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2003 DIGILAW 1886 (ALL)

Faujdar v. State of U. P.

2003-08-23

M.C.JAIN, M.CHAUDHARY

body2003
M. CHAUDHARY, J. ( 1 ) THIS is an appeal from judgment and order dated 9th of June, 1981 passed by V Additional Sessions Judge, Etah in Sessions Trial No. 35 of 1981 State v. Faujdar Singh and another convicting the accused appellants under Section 302 IPC and sentencing each of them for imprisonment for life thereunder. ( 2 ) BRIEF facts giving rise to this appeal are that at about 9:15 a. m. on 8th of December, 1979 Chandra Pal lodged an FIR at police station Sidhpura District Etah alleging that during the night between 7th and 8th of December, 1979 he was staying at the house of his brother Siya Ram at Ram Nagar within the limits of police station Sidhpura District Etah as he had gone there to impress upon his brother Siya Ram that he should not transfer his landed property in favour of Shanti Devi wife of Faujdar Singh. Since Siya Ram had developed illicit intimacy with Shanti Devi he had purchased land measuring nine bighas in consideration of Rs. 18,000,00 in her name. During the fateful night Chandra Pal alongwith his cousin Babu Ram and sons Ram Kishore and Han Om and one Het Singh and Rajpal Singh were sitting in the. baithak of Siya Ram trying to convince him that keeping the interest of his brother and nephews in his mind he should not waste his property by transferring the same in the name of Shanti Devi. At that time a glowing lantern was kept there and one lantern was also hanging by the side of the wall in the verandah diffusing sufficient light. At about 10. 00 p. m. . Faujdar Singh alongwith his son-in-law Abhilakh Singh armed with countrymade pistols reached there shouting that he had brought dishonour to his family and now they will see how he would not transfer his land evoking Siya Ram to open the door. And as Siya Ram opened the door Faujdar Singh fired a shot at him causing injuries to him. Immediately Siya Ram stepped forward to catch hold of Faujdar Singh and in the meanwhile Abhilakh Singh fired a shot at Siya Ram hitting him at his abdomen and sustaining the fatal injuries Siya Ram fell down at the chabutra of Babu Ram and then the miscreants took to their heels. Sustaining the fatal injuries Siya Ram died on the spot instantaneously. Sustaining the fatal injuries Siya Ram died on the spot instantaneously. The police registered a crime against the accused accordingly on the basis of written report handed over by Chandra Pal at the police station (Ext. Ka 1) and made relevant entry in the general diary regarding thereto (Ext. ka 3 and ka 4 ). ( 3 ) SI Nain Singh Sharma to whom investigation of the crime was entrusted went at the scene of occurrence and drew inquest proceedings on the dead body of Siya Ram and prepared the inquest report (Ext. ka 5) and other necessary papers (Exts ka 6 to ka 8 ). Then he handed over the dead body in sealed cover alongwith necessary papers to the constables for being taken for its postmortem. He also inspected the site of occurrence and prepared its site plan map (Ext. ka 11 ). Then he collected blood-stained and simple earth, picked up pellets, wads etc. lying on the pot and sealed them in separate packets and prepared their memos (Exs. ka 9 and ka 10 ). The investigating officer also recorded statements of the witnesses and did other necessary things. ( 4 ) AUTOPSY conducted on the dead body of Siya Ram by Dr. Daya Shanker, Medical Officer District Hospital Etah on 9th of December, 1979 at about 3. 00 p. m. revealed ante mortem firearm wound of entry 2 cm x 2 cm x cavity deep on left side abdomen 4 cms away and at 2 oclock position to umbilicus and loops of intestines protruding out. Besides it the postmortem also revealed two ante mortem firearm wounds of entry on right nipple each measuring 0. 5 cm x 0. 5 cmx skin deep and an ante mortem firearm wound of entry on left wrist. On an internal examination peritoneum was found, punctured and haematoma present in the layers of abdominal wall. The stomach contained semi digested food about 6 ozs. Small intestines were found grossly lacerated at places. The doctor removed two wads and 13 pellets from inside the wounds. The doctor opined, that the death was caused as a result of shock and haemorrhage on account of ante mortem injuries about one and a half day ago. ( 5 ) AFTER completing the investigation the police submitted chargesheet against the accused accordingly. The doctor removed two wads and 13 pellets from inside the wounds. The doctor opined, that the death was caused as a result of shock and haemorrhage on account of ante mortem injuries about one and a half day ago. ( 5 ) AFTER completing the investigation the police submitted chargesheet against the accused accordingly. ( 6 ) THE accused pleaded not guilty denying the alleged occurrence altogether and stating that they were got implicated in the case falsely on account of enmity as accused Faujdar Singh had lodged an FIR at the police station that Chandra Pal and his son Ram Kishore had stolen his she buffalo. ( 7 ) AFTER framing of the charge against the accused the prosecution examined Chandra Pal (PW 1) and Ram Kishore (PW3) as eyewitnesses of the occurrence. PW 2 constable Ram Saran is one of the two constables to whom dead body of Siya Ram in a sealed cover alongwith necessary papers was handed over to be taken to mortuary for its postmortem. PW 4 Dr. Daya Shankar Medical Officer. District Hospital Etah who conducted autopsy on the dead body of Siya Ram has proved, the postmortem Report