# Kautik Mahaley (In Jail) v. State of U.P

- **Citation:** (2021) 9 ILRA 212
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-12
- **Case number:** Criminal Appeal No. 1110 of 2016
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kautik-mahaley-in-jail-v-state-of-u-p-47561
- **Pages:** 7

## Headnote

Evidence Law - Indian Evidence Act 1872-
Section
154-
Hostile
Witness-
The
complainant
herself
and
three
other
witnesses
have
not
supported
the
prosecution case. It is natural on part of
the complainant being wife of the accused
not to support the allegations made in the
F.I.R. just to save her husband, but from
the statements of the aforesaid witnesses,
date, time and place of the incident is
proved and there is no confusion or
discrepancy regarding this.

It is settled law that relevant parts of the
testimony of hostile witnesses, which are
admissible in law, can be used by the
prosecution to prove its case.

Evidence Law - Indian Evidence Act 1872-
Illustration (a) of Section 6 -The trial
court has rightly relied on the evidence of
PW-4 who is an independent witness and
not related to either the deceased or the
accused-appellant. As per the testimony,
complainant soon after the incident has
made a statement that her husband has
killed her mother, a statement which can
be relied in terms of Section 6 of the
Evidence Act, since, the statement being
res-gestae which is exception to the rule
of heresay evidence.

The statement of a witness made soon after
the commission of the offence would be
9 All. Kautik Mahaley Vs. State of U.P.
213
relevant and will be considered to be a part of
the same transaction and the testimony of the
person to whom the said statement was made,
would be an exception to the rule of hearsay
evidence. ( Para 10, 11)

Criminal Appeal Rejected. (E-3)

Judgements/ Case law relied upon:-

## Text

212 INDIAN LAW REPORTS ALLAHABAD SERIES
undergone
by
accused-appellant
is
sufficient to meet the ends of justice. In
regard to the fine imposed upon the
appellant by learned trial court, this Court
finds that the same is adequate and it is not
required to be disturbed and the appellant is
directed to deposit the same.

19. Accordingly, the conviction is
upheld. The appeal is partly allowed with
the modification of the sentence by the
period already undergone and served out by
the appellant. The appellant be released
from the jail on depositing the fine imposed
by the trial court, if he is not wanted in any
other case.

20. Office is directed to transmit the
lower court record along with a copy of this
judgment to the learned court below for
information and necessary compliance as
warranted.

21. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad, self attested by the learned
counsel for the applicant alongwith a self
attested identity proof of the said persons
(preferably AADHAR Card) mentioning
the mobile number (s) to which the said
AADHAR Card is linked before the
concerned Court/Authority/Official.

22. The concerned Court/Authority/
Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing.
----------
(2021)09ILR A212
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.08.2021
BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 1110 of 2016

Kautik Mahaley ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Noor Muhammad, Sri Yogesh Kumar
Srivastava

Counsel for the Opposite Party:
A.G.A.

Evidence Law - Indian Evidence Act 1872-
Section
154-
Hostile
Witness-
The
complainant
herself
and
three
other
witnesses
have
not
supported
the
prosecution case. It is natural on part of
the complainant being wife of the accused
not to support the allegations made in the
F.I.R. just to save her husband, but from
the statements of the aforesaid witnesses,
date, time and place of the incident is
proved and there is no confusion or
discrepancy regarding this.

It is settled law that relevant parts of the
testimony of hostile witnesses, which are
admissible in law, can be used by the
prosecution to prove its case.

Evidence Law - Indian Evidence Act 1872-
Illustration (a) of Section 6 -The trial
court has rightly relied on the evidence of
PW-4 who is an independent witness and
not related to either the deceased or the
accused-appellant. As per the testimony,
complainant soon after the incident has
made a statement that her husband has
killed her mother, a statement which can
be relied in terms of Section 6 of the
Evidence Act, since, the statement being
res-gestae which is exception to the rule
of heresay evidence.

The statement of a witness made soon after
the commission of the offence would be
9 All. Kautik Mahaley Vs. State of U.P.
213
relevant and will be considered to be a part of
the same transaction and the testimony of the
person to whom the said statement was made,
would be an exception to the rule of hearsay
evidence. ( Para 10, 11)

Criminal Appeal Rejected. (E-3)

Judgements/ Case law relied upon:-

1. Gentela Vijayauardhan Rao Vs. St. of A.P.
1996 (6) SCC 241

2. Parsadi Ram Vs. St. of M.P. (Chhattisgarh)
(1) F.J.C.C. 145

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard learned counsel for the
appellant and learned A.G.A.

