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2004 DIGILAW 1533 (ALL)

Jagatpal v. State of Uttar Pradesh

2004-08-11

S.K.AGARWAL, V.S.BAJPAI

body2004
S. K. AGARWAL, J. ( 1 ) THE appellants Jagatpal, Munna alias Avadh Behari, Kallu alias Ram Behari, Shyam Behari, Naresh and Swami Saran were convicted under Section 302 read with Section 149 IPC and sentenced to imprisonment for life by Sri L. S. Shukla, VI Additional Sessions Judge, Fatehpur, in S. T. No. 210 of 1979. Under Section 148 IPC they were sentenced to one years R. I. Under Section 201 IPC they were sentenced to three years R. I. and a fine of Rs. 100/- each and in default of payment of fine they were further to undergo six months R. I. Accused- appellant Swami Saran was further convicted under Section 324 IPC and sentenced to one year R. I. These sentences were to run concurrently. ( 2 ) AGGRIEVED by the above said conviction and consequent sentences the present appeal was preferred by these appellants. ( 3 ) THE occurrence in this case allegedly took place, according to the F. I. R. on 9-10-1978 at 1. 3-0 p. m. in the Gher of the deceased at his well in village Bada Tiwari Purka Derha, Majra Sar-kundi, P. S. Asodhar, District Fatehpur. Swami Saran, Jagatpal and Kallu alias Ram Behari along with two unknown persons armed with guns. Munna alias Avadh Behari armed with Gandasa, and Shyam Behari and Naresh were armed with axes at the relevant time. The deceased at the same time was present at his well to take a bath. A bucket and a Lota was there on the platform of the well. At the relevant time he was cleaning with mud his Tiffin career. Three of the accused persons, namely, Kallu alias Ram Behari, Jagatpal sons of Ram Kumar and one of the unknown jumped over the western wall of his Gher. They came to the well. Rest of the accused persons came to the well by entering from the main gate. Jagatpal exhorted by saying Aab Sale Bhag Kar Kanha Jaoge. Mere Bap Ko Mar Men Ma Ko Ran (widow) Kiya Hal. Tumhane Khunse Aapni Ma Ka Suhag Aaj Bhanunga. On the exhortation by Jagatpal, Kallu alias Ram Behari made the first fire on the deceased. Swami Saran made the second fire and there-after Jagatpal also fired on him. As a consequence of these shots the deceased fell to the ground and died. The dead body was dragged by Munna alias Avadh Behari. On the exhortation by Jagatpal, Kallu alias Ram Behari made the first fire on the deceased. Swami Saran made the second fire and there-after Jagatpal also fired on him. As a consequence of these shots the deceased fell to the ground and died. The dead body was dragged by Munna alias Avadh Behari. Naresh and Shyam Behari along with their unknown companions. When they were doing so, the wife of the deceased and other family members started raising alarm to attract the villagers. The exact statement was villagers please come. They are killing and dragging the dead body. When Smt. Lilawati tried to desist them from taking away the body of her husband, Swami Saran is said to have fired a shot on her leg. She also suffered injuries as a consequence and fell down near the well. The assailants also threw a challenge by saying that if any one came near them they will shoot them also. Due to fear none of these family members or those who arrived at the scene of occurrence, on hearing their alarm, dare to pursue these assailants. The witnesses, just to save themselves, stood behind the main door. The dead body was dragged upto the field of Dwarika and the informant. It was placed there on the middle of the Mend. Beheading took place here. It was done by Munna. The body was thereafter, it is alleged, was warpped in a cotton sheet and was carried to the riverbank. The written report was prepared by Sri Nath on the dictation of the informant. Kali Charan thereafter proceeded all along to the police station leaving the injured Lilawati at the house. ( 4 ) A case was registered at P. S. Asodhar at 4. 30 p. m. Its check report is Ext. Ka-1. Statement of Kali Charan allegedly was recorded at the police station. Thereafter the investigation was entrusted to P. W. 5 Balikaran Singh. ( 5 ) LILAWATI was medically examined on 10/10/1978 at 4. 00 pm. by P. W. 4 Dr. J. S. Roy. Since the dead body of Babu Ram was not traceable despite the net having been thrown into the river, no post-mortem report of his has come on the record. ( 6 ) THE prosecution examined Smt. Lilawati as P. W. 1. She is wife of the deceased and is a ocular witness of the incident. J. S. Roy. Since the dead body of Babu Ram was not traceable despite the net having been thrown into the river, no post-mortem report of his has come on the record. ( 6 ) THE prosecution examined Smt. Lilawati as P. W. 1. She is wife of the deceased and is a ocular witness of the incident. She is also an injured. Kali Charan is the informant of the case and was examined as P. W. 2. He too is an ocular witness. No other eyewitness belonging to the vicinity of the place of occurrence was examined by the prosecution in this case to corroborate their version. Formal witnesses like Lalmani Mishra, P. W. 3, Head Moharir, who prepared the check report and made G. D. entry etc. Dr. J. S. Roy, who examined P. W. 4 Lilawati. P. W. 5 Balikaran Singh, 1. 