stating that the ante mortem injuries found on the dead body of Siya Ram were sufficient to cause. His death in ordinary course. P. W. 5 SI Nain Singh Sharma who investigated the crime proved the police papers. ( 8 ) ON an appraisal of the parties evidence and after hearing the parties counsel the learned Additional Sessions Judge recorded conviction of the accused sentencing each of them to imprisonment for life thereunder. ( 9 ) FEELING aggrieved by the impugned judgment and order the accused preferred this appeal for redress. ( 10 ) NONE appeared for the appellants though represented on record by Shri P. C. Sharma and Ashok Kumar Singh. Advocates. We heard, the learned AGA. The appeal is being decided on merits. ( 11 ) A perusal of the record goes to show that relying upon the testimony of two eye-witnesses namely PW 1 Chandra Pal and PW 3 Ram Kishore the learned Additional Sessions Judge recorded conviction of the accused. Advocates. We heard, the learned AGA. The appeal is being decided on merits. ( 11 ) A perusal of the record goes to show that relying upon the testimony of two eye-witnesses namely PW 1 Chandra Pal and PW 3 Ram Kishore the learned Additional Sessions Judge recorded conviction of the accused. However we are unable to find ourselves in agreement with the findings recorded by the court below for the following reasons: ( 12 ) A perusal of the impugned judgment and the evidence adduced by the prosecution goes to show that there are material variations in the statements of the two eyewitnesses namely PW 1 Chandra Pal, brother of the deceased and his son Ram Kishore (PW 3) going to the very root of prosecution case rendering their evidence unworthy of credence. PW 3 Ram Kishore, nephew of the deceased stated that his tau Siya Ram had illicit intimacy with Shanti Devi wife of Faujdar Singh and for the last two years 271 prior to the occurrence he had been giving all his earnings to her, that a few months ago he got some land purchased in her name from someone by paying the consideration therefore himself, that Faudar Singh was insisting upon Siya Ram to transfer his land in the name of Shanti Devi as by keeping illicit relations with her he had brought disgrace to his family and that therefore he asked his father Chandra Pal who resided at Samothi to come there and make his brother Siya Ram understand the situation. PW 1 Chandra Pal stated that at the time of occurrence he used to reside at Samothi and his brother Siya at Ram Nagar and that his son Ram Kishore also used to reside at Ram Nagar in order to look after his cultivation. He further stated that his brother Siya Ram got nine bighas of land purchased from Ramveer in, the name of Shanti Devi for a consideration of Re. 18000. 00 paid by him and that thereafter Faujdar Singh and his son-in-law Abhilakh Singh started pressurizing Siya Ram to transfer his land in ,the name of Shanti Devi as by keeping illicit relations with her he had brought dishonour to his family and that the fateful day he had gone to Ram Nagar to talk to his brother thereabout. He stated that Siya Ram paid Rs. 8000. He stated that Siya Ram paid Rs. 8000. 00 to Ramveer before execution of the sale deed and Rs. 10,000. 00 were paid by him to Ramveer in the office of the Sub-Registrar at the time of the execution and registration of the saledeed. But he could not with stand his cross-examination as he admitted in his crossexamination that sale deed of nine bighas of land was not executed by Ramveer in favour of Shanti Devi in his presence nor it was scribed in his presence. He could not tell as to who were the witnesses of the sale deed or as to when the sale deed was executed and registered. However, 3 Ram Kishore stated in his cross-examination that when he learnt that his tau Siya Ram purchased some land in the name of Shanti Devi he informed his father to come to Ram Nagar and as his father came to him and asked him as to when the sale deed was executed and for how much consideration he told his father that tau purchased the land in the name of Shanti Devi for Re. 18000. 00 and that then his father replied that he had no knowledge thereabout. Further, P. W. 1 Chandra Pal brother of the deceased stated that at about 9. 10 p. m. the alleged night they all were sitting in the batthak of Siya, Ram conversing together that Faujdan Singh and Abhllakh Singh armed with country made pistols reached there, that he had seen them coming towards them from the window in the batthak when they were at a distance of some the paces there from and that both the miscreants were coming shouting that they would kill him and on reaching at the door of the batthak they asked to open the door whereasp. W. 3 Ram Kishore stated that there was a widow in the baithak, but its door leaves were closed and while they were conferencing together sitting in the batthak they were not in a position to see as to what was going on outside and that both the accused reached there quietly and on reaching at the door they evoked Siya Ram to open the door. These inconsistent and incongruent statements of both these eyewitnesses go to show that they are not truthful and straightforward witnesses, and hence implicit reliance cannot be placed on their interested testimony. These inconsistent and incongruent statements of both these eyewitnesses go to show that they are not truthful and straightforward witnesses, and hence implicit reliance cannot be placed on their interested testimony. Furthermore, a perusal of the check report and (G) D Entry regarding registration of the crime (Ext. Ka 3 and Ka 4) goes to show