2. This criminal appeal arises out of
judgment and order dated 05.01.2016
passed
by
the
Additional
Session
Judge/Special Judge (D.A.A. Act), Jhansi
in S.T. No.84 of 2014 arising out of Case
Crime No. 123 of 2013, Police Station-
Sadar Bazar, District- Jhansi, convicting
the appellant (accused) under Section 304
(1) IPC and sentencing him to undergo
rigorous imprisonment for 10 years and a
fine of Rs. 15,000/- and in default of
payment of fine, six months rigorous
imprisonment.

3. In brief the prosecution case is that
complainant Smt. Deepika presented an
application dated 13.12.2013 at Police
Station- Sadar Bazar, Jhansi alleging
therein that her husband is Sepoy in the
Army and posted at Jhansi. In the evening
of 7/8-12-2013 at 7 p.m. her husband in
drunken condition came to the house. After
taking dinner complainant with her three
children, mother-in-law Narmada Bai and
mother Lalita went to sleep at 10 p.m.. At
about 3 a.m. she woke up on hearing some
shrieks then she saw her husband standing
beside the cot of her mother holding a Gaiti
in his hand. Her mother was lying on the
cot bleeding from her head. She came
outside and told her neighbour Abhijeet Pal
about
the
incident.
Thereafter,
other
military personnel came there and took her
mother to medical college, Jhansi where
she died. Post-mortem was conducted on
08-12-2013. Her mother had come to
Jhansi on 26-11-2013 on the occasion of
birthday of her son Soham and after 4-5
days her husband in drunken condition
quarreled with her mother. On 27th May
2013 her husband Kautik Mahaley has
badly beaten her and she was admitted in
military hospital for 8 days. On her
complaint of this assault he was punished
by
the
Army
for
one
month
of
quarterguard. Due to above reasons her
husband in a drunken condition assaulted
her mother Smt. Lalita and injured her
causing
her
death.
On
receiving
information, her maternal uncle Rajesh
Aabhad came to Jhansi in the night of 0812-2013 and on 09-12-2013 she went to
Nasik with the dead body of her mother for
performing her last rites. On returning from
Nasik, now she is giving information. On
the aforesaid application Case Crime
No.123 of 2013, under Section 304 I.P.C.
was registered at Police Station- Sadar
Bazar. Inspector Baljeet Singh started the
investigation. He visited the place of
occurrence
and
at
the
instance
of
complainant recovered blood stained Gaiti
the weapon used in the offence from the
inner courtyard of her house, sealed it and
prepared the memo. He also took the blood
stains "Nivad" of the cot and prepared a
memo, prepared the site plan, recorded the
statement of the complainant and other
witnesses. Case was further investigated by
Inspector Mahendra Pratap Singh who
214 INDIAN LAW REPORTS ALLAHABAD SERIES
completed the investigation and submitted
charge sheet against the accused Kautik
Mahaley under Section 304 I.P.C.

4. The trial court framed charge
against accused under Section 304 I.P.C.
who denied it and claimed for trial. The
prosecution examined nine witnesses. The
statement of accused under Section 313
Cr.P.C. was recorded in which the accused
denied the prosecution case and said that he
has been falsely implicated and he has not
killed Smt. Lalita. No evidence in defence
produced by the accused. The trial court
after hearing the arguments of the parties
by the impugned judgment has convicted
the accused-appellant.

5. Learned counsel for the appellant
submitted that the F.I.R. has been lodged
after five days of the incident so there is
much delay and prosecution has failed to
give any explanation of the delay. Four
witnesses of fact PW-1 Smt. Deepika, PW2 Rajesh Aabhad, PW-3 Abhijeet Pal and
PW-9 Preetam Singh have not supported
the prosecution version and have become
hostile. Learned trial court only on the
basis of statement of PW-4 Major Abhay
Juyal has held the appellant guilty. The
aforesaid witness has only stated that when
on the information he reached on the spot,
the wife of the accused Smt. Deepika said
to him that his husband Kautik Mahaley
has killed her mother, don't spare him.
Learned counsel for the appellant submitted
that this witness is not an eye witness and
he has not seen the incident. His evidence
is based on the statement of complainant
PW-1 Smt. Deepika who herself has not
supported the prosecution version and has
become hostile. So the statement of PW-4
Major Abhay Juyal has no value and cannot
be relied. There is no other evidence on the
record against the accused. It is further
submitted that the learned trial court has
also invoked Section 106 of the Evidence
Act observing that the offence has been
committed inside the house and it is on part
of the accused to explain the circumstances
under which the deceased has suffered
injuries. The learned trial court has failed to
appreciate that the accused was not alone
and other persons were also present at the
time of incident. Section 106 of the
Evidence Act cannot be applied in the
present case and learned trial court has
erred in doing so. The findings recorded by
the learned trial court is per se illegal and
perverse. The prosecution has completely
failed to establish its case against the
appellant and the findings arrived by the
learned trial court is based on surmises and
conjectures
and
such
the
impugned
judgment and order of conviction is not
sustainable.

