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2003 DIGILAW 898 (ALL)

CHHOTEY LAL PANDEY v. STATE OF U P

2003-04-22

K.N.OJHA, M.C.JAIN

body2003
M. C. JAIN. J. The appellant is one Chhotey Lal Pandey who has preferred this appeal against the judgment and order dated 3-12-1981 passed by Sri S. C. Jain, the then Sessions Judge, Mirzapur in ST No. 262 of 1980. He has been convicted under Section 302, IPC and Section 324 IPC read with Section 34, IPC. The sentence of life imprisonment has been awarded for the former offence and rigorous imprisonment for one year for the latter. 2. The incident took place in between the night of 24/25-6-1980 at about 12-1 O clock in village Kajarhat, Police Station Chopan, District Mirzapur and the FIR was lodged by Ram Bilas PW 1 son of the deceased Makkhan on 25-6-1980 at 7. 15 a. m. The distance of the police station from the place of occurrence was about 15 kms. One Lal Ji alias Chhangur son of the deceased and the brother of the informant received injury also in this incident. The deceased Makkhan Yadav had carved out a field for himself by clearing the forest. To its west was the field of Ram Lakhan Pathak, who wanted to usurp the land of the deceased. The deceased had been asked by him to leave the land to which he did not agree. The accused-appellant Chhotey Lal lived at Dalla Bazar. He was said to be related to Ram Lakhan Pathak and was siding him to press Makkhan deceased to relinquish the possession of the field carved out by him by clearing the forest. It was also alleged that 10-12 days before the incident, Biraha was being sung at Dalla Bazar and there had been exchange of hot words between the accused-appellant and the deceased. The former had allegedly issued threat to the latter of dire consequences. The deceased had constructed a thatch (Mandai) on his field and at the time of the incident, he with his sons Ram Bilas informant PW 1 and Lal Ji alias Chhangur (injured) PW 2 was sleeping there. Munni Lal PW 3 brother of the deceased also had his Mandai at some distance and was sleeping there. At about 1 Oclock in the night, Ram Bilas PW 1 woke up on the shrieks of his father and brothers. He flashed his torch and saw accused-appellant and three other unknown persons inside the thatch. Munni Lal PW 3 brother of the deceased also had his Mandai at some distance and was sleeping there. At about 1 Oclock in the night, Ram Bilas PW 1 woke up on the shrieks of his father and brothers. He flashed his torch and saw accused-appellant and three other unknown persons inside the thatch. He allegedly stabbed Makkhan deceased while one of his companions gave a knife blow to Lal Ji alias Chhangur PW 2. Munni Lal PW 3 also arrived there and witnessed the incident. A chase was given to the miscreants who, however, escaped towards Dalla Bazar. Another eye-witnesses Ram Dhani PW 6 reached there from his thatch and, according to the prosecution, he too witnesse the incident. Makkhan died instantaneously. 3. On the lodging of the FIR, the investigation ensued which was taken up by Yogendra Singh, SO PW 9. The medical examination of the injured Lal Ji alias Chhangur PW 2 was done by Dr. D. K. Tewari PW 4 on 25-6-1980 at 10. 30 a. m. The following injury was found on his person: An incised wound 4 cm x 2 cm x 5 cm above the right iliac crest at its middle. 4. The injury was simple and had been caused by sharp edged weapon. 5. The post-mortem over the dead body of the deceased was conducted by Dr. V. Singh PW 5 on 26-6- 1980 at 12. 30 p. m. He was aged about 45 years and about 1-1/2 day had passed since he died. The following ante-mortem injuries were found on his persons: (1) Incised wound 2. 5 cm x 1 cm x 4 cm deep on right side of neck, 7 cm below ear. The margins were clearly cut. The injury cut of trachea, oesophagus, carotid artery and jugular vain. (2) Incised wound 2 cm x 1 cm x 2 cm deep on left side of the neck, 9 cm below the ear. The margins were clearly cut. (3) Abrasion 5 cm x 2 cm on the back of left elbow. 6. The death had occurred due to shock and haemorrhage. 7. The defence was of denial. The accused-appellant pleaded false implication at the instance of Ram Lakhan Pathak. No evidence was adduced in defence. 8. In support of its case, prosecution examined in all nine witnesses. (3) Abrasion 5 cm x 2 cm on the back of left elbow. 6. The death had occurred due to shock and haemorrhage. 7. The defence was of denial. The accused-appellant pleaded false implication at the instance of Ram Lakhan Pathak. No evidence was adduced in defence. 