the deceased had died.
17) We have already found that the evidence of none of the witnesses has implicated the accused-appellant with the commission of the alleged offence except speaking in unison that the dead body of the deceased was found lying in the house of the accused-appellant.

20) In this case, we have noticed that the circumstances of last seen together theory has not been proved by the prosecution. There is an explanation given in his statement under Section 313 Cr.PC by the accused-appellant that his wife/deceased left the house in the night with his permission. Section 106 Indian Evidence Act does not shift the burden of proof in a criminal trial, which is always upon the prosecution. From the evidence discussed above, we have already found that the prosecution has not been able to discharge its initial burden of proving the case as none of the witness has implicated the accused-appellant except the fact that the accused-appellant was in his house on the date of occurrence and the deceased usually resided with him there in that house. But, there is no evidence to establish that at the  time of occurrence, the deceased was with the accused-appellant in his house. Such fact has to be read in combination with the explanation of the appellant given in his statement under Section 313 Cr.PC. The accused-appellant had stated in his statement that he did not know as to at what time the deceased had come back home after she left the house with his permission. Apart from that, to base conviction on circumstantial evidence there has to be a consistent chain of circumstantial pointing unerringly to the guilt of the accused. But, here in this case we have not found any circumstance, except the evidence thattheaccusedappellantandthedeceasedusuallystayedtogetherintheirhouse. Forthis circumstance only, in spite of failure on the part of the prosecution to discharge its initial burden to prove the case, we are unable to persuade ourselves to hold the accused- appellant guilty of commission of murder of the deceased taking refuge of the provisions of Section 106 of the Indian Evidence Act.

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Judgment Gauhati High Court -PS. Khowang vs state Acquittal display_pdf (3)

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Case :- CRIMINAL APPEAL No. – 1263 of 2015 Appellant :- Mohd. Azam
Respondent :- State Of U.P.

Connected with
Case :- CRIMINAL APPEAL No. – 745 of 2015
Appellant :- Liaqat And Another
Respondent :- State Of U.P.

Hon’ble Bala Krishna Narayana,J. Hon’ble Irshad Ali,_

• Section 154 CRPC Indian Evidence Act, 1872 Section 45 First Information Report Murder Two appeal against same Prosecution case as spelt out in the FIR which was lodged by P. W. 1 claiming himself to be an eye witness of the occurrence was that the deceased had received one gun shot each from the appellant Whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubts or not Where the First Information Report is apparently a suspicious document and finds no corroboration from the Inquest report, then no reliance can be placed on the story of the prosecution as alleged therein Admittedly, the firearm weapons which were allegedly used by the accused appellants for committing the murder of the deceased were never recovered during investigation Report of forensic expert regarding the bullet and the pellet which were recovered from the body of the deceased, plain and bloodstained earth recovered from the place of occurrence and the clothes of the deceased Forensic evidence on record is not at all sufficient to link the appellants with the offence for which they have been convicted Absence of recovery of any fire arms from the accused coupled with the fact that the blood stains were either totally disintegrated or not capable of any classification in the report of the serologist would render the forensic evidence insufficient to link the accused with the commission of the alleged offence Prosecution has miserably failed to prove its case against the appellants beyond all reasonable doubts Neither the recorded conviction of the appellants nor the sentences awarded to them can be sustained and are liable to be set aside Ordered accordingly.

[Relevant Paras]