6. Learned A.G.A. submitted that
although complainant and three other
witnesses namely, PW-2 Rajesh Aabhad,
PW-3 Abhijeet Pal and PW-9 Preetam
Singh have not supported the prosecution
version, PW-4 Major Abhay Juyal has fully
supported the prosecution case. His oral
statement that when he reached on the spot,
complainant said to him that her husband
Kautik Mahaley has killed her mother,
don't spare him, is admissible in evidence.
The incident is of inside the house and
F.I.R. has been lodged by the wife of the
accused implicating the accused-appellant
in clear terms but later on just to save her
husband she has retracted from her earlier
statement. But from the evidence on record
it is proved beyond reasonable doubt that
accused is the author of the crime. Learned
trial court has fully discussed the entire
evidence and after appreciation of evidence
has rightly held the accused guilty. The
findings recorded by the trial court does not
9 All. Kautik Mahaley Vs. State of U.P.
215
suffer from any infirmity and appeal has no
force.

7. Post-mortem of the deceased has
been conducted on 08.12.2013 at 03:30
p.m. by Dr. Rajeev Singh Bhadauriya who
has been examined as PW-5 and has proved
the post-mortem report Ex-Ka.3. According
to which the height of the deceased was
151 cm. Rigor mortis was present all over
the body. Following Anti-mortem injuries
were found on the body:

(1) Lacerated wound, 3 cm. x 2
cm. bone deep was present on the left side
of the head. 10 cm. above the left ear.

(2) Lacerated wound, 7 cm. x 2
cm. bone deep on the left side of head, 5
cm. above the left ear.

In internal examination, parietal
bone
was
fractured.
Brain
and
its
membrane were lacerated. Clotted blood
was present. Near about 100 gm. pasty food
was present in the stomach. Faceal matters
and gases were present in the intestine.

In the opinion of the doctor, the
cause of death was anti-mortem head
injuries and duration of death was about
half day.

From the medical evidence on
record it is clear that deceased has suffered
lacerated wounds on her head which caused
her death and her death is homicidal.
Learned counsel for the appellant contented
that prosecution case is that injuries have
been inflicted by a Gaiti while the deceased
has lacerated wounds on her body which is
not possible from Gaiti which is pointed
weapon and will cause stab/penetrated
wounds. So there is contradiction between
the medical and oral evidence. This
argument has no force as the nature of the
injuries depends upon the manner in which
weapon has been used. If it is used from
blunt side it may cause lacerated wounds.
So there is no contradiction or discrepancy.

8. As per version of the F.I.R., the
incident has occurred in the intervening
night of 7/8-12-2013 at about 03 a.m.
inside the house of the complainant. To
prove its case, prosecution has examined
nine witnesses. PW-1 Smt. Deepika, PW-2
Rajesh Aabhad, PW-3 Abhijeet Pal and
PW-9 Preetam Singh are public witnesses
of fact. PW-1 Smt. Deepika in her
examination-in-chief has stated that the
incident is of night of 7/8-12-2013. She
along with her three children, mother-inlaw Narmada Bai and Mother Smt. Lalita
was sleeping in her house. In the night of
7/8-12-2013 at about 03 a.m. she woke up
on shrieks and reached near here mother's
cot. She saw that her mother was bleeding.
At the same time, a person holding a Gaiti
ran away from there. Due to darkness she
could not identify the person. Her husband
came on the spot. She and Army personnel
took her mother to medical college where
she died. She has further stated that she has
not seen her husband holding Gaiti near her
mother. Regarding the F.I.R., the witness
has stated that some army personnel got her
signature on typed paper which was not
read over to her. She has not told anyone
that her husband has killed her mother. The
witness has identified her signature on the
Teharir (Ex.Ka-1). So, this witness has not
supported the prosecution case and has
become hostile. She has also disowned the
contents of the F.I.R. but has admitted her
signature on it.

