Surendra vs State Of U.P. And Anr.

This criminal appeal has been preferred by the accused appellant -Surendra against the judgment and order dated 17.7.2019 passed by the Special Judge (SC/ST Act), Mathura in Session Trial No. 747 of 2017 (State vs. Surendra), arising out of Case Crime No. 158 of 2017, Police Station Barsana, District Mathura, convicting the appellant for the offence punishable under Sections 302 and 201 of IPC and sentencing him to undergo rigorous imprisonment of life and a fine of Rs. 20,000/- for the offence under Section 302 IPC and to undergo one year rigorous imprisonment and fine of Rs. 5,000/- for the offence under Section 201 IPC with default clause.

The First information report was lodged by PW-1 Smt. Phoolwati at Police Station Barsana, District Mathura. Briefly, the informant alleged therein that she had been living at her parental home in Village Khadwai, Police Station Sikandra, District Agra, for about three months along with her five-year-old daughter Lakshmi, while one daughter and two sons were living with their grandparents at Radha Nagari. On 11.4.2017, the informant's husband Surendra came to Village Khadwai with two boys, Bharat and Gajendra and from there, he took Kumari Lakshmi. On the way, near Village Aajnaukh on the Barsana-Chhata Road, he murdered the girl and threw her body into a well, which was recovered by Police Station, Barsana on 12.4.2017. Surendra did not reach Radha Nagari and instead went to Chhattisgarh taking both the boys with him. When he returned Khadwai. the informant asked him where the girl was, he said he had killed her. Thereafter, he called his sister Saroj to Mathura on 07.5.2017 and asked money for expenses. When Saroj inquired about the children, he angrily stated that he had killed the girl Lakshmi about a month ago and thrown her into a well on the Barsana-Chhata Road. Upon making inquiries, the complainant reached Police Station Barsana, where police informed her that on 12.4.2017, a body of about 6–7-year-old girl was recovered from a well. Upon being shown the photograph, the complainant identified her as Lakshmi through the photo and clothing and family members also recognized the girl's picture. The husband earns nothing, frequently quarrels, and for this reason, he murdered the girl. He also disclosed that he murdered the boy Bharat at Keetham Lake, Sikandra, Agra.

Based on the written report, a case was registered against the accused Surendra at the police station, and the investigation commenced. During investigation, statements of witnesses under Section 161 Cr.P.C. were recorded, the site plan of the crime scene was prepared and upon completion of the investigation, a chargesheet under Sections 302 and 201 IPC against accused Surendra Singh was submitted before the concerned Magistrate and he took the cognizance. The case being exclusively triable by session court, was committed to the Court of sessions.

Accused-appellant appeared and charges under Sections 302, 201 of IPC were framed. Accused had denied the charges framed against him and pleading not guilty claimed his trial.

Trial proceeded and in order to prove its case on behalf of prosecution, five witnesses, namely, PW-1 – Smt. Phoolwati (informant), PW-2 Gajendra, PW-3 Bhajan Singh, PW-4 Smt. Savitri and PW-5 Smt. Premwati were examined.

In documentary evidence, written report Ex.ka.-1 has been proved.

After closure of prosecution evidence, the incriminating evidence and circumstances were put to the accused in his statement under Section 313 Cr.P.C. wherein he claimed the entire prosecution case as false and fabricated.

The learned trial court upon scrutiny of the evidence on record concluded that the case of prosecution was proved beyond reasonable doubt against the accused appellant and recorded conviction and sentenced him, as mentioned here-in-above. Hence, this appeal.

We have heard Shri Abhishek Mayank, learned counsel for the appellant and Shri Muniraj Mehrotra, learned AGA for the State at length, and perused the entire record carefully.

Learned counsel for the appellant submitted that the FIR was lodged after a delay of more than one month and the prosecution failed to satisfactorily explain the same. It was contended that PW-1-informant did not support the prosecution version during cross-examination and that PW-2, PW-3, PW-4 and PW-5 were declared hostile and did not corroborate the prosecution story at all. Learned counsel submitted that reliance upon hostile witnesses without independent corroboration is contrary to settled principles of law. While it is true that testimony of a hostile witness cannot be discarded entirely, its credibility must be tested in light of surrounding circumstances. Reliance was placed upon Ram Swaroop vs. State of Rajasthan, AIR 2004 SC 2243, wherein the Supreme Court held that accepting the testimony of a hostile witness without satisfactory corroboration is impermissible. It was argued that reliance upon the examination-in-chief of PW-1 alone, without corroboration, is perverse and illegal, rendering the impugned judgment unsustainable. It has further been submitted that in absence of any substantive evidence against the accused, the extra judicial confession allegedly made by him before his wife loses its significance and there cannot be any conviction based on such extra judicial confession. Lastly, it has been submitted that the appellant has served-out about nine years of sentence.

Per contra, learned AGA submitted that it is well settled that the testimony of a hostile witness is not to be discarded in its entirety and that the prosecution is entitled to rely upon those portions of testimony which support its case. It was contended that the statement of PW-1 sufficiently establishes the occurrence dated 11.4.2017. It has also been submitted that the accused has confessed his guilt before his wife and it could be accepted as a valid piece of evidence. The trial court has evaluated the evidence on record in right perspective. Therefore, the findings recorded by the learned trial court do not suffer from any infirmity and illegality and the conviction does not warrant interference.