0. and P. W. 6 Ram Asare Pandey, Junior Scientist, examined to prove that the gun recovered from Ram Biharis house was fired in the incident were also examined during trial. ( 7 ) THE defence has denied the prosecution charges in their statements made under Section 313 Cr. P. C. They claimed to be tried. Kallu alias Ram Behari pleaded alibi. In support of the plea of alibi he examined D. W. 1 P. P. Yadav, D. W. 2 Rajendra Prasad and D. W. 3 Mewa Ram. The case set up by Ram Behari was that he being a military man was sent to bring a Generator set from Agra to his unit at Chandi Mandir (Haryana ). He started from there on 19-8-1978 and left on 5-9-1978 for the parent unit at Chandi Mandir (Haryana ). He was not present in his village on the day of occurrence, i. e. 9/10/1978 at 1. 30 p. m. , as alleged by the two eye-witnesses. ( 8 ) THE trial court after examining the evidence of the prosecution and the three defence witnesses came to the conclusion that all these appellants participated in the incident and caused the death of Babu Ram. He accordingly convicted and sentenced them as stated above. ( 9 ) SRI P. N. Misra, learned counsel for the appellants, urged before us that Ram Beharis alibi being a cast iron one, if accepted by the court, would cast serious doubt in the authenticity of the evidence of the two eyewitnesses. He accordingly convicted and sentenced them as stated above. ( 9 ) SRI P. N. Misra, learned counsel for the appellants, urged before us that Ram Beharis alibi being a cast iron one, if accepted by the court, would cast serious doubt in the authenticity of the evidence of the two eyewitnesses. There is serious doubt in the participation of six known persons with two unknown persons. The story of beheading does not find corroboration from the evidence and the circumstances available on record. P. W. 2s presence has also been very seriously challenged on the ground that he was an enemy in degree equal to that of the deceased. The deceased and he were brothers. They were convicted for the murder of the father of Jagatpal, appellant. Therefore, the contention is that had he been present on the spot at the relevant time, the assailants who were eight in number would never had spared him. According to prosecution it is further urged, that two known and one unknown miscreants jumped the wall to reach near the well first. Remaining five accused persons came through the main door where the informant was sitting with his other family members. When the assailants entered the premises of the deceased in two different sets and from two sides, there was no difficulty in eliminating both the brothers who were convicted for the murder of Ram Kumar, father of Jagatpal, had the informant been present at the main door. Their appeal was pending in the High Court and some 18-19 months ago both of them were released by this Court on bail. Nothing occurred in these months, hence, there was no immediate motive. So far as the recovery of the gun is concerned, it is contended that the evidence in this connection is not reliable for two reasons, firstly, that the pin of the gun was found tampered with. With the tampered pin it is next impossible to compare the pin head marks available on the recovered spent cartridges from the shots fired for the test purposes. They, under no circumstance, could provide any similarity to fix the use of the gun. The ballistic experts opinion, therefore, could not be relied upon regarding the use of the licensed weapon of Kallu alias Ram Behari. Moreover, if he was on duty, he cannot keep the gun nor could be present. They, under no circumstance, could provide any similarity to fix the use of the gun. The ballistic experts opinion, therefore, could not be relied upon regarding the use of the licensed weapon of Kallu alias Ram Behari. Moreover, if he was on duty, he cannot keep the gun nor could be present. ( 10 ) THE gun was sent to ballistic expert after one year, i. e. on 16/11/1979. It was sent directly from the police station. It was not sent under the seal of the court. Out of the eight assailants, four have not been assigned any role, was the contention raised in the end. ( 11 ) REGARDING appellant Munna it was contended that there is no corroborative evidence that he chopped the head of the deceased and took it to his house. If the evidence of Kali Charan is discarded then the entire story set up on the FIR by him and adhered to during trial with some modifications, it would be difficult to believe the same. ( 12 ) LEARNED AGA contended in contrast that the evidence of alibi was rightly discarded by the trial Judge. The defence has failed to prove it as cast iron. There is possibility that he may have come back to the village and after committing the offence may have joined his team at Tuglaqabad. The eye-witnesses being family members of the deceased are reliable. ( 13 ) IN rejoinder it has been alleged that there is no