8. In support of its case, prosecution examined in all nine witnesses. Out of them, as it would be gleaned from the above, eye-witnesses were Ram Bilas PW 1, Lal Ji alias Chhangur PW 2, Munni Lal PW 3 and Ram Dhani PW 6. The rest were two Doctors, Investigating Officer and other formal witnesses. Some of the witnesses filed affidavits also in relation to the task performed by them during investigation of the case. 9. We have heard Sri A. K. Awasthi as brief holder of Sri V. C. Tewari learned Counsel for the appellant and Sri G. S. Bisaria learned AGA from the side of the State in opposition of the appeal. We propose to deal with the important aspects of the matter in succeeding discussion having regard to the arguments advanced at the bar in the light of the evidence and attending circumstances. 10. It has first been submitted by the learned Counsel for the appellant that FIR was ante-timed. The incident took place in between the night of 24/25-6-1980 at 12 Oclock or 1 Oclock and as per the prosecution, the FIR was lodged at 7. 15 a. m. on 25-6-1980 by Ram Bilas PW 1 son of the deceased. The argument of ante-timing of the FIR has been sought to be supported by the version of informant that he had reached Chopan (Police Station) at 7 p. m. the next day. It has been pointed out that it was so said by him in his examination-in-chief and as such there could be no question of his being confused for having said so under the stress of cross-examination. However, we find that it was simply on account of slip of tongue that he happened to say about his reaching at Chopan at 7 p. m. It is verified from this fact that the medical examination itself of the injured Lal Ji alias Chhangur had been conducted on 25-6-1980 at 10. 30 a. m. at P. H. C. where he was taken by a police constable. It is manifest that FIR had actually been lodged earlier thereto. 30 a. m. at P. H. C. where he was taken by a police constable. It is manifest that FIR had actually been lodged earlier thereto. There is no doubt at all that due to slip of tongue the informant happened to say about his reaching Chopan at 7 p. m. the next day. There is no other fact or circumstance suggestive of the ante-timing of the FIR. We, therefore, reject this argument that FIR was ante-timed. 11. It has next been argued by the learned Counsel for the appellant that it being a night incident at the field of the complainant and deceased away from inhabitation area, the motive assumes importance. We agree that the aspect of motive has significance in this case. In the FIR the motive assigned was that a few days before the incident, Biraha was being sung at Dalla Bazar and at that time there was exchange of hot words between the accused-appellant and the deceased Makkhan. At that time, the accused-appellant had threatened the deceased with dire consequences. On the face of it, it sounds to be a weak motive with no quick igniting cause, impelling the accused-appellant to commit this murder of Makkhan, joining three others with him in perpetrating it. It appears that realizing the tenuous nature of the motive given in the FIR, the case was improved at the evidence stage when Ram Bilas PW 1 stated that one Ram Lakhan Pathak wanted his father to leave possession of the field which he (deceased) had carved out after clearing forest. Ram Lakhan Pathak wanted to usurp that land, he having his field in the west of that of the deceased. The accused-appellant used to reside in Dalla Bazar, but was said to be friendly with Ram Lakhan Pathak. The witness, by his own statement, even brushed aside the enmity given in the FIR by saying that there was no other enmity between two sides excepting that the accused- appellant wanted him and his father to leave their field. Lal Ji alias Chhangur PW 2 (injured) even stated that Ram Lakhan Pathak was the Mausa of accused-appellant. The witness, by his own statement, even brushed aside the enmity given in the FIR by saying that there was no other enmity between two sides excepting that the accused- appellant wanted him and his father to leave their field. Lal Ji alias Chhangur PW 2 (injured) even stated that Ram Lakhan Pathak was the Mausa of accused-appellant. The motive over the question of getting relinquished the field by the deceased and his sons could be on the part of Ram Lakhan Pathak and it is somewhat incongruous that the accused-appellant, without any personal interest, would espouse the cause of Ram Lakhan Pathak to the extent of committing this crime with the help of three others. The results is that even the aspect of motive as improved at the evidence state does not fit in the situation. The importance or otherwise of the question of motive depends on the facts and circumstances of each and every case. But in the present one having regard to the time and manner of the incident, it has importance and the prosecution utterly failed to assign any firm motive on the part of the accused- appellant for commission of this crime. 