PW-2 Rajesh Aabhad the brother
of the deceased, in his examination-in-chief
has stated that on receiving information
from Smt. Deepika that someone has killed
her mother in the night, he reached Jhansi
in the morning of 08.12.2013. He has
216 INDIAN LAW REPORTS ALLAHABAD SERIES
further stated that after performing last rites
of her sister at Nasik, he returned back
Jhansi
on
13.08.2013.
Some
army
personnel got the signature of Smt. Deepika
on an application and took Deepika and the
witness to the police station where
application was submitted. He has not read
the application. He has admitted his
signature on the memo of taking blood
stains, Nivad by the Investigating Officer.
The witness has been declared hostile on
prayer of prosecution.

PW-3
Abhijeet
Pal
in
his
examination-in-chief has stated that he was
posted as Lance Naik and in the night of
7/8-12-2013 at about 03 a.m. on hearing
noise from his neighbour Kautik Mahaley's
house, he went there. Kautik Mahaley and
his wife were standing outside the house.
Smt. Deepika told her that someone has
injured her mother. She was lying on a cot.
He informed the higher authorities and
after arranging vehicle she was taken to
hospital where doctor declared her dead.
This witness has also been declared hostile
on prayer of prosecution.

PW-4 Major Abhay Juyal in his
examination-in-chief has stated that on 7/812-2013, he was posted as major in Army
at Jhansi and in the night at about 03:30
a.m. he got information from Amit Pal that
some incident has occurred at the house of
Sepoy Kautik Mahaley and his wife is
crying outside the house. When he reached
at the Government residence of Kautik
Mahaley and went inside, he saw that the
mother-in-law of Kautik Mahaley was
lying injured on cot and she was bleeding
from head and mouth. He took her to
medical college Jhansi on his Gypsy where
doctor declared her dead. The witness has
further stated that when he reached at the
place of occurrence, wife of Kautik
Mahaley Smt. Deepika who was not in her
senses met and said to him that, "her
husband Kuatik Mahaley has killed her
mother, don't spare him." The witness has
further proved his signature on the
Panchayatnama Ex.Ka-2.

PW-9 Hawaldar Preetam Singh in
his examination-in-chief has said that on
7/8-12-2013 he was posed as Platoon
Hawaldar at Jhansi and in the night
between 03-03:45 a.m. Sepoy Kautik
Mahaley of the unit has not came there and
he has not admitted Kautik Mahaley in the
hospital. So this witness has also been not
supported the prosecution.

9. Another peace of evidence which has
been produced by the prosecution is the
recovery of Gaiti used in the crime. PW-6
Sub-Inspector Baljeet Singh who is the
Investigating Officer has said in his statement
that at the instance of complainant the weapon
(Gaiti) used in the offence was recovered from
the place of occurrence and the recovery
memo was prepared at the spot. The witness
has proved it as Ex. Ka5. The weapon
recovered has been sent to the Forensic Lab
along with other articles for examination and
according to the Forensic Lab report the blood
stains on it were found disintegrated. So it is
not established that the recovered Gaiti has
been used in the offence. The remaining
statement of PW-6 Sub-Inspector Baljeet
Singh
is
of
formal
in
nature
being
Investigating Officer he has stated the steps
taken during investigation and has proved the
papers prepared by him. PW-8 Sub-Inspector
Mahendra
Pratap
Singh
is
also
the
Investigating Officer who has submitted the
charge sheet and has proved it while PW-7
Shiv Narain is Chik and G.D. writer who has
registered the case on the basis of application
of the complainant and entered its proscription
in the G.D. and has proved the papers.

10. Out of 5 public witness of facts
produced by the prosecution, four witnesses,
9 All. Kautik Mahaley Vs. State of U.P.
217
PW-1 Smt. Deepika, PW-2 Rajesh Aabhad,
PW-3 Abhijeet Pal and PW-9 Preetam Singh
have not supported the prosecution case. It is
worth of mentioning that complainant is the
wife of the accused and the incident is of
inside her house. The witnesses have
reached on the spot on her hue and cry but
under the influence of the accused, the
complainant
herself
and
three
other
witnesses namely PW-2 Rajesh Aabhad,
PW-3 Abhijeet Pal and PW-9 Hawaldar
Preetam Singh have not supported the
prosecution case. It is natural on part of the
complainant being wife of the accused not to
support the allegations made in the F.I.R.
just to save her husband, but from the
statements of the aforesaid witnesses, date,
time and place of the incident is proved and
there is no confusion or discrepancy
regarding this. So it is proved from the oral
testimony of aforesaid witnesses that in the
intervening night of 7/8-12-2013 at about 03
a.m. inside the house of the complainant her
mother Smt. Lalita suffered injuries while
lying on the cot and she succumbed to the
injuries. At that time, the complainant, her
three children, mother and mother-in-law
were inside the house and accused was also
present there. From the statement of PW-4
Major Abhay Juyal, it is also proved that on
receiving information, when he reached on
the
spot
just
after
the
occurrence,
complainant Smt. Deepika and her husband
accused Kautik Mahaley were standing there
and the complainant Deepika said to him
that "her husband Kautik Mahaley (accused)
has killed her mother, don't spare him."