corroboration of the evidence of two eyewitnesses from any independent source. The presence of a number of houses in the vicinity, where offence was committed, is admitted. It is also claimed that the injured witness in this case was sent for medical examination highly belatedly, i. e. she was medically examined nearly 26 hours after the incident on the next day. There is no explanation why she was not sent for medical examination on the same day. Her injury was bleeding profusely. Why was she not taken to police station by the informant? ( 14 ) IN order to appreciate the rival contentions we prefer to examine P. W. 2 Kali Charan first. In our opinion there is some force in the contention raised by learned counsel for the defence visa-vis this witness. Her injury was bleeding profusely. Why was she not taken to police station by the informant? ( 14 ) IN order to appreciate the rival contentions we prefer to examine P. W. 2 Kali Charan first. In our opinion there is some force in the contention raised by learned counsel for the defence visa-vis this witness. It is an admitted fact that he along with the deceased Babu Ram was convicted for the murder of Ram Kumar, father of the Jagatpal under Section 302 IPC. Their appeal was pending in this Court and some 18-19 months before the incident they were enlarged on bail. He did not state anything by way of any immediate provocation which may have made these appellants to decide to avenge the murder of their father after 18-19 months of their release on bail. Apart from it, the degree of the enmity between the appellants and these two, the deceased and the informant Kali Charan, was on an even keel. We find no valid reason for these accused persons to spare this man if he had been within their sight and present at the spot, as alleged by him. He had clearly stated that when the dead body was dragged by the assailants and it was taken beyond their vision towards the river all other family members who were present on the spot along with him and those who come to the spot on their alarm did not muster enough courage to go in search of the deceased to the site he was carried to by the appellants. In our opinion, it would not be probable for this witness to muster sufficient courage to go to the police station all alone if he could not go in search of the body of Babu Ram to lodge his report. This fact is further fortified from the fact that the Chitthi Majrubi was prepared for the medical examination of injured Smt. Lilawati, wife of the deceased, on the next day in the morning hours. She was medically examined at 4. 00 p. m. This fact coupled with the fact that this witness was left wholly untouched by the assailants leaves no room for doubt in our mind that he presence at the spot at the time of occurrence was highly doubtful. She was medically examined at 4. 00 p. m. This fact coupled with the fact that this witness was left wholly untouched by the assailants leaves no room for doubt in our mind that he presence at the spot at the time of occurrence was highly doubtful. There are some other contradictions in his statement which also corroborate the fact that this written report could not have been lodged at 4. 30 p. m. i. e. within three hours from the time of occurrence. It is his admission that he took about half an hour in getting his written report scribed. He himself is a literate persons having failed in High School examination. However, he did not write down the report himself. It was dictated to one Sri Nath and thereafter it is alleged that he set out for the police station. This also creates reasonable doubt in his presence at the spot. The distance of the police station was six miles only. This witness has left behind his injured sister-in-law. In the evidence he claimed that he had gone to the police station all alone. The assailants were residents of the same village. The depth of the animosity was well known to him. Therefore, we are of the considered opinion that this witness was not present at the spot of occurrence on the relevant date and time. He had stated in the FIR that he and those present with him had moved behind the main door fixed at the gate. In the examination before the trial court he denied this fact later on because if the witnesses including him had gone inside the gate, the act of chopping of the head would not be seen by them. This denial, therefore, was premeditated in order to see all the subsequent parts of the incident that he had narrated in the FIR as well as in the trial court. His precise statement is that all those belonging to his family, who were stationed outside the gate, went inside during occurrence or not he do not remember. He further stated that during the occurrence he did not rush behind the door in order to save himself. It never occurred to him to go inside his house to secure himself from the assailants. He further stated that during the occurrence he did not rush behind the door in order to save himself. It never occurred to him to go inside his house to secure himself from the assailants. We cannot afford to attach much value to this part of his statement because the assailants, one set, entered from that very gate and all of them came inside in the outer courtyard. Unless he had gone inside the house to save himself he would not have escaped unhurt. Strangely enough, as per his statement, none from the vicinity came to his house despite this ghastly incident having publicly taken place. Admittedly, he started for the police station from his house around 2. 