Allahabad High Court: In a batch of appeals filed against the judgment of conviction and the order of sentence passed by Special Judge (Prevention of Corruption Act), Meerut, in Sessions Trial for offences under Sections 147, 302 read with Section 149 of Penal Code, 1860 (‘IPC’), the division bench of Siddharth and Praveen Kumar Giri*, JJ. highlighted that once the examination-in-chief and cross-examination of witnesses have been completed and their evidence is on record, the subsequent amendment or addition of charges should not result in a de novo trial. Instead, witnesses should only be permitted to depose with respect to the newly added or altered charges, preventing any opportunity to retract or contradict their earlier testimony.
The Court said that while a man may lie, circumstances do not. Even the witnesses who later turned hostile admitted that both deceased individuals were murdered. Although they attempted to attribute the act to unknown persons, they failed to provide any motive for such individuals, whereas the convicts had a clear motive, being aggrieved by the relationship between their daughter/sister which they perceived as dishonourable.
In light of the above findings, the Court concurred with the conclusions of the Additional Sessions Judge and upheld the conviction of the convicts under Sections 147 and 302 read with Section 149 of the IPC.
Background
The prosecution’s case is that the informant, brother of the deceased, lodged a written report at Police Station, stating that the convict whose house is situated opposite to that of the informant, along with his family members, had objected to deceased’s alleged illicit relationship with convict’s daughter. Despite a proposal for their marriage by the informant, the accused rejected it and bore a grudge. On the night of 05-02-2006 at around 11:00 P.M., the convict, along with his six sons and two unidentified individuals, allegedly abducted the deceased from his home while assaulting his daughter and subsequently murdered them. The FIR was lodged under Sections 147, 148, 149, and 302 IPC.
The inquest report indicated that the deceased died due to inflicted injuries, while the convict’s daughter died due to assault and throttling.
The post-mortem examination of deceased aged approximately 22 years, indicated multiple external injuries and internal damage, including fractures of ribs 2 to 11 on the right side and laceration of the right lung. Based on the investigation, the Investigating Officer submitted a charge sheet against all seven accused under Sections 147, 148, 149, and 302 IPC. The Judicial Magistrate took cognizance of the offence and committed the case to the Sessions Court.
On 21-05-2010, the Trial Court framed additional charges under Sections 504 and 506 IPC against the convicts and permitted a de novo trial. Following this, when the informant was recalled, he materially altered his earlier version stating that the murders were committed by unidentified miscreants.
Thereafter, the Trial Court vide impugned judgment convicted the convicts and sentenced them to life imprisonment under Section 302 read with Section 149 of IPC with fine of Rs.10,000/-, in case of default in payment of fine, further, to undergo one year imprisonment and for two years’ imprisonment under Section 147 of IPC.
Analysis and Decision
The Court observed that the burden of explaining the circumstances following the forcible taking of the deceased by the convicts to their house, particularly when the dead bodies of the deceased and the convict’s daughter were subsequently recovered from within that very premises, shifted upon the convicts, as the facts were exclusively within their knowledge. The convicts failed to discharge this burden as required under Section 106 of the Evidence Act, 1872. Accordingly, the Court concurred with the submissions made by the State.
The Court noted that, as per the post-mortem report of convict’s daughter, external injuries included fracture of both hyoid bones and balloon-like swelling of both lungs. Initially, the cause of death was recorded as “asphyxia as a result of strangulation,” but was later altered to “asphyxia as a result of ante-mortem hanging.” However, the Court found this correction questionable, observing that the fracture of both hyoid bones is typically indicative of strangulation rather than hanging. This opinion was further supported by the depositions of the informant and the Investigating officer who stated that both the deceased were murdered.
The Court further noted that the post-mortem report of the deceased revealed eight injuries, including fractures of ribs 2 to 11 and a lacerated right lung, with the cause of death identified as hemorrhage and shock. The inquest reports of both deceased were prepared shortly after the incident and confirmed that the deceased’s body was found inside a room of the accused convict’s house, while convict’s daughter’s body was found in the verandah of the same house. These findings were corroborated by the testimonies of informant and the Investigating officer during both examination-in-chief and cross-examination, thereby strengthening the prosecution’s case.
The Court found the informant’s later version unreliable, given that he had earlier assigned motive to the convicts on grounds of honour killing. The Court observed that the informant did not deny the presence of the convict at the scene of the incident and concluded that the Trial Court ought not to have permitted a de novo trial in the present case.
The Court said that the deposition of the informant, recorded during his examination-in-chief and cross-examination prior to the amendment of charges, could not be discarded merely because of his subsequent statements made during the later examination-in-chief conducted after the inclusion of Sections 504 and 506 IPC.
The Court noted that the examination-in-chief of witness 2 was recorded on 04-03-2009, wherein he gave a clear eye-witness account consistent with the contents of the FIR, stating that both the deceased were killed by the convicts. His cross-examination on the same day reaffirmed his testimony, thereby supporting the prosecution’s case. However, following the amendment of charges, four years later, witness 2 attempted to retract his earlier statements during his fresh examination-in-chief, despite only being required to depose on the newly added Sections 504 and 506 IPC. Nevertheless, he did not deny the occurrence of the murders nor the topography report. Given the acquittal of the convict under Sections 504 and 506 IPC, his retracted testimony regarding the main offence under Sections 147, 302 read with 149 IPC could not be relied upon.
The Court further observed that the doctor conducted the post-mortem examinations and confirmed multiple severe injuries on the deceased. These injuries were consistent with the time of death. Notably, no questions were raised by the defence regarding whether the cause of death was strangulation or hanging.
In light of the above findings, the Court concurred with the conclusions of the Additional Sessions Judge and upheld the conviction of the convicts under Sections 147 and 302 read with Section 149 of the IPC. Accordingly, all appeals were found to be without merit and were dismissed. The impugned judgment of conviction and sentence was affirmed. The convicts who were on bail were directed to be taken into custody forthwith to serve their sentence.
[Ibrahim v. State of U.P., Criminal Appeal No. 442 of 2013, decided on 07-04-2025]
*Judgment Authored by: Justice Praveen Kumar Giri
Advocates who appeared in this case :
Counsel for Appellant:- Amit Daga, Yogesh Srivastava, Ajay Kumar Mishra, Arun Srivastava, Kandarp Srivastava, Avnish Kumar Srivastava, Sunil Kumar Yadav, V.P. Srivastava
Counsel for Respondent:- Govt. Advocate
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