that Chandra Pal himself handed over written report of the occurrence at the police station, but this witness Chandra Pal (PW1) stated in his cross-examination that in the morning he got the report of his brothers murder scribed by his son Ram Kishore and Sent him to the police station to hand over the report to the police there. It again goes to show that P. W. 1 Chandra Pal is not a truthful and straightforward witness. ( 13 ) SECONDLY, motive impugned for the alleged crime that accused Fauzdar Singh being apprehensive that Siya Ram may not transfer his land in favour of Shanti Devi made murderous assault at Siya Ram does not appeal to our minds. Because the accused were riot going to be benefited by eliminating Siya Ram. Rather landed. property of Siya Ram would have developed upon Chandra Pal on his death. Further, in absence of any convincing evidence it does not inspire confidence that a married lady aged about 45 years or so (accused Faujdar Singh gave his age as 50 years and accused Abhilakhsingh as 27 years in their statements recorded under Section 313 of the Code of Criminal Procedure) having young married daughter would have entangled with an old man aged about 60 years (age of Siya Ram as sted by PW 1 Chandra Pal ). ( 14 ) THIRDLY, according to the prosecution case at about 10. 00 p. m. the fateful night when Siya Ram was assaulted by Faujdar Singh and Abhilakh Singh, one Het Singh, Raj Pal, Chandra Pal Thakur and Babu Singh were present there as they were conversing together in the , but prosecution did not examine any of them as an independent witness in its support, Babu Singh who happens to be the cousin of Chandra Pal (PW 1) did not come forward to support the prosecution case probably because it was not the truth. ( 15 ) FOURTHLY, FIR of the occurrence was lodged at the police station with much delay as the alleged offence took place on 7th of December, 1979 at about 10. 00 p. m. and the FIR of the occurrence was lodged at the police station Sidhpura next day i. e. 8th of December, 1979 at about 9. 15 a. m. whereas the police station is situate at a distance of only five miles fro the place of occurrence, P. W. 1 stated at because of fear he did not go to police station to lodge FIR soon after the murder. The explanation offered for not lodging FIR of the occurrence at the police station soon after the incident does not appear to be plausible and convincing, as the occurrence did not take place at some dead hour of night. Moreover, Chandra Pal brother of the deceased was not all alone and according to PW 1 Chandra Pal himself one Het Ram, Raj Pal Singh and Chandra Pal Thakur were also present besides his cousin Babu Ram and two sons Ram Kishore and Han Om at that time. Unexplained delay of some 9-10 hours in lodging the FIR is fatal to the prosecution case and thus the FIR loses all its corroborative value. ( 16 ) LASTLY, from a perusal of Form No. 13 (Ext. ka 7) which is usually known as chitthi ravangi time of sending dead body to the police Head Quarters has not been mentioned in the relevant column and on its back time of reaching the dead body at the police Head Quarters and the time of sending dead body to the mortuary there from has not been mentioned distinctly in the column meant therefore which goes to show that FIR was not lodged at the police station at the time it purports to be. Further, if the FIR was lodged at the police station at about 9. 15 a. m. and inquest proceedings concluded and dead body in a sealed cover alongwith necessary papers handed over to the constables for being taken for its post mortem at 12. 30 noon it should have reached the police headquarters situate at the distance of 35 kms. the same afternoon. But a perusal of the document aforesaid (Ext. ka 7) goes to show that the dead body reached the police headquarters next day i. e. on 9/12/1979. Furthermore. 30 noon it should have reached the police headquarters situate at the distance of 35 kms. the same afternoon. But a perusal of the document aforesaid (Ext. ka 7) goes to show that the dead body reached the police headquarters next day i. e. on 9/12/1979. Furthermore. PW 5 SI Nain Singh Sharma to whom investigation of the crime was entrusted and who investigated the crime could not tell in his cross-examination as to when special report of the crime was sent after registration of the case at the police station to the Higher Authorities. All these facts lead to the irresistible conclusion that the FIR of the occurrence was not in existence by the time the inquest proceedings were concluded and was recorded later on after due deliberations and consultations. ( 17 ) IN view of above infirmities and incongruities the evidence furnished by the prosecution is too shaky, suspicious and fragile to furnish a sound foundation for conviction of the accused. We therefore find that prosecution has failed in establishing the guilt of the accused convincingly and satisfactorily beyond reasonable doubt. Since the Judgment of the trial Court is based on mis appreciation of evidence and is somewhat perfunctory it cannot be sustained in law and is liable to be set aside. The appeal is therefore allowed and conviction and sentence recorded against the accused are hereby set aside. ( 18 ) THE accused are hereby acquitted of the charge levelled against them. They are on bail their bail bonds are hereby discharged. ( 19 ) OFFICE to send copy of the Judgment and transmit record of the case to the Court below for incorporating necessary entry in the relevant register and reporting compliance within two months. Appeal allowed. . .