30 or 2. 45 p. m. He had no talks or conversation with any villager regarding the incident before starting for the police station. They did not rush inside their house to fetch their weapons. He has weapons, according to him Smt. Lilawati was fired upon from behind. The entry wound on the person of Lilawati was on the front of her leg. How Lilawati was placed on a cot inside the house is not stated by this witness. Contrary to him Lilawati stated that she was placed on the cot inside the house by the witnesses including P. W. 2 Kali Charan. Thus, from the said discussion, the presence of this witness at the spot, in our opinion, cannot be accepted. Once we arrive at this conclusion, we are left with no other option but to discard his whole testimony. The above conclusion of ours has a serious bearing upon the time of occurrence, the manner and also place of the same. ( 15 ) AFTER having discarded the version of P. W. 2 Kali Charan we have only the testimony of injured P. W. 1 Lilawati, but before entering into that controversy we have to see whether the prosecution has proponed the time of occurrence. In this connection we have to bear in mind that admittedly some time ago a dacoity was committed in the house of Kali Charan in which Kali Charan was severely assaulted by the dacoits who decamped with the booty after that. According to Kali Charan the deceased had cast suspicion upon Swami Saran for the commission of that dacoity. In this connection we have to bear in mind that admittedly some time ago a dacoity was committed in the house of Kali Charan in which Kali Charan was severely assaulted by the dacoits who decamped with the booty after that. According to Kali Charan the deceased had cast suspicion upon Swami Saran for the commission of that dacoity. The fact that Lilawati was not sent for medical examination despite profuse bleedings from her injuries leaves sufficient room for doubt that this incident had taken place after the sun set and setting in of the darkness. The registration of the FIR at 4. 30 p. m. in the face of the fact that her medical examination took place at 4. 30 p. m. on 10/10/1978, i. e. next evening leaves no room to doubt that it is not probable. Failure of the prosecution to establish the beheading on the mend between the fields of the informant and Dwarika further lends assurance to our conclusion made above. There was no recovery of any blood from the pathway by which the head was taken away by the Munna to his house. There was no recovery of any blood inside the house of Munna despite the fact that the 1. 0. had visited that house within hours from the occurrence. Chopped off head was never recovered from the house of this appellant. These circumstances, when read together with the circumstance that informants presence has been doubted by us and his testimony is discarded from consideration, the entire picture the emerges out makes it possible to conceive that the incident had taken place during the darker hours and not at 1. 30 p. m. , as alleged. It is unbelievable that a person, the deceased, would go to take his bath at 1. 30 p. m. at the well. This is why Smt. Lilawati was found on a cot inside her dubari. Many questions and probabilities would confront us once this situation is taken into consideration. There is no evidence in this context that any medical aid was afforded to this injured Smt. Lilawati during her stay at her house during the evening and the night. It further lends credence to our above-said inference. Many questions and probabilities would confront us once this situation is taken into consideration. There is no evidence in this context that any medical aid was afforded to this injured Smt. Lilawati during her stay at her house during the evening and the night. It further lends credence to our above-said inference. ( 16 ) NOW examining the testimony of Smt. Lilawati in the above said context we find that so far as her presence is concerned, there is hardly any room to doubt that she was present at the house and had also suffered the injury on her leg of a firearm but the crucial question that would accost us is whether the version given out by her in the trial stands the test or the scrutiny. So far as her position is concerned, it is neither her case nor the case of P. W. 2 Kali Charan that she came out of the Gher to see the beheading as well as the removal of the body from the mend, between the fields of Dwarika and the informant, towards the river and the fact that Munna be haeaded him and removed the head to his house. However, she had tried to corroborate the FIR in its entirety. This is a serious anomaly in her evidence which makes us come to the conclusion that she being the wife of the deceased had taken upon herself to corroborate the story culled out by P. W. 1 Kali Charan in collusion with the police. She is a highly interested witness. Deep seated enmity was already in existence and it would be probable that strong suspicion in their mind against the accused persons would serious raise its head. They would not reconcile to anyone else interested in the elimination of her husband. It impelled her to corroborate the entire version contained in the FIR blind-fold. She was found when the 1. 