11. The aforesaid statement of PW-4
Major Abhay Juyal clearly comes in the
preview of the illustrations (a) of Section 6
of the Evidence Act, which is as fallows:-

"6. Relevancy of facts forming
part of same transaction.--Facts which,
though not in issue, are so connected with a
fact in issue as to form part of the same
transaction, are relevant, whether they
occurred at the same time and place or at
different times and places.
Illustrations

(a) A is accused of the murder of
B by beating him. Whatever was said or
done by A or B or the by-standers at the
beating, or so shortly before or after it as
to form part of the transaction, is a relevant
fact."

The trial court has rightly relied
on the evidence of PW-4 Major Abhay
Juyal who is an independent witness and
not related to either the deceased or the
accused-appellant. As per the testimony,
complainant Smt. Deepika soon after the
incident has made a statement that her
husband has killed her mother, a statement
which can be relied in terms of Section 6 of
the Evidence Act, since, the statement
being res-gestae which is exception to the
rule of heresay evidence.

12. The Apex Court in the case of
Gentela Vijayauardhan Rao Vs. State of
A.P. reported in 1996 (6) SCC 241, has
held as under:

"The principle of law embodied in
section 6 of the Evidence Act is usually
known as the rule of res gestae recognized
in English law. The essence of the doctrine
is that a fact which, though not in issue, is
so connected with the fact in issue as to
form part of the same transaction that it
becomes relevant by itself. This rule is
roughly speaking, an exception to the
general rule that hearsay evidence is not
admissible. The rationale in making certain
statement or fact admissible under section
6 of the Evidence Act is on account of the
spontaneity
and
immediacy
of
such
218 INDIAN LAW REPORTS ALLAHABAD SERIES
statement or fact in relation to the fact in
issue. But it is necessary that such fact or
statement must be a part of the same
transaction. In other words, such statement
must have been made contemporaneous
with the acts which constitute the offence or
at least immediately thereafter. But if there
was an interval, however, slight it may be,
which was sufficient enough for fabrication
then the statement is not part of res
gestae."

13. Similar view was taken in the case
of Parsadi Ram Vs. State of M.P.
(Chhattisgarh) reported in 2007 (1)
F.J.C.C. 145, further adding that in order
to hold the statement res-gestae, it has to be
remembered that the statement should be
reasonable, contemporaneous and also
spontaneous.

14. On examination of the evidence of
PW-4 and applying the law laid down, the
Court finds PW-4, is an independent
witness,
whose
evidence
is
reliable;
moreso, there has been no motive which
has been attributed to him nor there is any
suggestion that there was any enmity
between this witness and the appellant, to
falsely
implicate
the
appellant.
The
arguments advanced by the learned counsel
for the appellant is this regard have no
force.

15. The delay in lodging F.I.R. has
been explained in the F.I.R. itself and the
explanation is satisfactory. Complainant
being resident of Maharastra after death of
her mother took her body to her native
place for performing last rites and when she
returned from there she has lodged the
F.I.R. So, the delay in lodging the F.I.R.
does not adversely affect the prosecution.

16. The learned trial court has
observed that incident is inside the house of
accused, so Section 106 of the Evidence
Act, the accused has to explain the
circumstances under which Smt. Lalita
suffered injuries but the accused has failed
to explain the circumstances and so adverse
inference under Section 106 of Evidence
Act can be drawn against him. Even if
these observations of the learned trial court
is not taken into consideration, even then
from the oral testimony of PW-4 Major
Abhay Juyal and other evidence on record,
the case of the prosecution stands proved
and it can safely be inferred that it is
accused and only accused who is the author
of the crime.

17. The learned trial court has
properly appreciated the entire evidence
and there is no perversity or infirmity in the
finding recorded by the learned trial court.
The learned trial court has rightly held the
accused guilty and convicted him. The
sentence passed by the trial court is also
appropriate. There is no force in this appeal
which is liable to be dismissed.

18. The criminal appeal is hereby
dismissed.

19. Lower court record along with
copy of the judgment be transmitted
immediately to the trial Court.
----------
(2021)09ILR A218
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.09.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 1351 of 2018