We have considered the rival submissions advanced by learned counsel for the parties and perused the entire record including the impugned judgment carefully.

In this matter, it is evident that all prosecution witnesses turned hostile during trial. P.W.-1 - informant though supported the prosecution during examination-in-chief, but did not support the prosecution version in her cross-examination. Relying solely upon her examination-in-chief, learned Trial Court concluded that prosecution story stands proved. It is true that there is no legal prohibition against convicting an accused on the basis of testimony of a hostile witness, but it cannot be accepted blindly. In Neeraj Dutta vs. State (Govt. of N.C.T. of Delhi), AIR Online 2022 SC 1160, the Hon'ble Supreme Court held that merely because a witness is declared hostile, his entire testimony does not become useless. If the part of his evidence is supported by other facts or reliable evidence on record, it can still be considered by the Court. Therefore, there is no legal prohibition against convicting an accused on the basis of testimony of a hostile witness, provided it is corroborated by other trustworthy evidence. Similarly in Ram Swaroop case (supra), the Hon'ble Supreme Court held that conviction cannot be based upon the testimony of a hostile witness in the absence of reliable corroboration. Hence, approach of Trial Court in placing reliance upon uncorroborated testimony of P.W.-1 is untenable.

Similarly, learned trial court committed a manifest error in placing reliance upon the extra judicial confession allegedly made by the accused appellant before his wife.

The Hon'ble Supreme Court in the case of Sansar Chand v. State of Rajasthan (2010) 10 SCC 604 held that there is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra judicial confession should be corroborated by some other material.

Dealing with the issue of extra-judicial confession, the Supreme Court held in Narayan Singh and Ors Versus State of M.P AIR 1985 SC 1678 that it would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession.

In Balwinder Singh v. State of Punjab 1995 Supp (4) SCC 259 Supreme Court stated the principle that an extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.

Further, in Pakkirisamy v. State of T.N. (1997) 8 SCC 158 the Apex Court held that it is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession.

In the case of Kavita v. State of T.N. [(1998) 6 SCC 108, the Hon'ble Supreme Court stated the dictum that there is no doubt that convictions can be based on extra-judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witnesses to whom it is made.

The Hon'ble Supreme Court in Sahadevan v. State of T.N., (2012) 6 SCC 403 laid down the principles governing extra judicial confessions and held that these precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:

From the aforesaid propositions of law, it is explicitly clear that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence, as it is easy to allege and difficult to verify. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession.

In the case in hand while the informant has mentioned in the FIR and stated in her examination-in-chief before the Court that when the accused returned, the informant asked him where the girl was and he said that he had killed her and threw her body into a well but in her cross-examination she has stated that she was uneducated, her thumb impression was taken on a blank paper by the police and the complaint was written by the police at the police station and she did not know what the police had written in the said complaint. She further stated that on 11.4.2017 she was at her in-laws' house. Someone took her daughter Lakshmi from home without her knowledge. While she had gone to work in the fields, the girl disappeared behind her back. She also stated that on 11.4.2017, her husband Surendra was on a job at Chhattisgarh and he returned after one month. He did not take the girl away from her nor did he kill her daughter Lakshmi. The police did not show her the photo and clothes of her daughter, Laksmi. It has also been stated by her that she had not found the body of Lakshmi till date. She specifically stated that Surendra did not tell her that he killed her daughter and threw her body in the well. From a perusal of the entire evidence available on record, it is evident that the averments made in the FIR and the statement given by PW-1-informant in her examination-in-chief that the accused appellant had told her that he had killed her daughter and threw her body into a well do not inspire confidence and the same is not corroborated by other prosecution evidence and has also not been proved like any other fact. Thus, the approach adopted by the learned trial court in convicting the appellant solely on the basis of partial testimony of a hostile witness and extra judicial confession of the accused made before his wife, without lawful corroboration is clearly erroneous. From the facts of the present case and the law laid down by various Courts, it is apparent that in the present case there is hardly any legally admissible evidence against the appellant. The findings recorded by the learned trial court are, therefore, perverse, contrary to law, and unsustainable in the eyes of law, and the impugned judgment and warrant warrants interference by this Court. We have no hesitation in holding that the prosecution has failed to prove the charges beyond reasonable doubt for which the accused-appellant was tried and therefore, the appellant is entitled to the benefit of doubt.

Accordingly, the criminal appeal is allowed. The impugned judgment and order dated 17.7.2019 passed by the Special Judge (SC/ST Act), Mathura in Session Trial No. 747 of 2017 (State vs. Surendra), arising out of Case Crime No. 158 of 2017, Police Station Barsana, District Mathura under Sections 302, 201 IPC is hereby set aside. The appellant is acquitted of all the charges framed against him. He be set at liberty. He is in jail. He shall be released forthwith, if not wanted in any other case.

Office is directed to return the trial court record to the Court concerned and communicate this order forthwith for compliance.