12. In the third place, the learned Counsel for the appellant levelled criticism against ocular testimony adduced by the prosecution. It has been pointed out that Ram Bilas Yadav PW 1 and Lal Ji alias Chhangur PW 2 (injured) are the sons of the deceased whereas Munni Lal PW 3 is the brother of the deceased. They are, therefore, interested witnesses. It has also been pointed out that fourth eye-witness Ram Dhani PW 6 is not named in the FIR. We note that four persons including the accused-appellant allegedly participated in the commission of this crime, out of whom two were armed with knives and the other two had lathis. The accused-appellant Chhotey Lal is said to have used a knife. However, Lal Ji alias Chhangur PW 2 sustained an incised wound which was simple. The deceased Makkhan also received two incised wounds and an abrasion. The number of the injuries sustained by these two injured and the deceased are incompatible with the number of the assailants and the manner in which the incident is said to have taken place. Ram Bilas PW 1 insisted that one of the assailants knifed his brothers and the other his father. The number of the injuries sustained by these two injured and the deceased are incompatible with the number of the assailants and the manner in which the incident is said to have taken place. Ram Bilas PW 1 insisted that one of the assailants knifed his brothers and the other his father. Two others kept his father nabbed and they kept their lathis outside the thatch. The incident took place at the dead of the night and Ram Bilas PW 1 and Munni Lal PW 3 allegedly woke up on hearing shouts of the victims whereafter they allegedly ran flashing torches. It has come down from the testimony of Munni Lal PW 3 that his Mandai was at a distance of 100 yards from the spot and on waking he picked up his lathi and torch and then rushed towards the spot. However, he admitted that he only saw the assailants from a distance of 20 paces when they were running Ram Dhani PW 6 (not named in the FIR) claims to have woken on the shouts of Ram Bilas and Munni Lal and to have witnessed four persons including the accused-appellant running. The source of light was the flashing torches of Ram Bilas and Munni Lal. The accused-appellant allegedly had a knife. According to him, only one person (accused-appellant) had a knife, other two had lathis and the fourth one was empty handed. Obviously, his version is at variance from that of other three witnesses. There is also no explanation for his name being not there is the FIR though he has claimed that he remained at the spot till morning. Naturally, therefore, his presence would have been noticed by the informant and he would have normally been named as witness in the FIR. 13. On a global consideration, to us it appears to be a case of hit and run at the dead of the night when none recognized the assailant (s ). Even if it is accepted that eye, witnesses examined by the prosecution or some of them were around nearby, they woke up on the shouts of the deceased and the injured and in all probability by the time they reached the spot, the assailants had already finished their job. Even if it is accepted that eye, witnesses examined by the prosecution or some of them were around nearby, they woke up on the shouts of the deceased and the injured and in all probability by the time they reached the spot, the assailants had already finished their job. It is not free doubt that from fleeting glimpse, if at all caught by them of the culprits while they were running, unmistakably facilitated the recognition of the accused-appellant amongst them. It seems to be more on suspicion and imagination only that he has been implicated. 14. The upshot of the above discussion is that there are unpatchable holes in the prosecution evidence. The accused-appellant deserves to be afforded the benefit of doubt. 15. We accordingly, allow this appeal with setting aside of the order of conviction and sentence passed against the accused-appellant Chhotey Lal Pandey. He is acquitted. He is already on bail. 16. Let a copy of this judgment along with record of the case be immediately sent to Court below for necessary entries in the relevant register under intimation to this judgment along with record of the case be immediately sent to Court below for necessary entries in the relevant register under intimation to this Court within one month. Appeal allowed. .