17. We now proceed to evaluate the evidence of P. W. 4 Asharfi Lal on the aforesaid aspect of the matter. P. W. 4 Asharfi Lal in his examination-in-chief on page 32 of the paper book has deposed that he was posted as Officer-In- Charge of Police Station Devgaon on 28.12.1995. On that day at about 10 A.M., P. W. 1 Abdul Kalam son of Mohd. Islam along with his 4 or 5 companions had come to the police station at about 10 A.M. On the information given to him by P. W. 1 Abdul Kalam that one Imamuddin @ Buggu resident of Village Katauli Khurd had been shot dead, he after issuing the necessary directions to register the case, reached the place of occurrence along with his force in a government jeep in village katauli Khurd and on reaching there he saw a dead body lying on cot. He after nominating the inquest witnesses commenced the inquest proceedings at 11 A.M. The inquest report which is on record as Ext. Ka4 also indicates that inquest proceedings had commenced pursuant to the information given at the police station by Abdul Kalam son of Mohd. Islam that Imamuddin @ Buggu had been shot dead. The inquest report Ext. Ka4 neither mentions the case crime number nor the names of the accused. P. W. 4 Asharfi Lal was re-examined and he in his re-examination on page 37 of the paper book deposed that the FIR of the incident which was on the record of the case was prepared on the basis of the written complaint given by Mohd. Ashahad son of Ayyub Ahmad on 28.12.1995 which is on record as Ext. Ka1. He further deposed before the Court that he was not aware about the fact whether there was any other person in village Katauli Khurd called Abdul Kalam son of Islam or not. He was also not aware whether the name of the father of Abdul Kalam is Ayyub or not. Chek FIR was not prepared on the basis of the written report given to him at the place of occurrence at the time when he had gone there to conduct inquest proceedings. He had received the written report of the occurrence when he had returned to the police station after completing the inquest proceedings which was signed by P. W. 2 Ashahad. The written report signed by Ashahad was received by him after 4 hours. He had scolded the Munshi for his having not prepared the chek FIR after receiving the written complaint of Abdul Kalam.

19. Thus, the credibility of the FIR in this case stands totally shattered in view of the evidence on record. Since the FIR in this case itself appears to be a devious, bogus and fictitious document, hence no reliance on the prosecution story as spelt out therein can be placed.

22. Admittedly the firearm weapons which were allegedly used by the accused-appellants for committing the murder of the deceased were never recovered during investigation. We are absolutely in the dark about the kind of weapons which were used by the culprits. The report of forensic expert vis-a-vis the bullet and the pellet which were recovered from the body of the deceased, Imamuddin @ Buggu, plain and bloodstained earth recovered from the place of occurrence and the clothes of the deceased Ext. Ka12 merely states that the blood was found on the bloodstained earth and other articles sent for forensic examination but the same were either totally disintegrated or not capable of classification. We are afraid that the forensic evidence on record is not at all sufficient to link the appellants with the offence for which they have been convicted. Moreover, neither there is any evidence nor any suggestion which may indicate as to which out of two accused, Mohd. Azam and non-appellant, Ajaz had shot at the deceased with the double barrel gun. The three ante mortem injuries noted by P. W. 3 Dr. Rajendra Prasad, Chief Pharmacist, Police Hospital, District Azamgarh on the body of the deceased, Imamuddin @ Buggu are on different parts of his dead body, although, the three witnesses of the occurrence have stated in unison that the two shots were fired by the appellants at the deceased.

23. In the instant case, the accused-appellants were neither apprehended on the spot nor any firearm was recovered from them or on their pointing out at any stage of the investigation.
24. Thus, in the present case, we find that the manner of assault as described in the FIR and later testified by the three witnesses of fact produced during the trial by the prosecution does not find corroboration from the medical evidence on record which puts a big question mark against their claim of being eye-witnesses of the occurrence. Moreover, all the three witnesses of fact, two of them namely P. W. 1 Abdul Kalam and P. W. 2 Ashahad being the real brothers of the deceased while P. W. 5 Javed Khan his cousin brother, are highly interested witnesses. It is true that the evidence of a witness cannot be discarded merely on account of his being a relative of the deceased if upon a cautious appraisal of his evidence, the Court comes to the conclusion that he has given correct and cogent description of the incident but considering the material contradictions in their testimonies inter alia on the point of time and the identity of the person who had lodged the FIR of the occurrence and the irreconcilable conflict between the ocular version and the medical evidence with regard to the number of shots fired at the deceased by the accused-appellants, it cannot be said that the three witnesses of fact have given cogent and correct description of the occurrence and that their evidence is wholly reliable and trustworthy. The previous enmity between the parties could be a very strong reason for them to falsely implicate the appellants after the dead body of the deceased was found.

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CRLA(A)_1263_2015 (1) Mohd. Azam va State Of U.P. & liyaqat va state of up

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