0. came to the spot inside the Dubari. According to her testimony, at the time of occurrence, she was at the well and suffered injury when she attempted to prevent the assailants from dragging away the dead body of her husband. It is also confounding why she made no attempt to prevent the assailants from the shoot out on her husband. Another fact crucial for the determination of the above conclusion is the participation of two wholly unknown persons in the incident. It is also confounding why she made no attempt to prevent the assailants from the shoot out on her husband. Another fact crucial for the determination of the above conclusion is the participation of two wholly unknown persons in the incident. Both of them were armed with firearms. If this incident had occurred during night hours and there were unknown persons, it is probable that so many persons, who are also collaterals of the complainant party, would not ordinarily take part in the incident. The prosecution, during the trial in the statement of the 1. 0. , has also came out with the case that the remaining body that was taken to the river bank was cut into pieces by these assailants and those parts were thrown into the river. It was so stated to explain the non-recovery of the body. The 1. 0. , claimed to have arrived at the scene of occurrence the same evening at about 6. 00-6. 30 p. m. Yet they were unable to recover even a single piece of the body despite the net having been thrown into the river promptly. This was not so stated by any of the two eyewitnesses. No other witness was examined to prove it. Thus, there seems to be a brazen attempt on the part of these two eyewitnesses to include as many persons of the family of Ram Kumar as possible in the incident. Five of these appellants are his sons and Swami Saran is his brother. The story of three persons armed with axes and Gandasa was introduced at a later stage in the case. We find it difficult to believe that where unknown persons were employed, why so many persons of a particular family aggrieved by the murder of their father by the deceased and the informant, would participate in the incident. It is further fortified from the fact that Kali Charan remained wholly untouched. Had it been a day-light occurrence, it is our firm opinion that Kali Charan would not have been spared if these appellants were participants in the incident as they had approached the deceased in two different sets, one entered the Gher by jumping over the wall, height of it admittedly was 2-1/2 to 3 hands. The 1. 0. had admitted that he did not find any evidence of either jumping over the wall or scaling the same. The 1. 0. had admitted that he did not find any evidence of either jumping over the wall or scaling the same. Admittedly, all those three persons who were alleged to have jumped such a high wall were also possessing guns. It is difficult to believe that a height of 6t (feet) or above would easily be crossed by jumping over it by any person with a gun in his hand unless he is a high jumper of international repute. Merely because a witness is injured intrinsic value of her evidence is not enhanced by this fact alone. There are many facts and circumstances occurring in the case which may make it difficult for the court to accept the evidence of such an injured witness. Injuries only prove the presence. It would not automatically render her testimony trustworthy. It has to be tested and scrutinized in the same manner in which any other witness would be. ( 17 ) THEREFORE, for the reasons discussed above we are not prepared to accept the story set out by Kali Charan and adopted by Smt. Lilawati. In our opinion the occurrence had taken place after the fall of darkness and the culprits were not identified by the members of the family. The FIR was prepared the next morning in consultation with the police and was anti-dated in order to rope in these six members of the same family, five of whom have lost their father, for which deceased and P. W. 2 Kali Charan were convicted. They were nominated, in all probability, on account of deep suspicion and animosity. ( 18 ) IN this context the opinion of the ballistic expert regarding the gun of Kallu, who is a military man in the present incident and use of the same is also found tobe highly doubtful. It is admitted by the ballistic expert that the firing pin of the gun sent to him was tampered. It was struck by a heavy weight before it came to him. In the circumstances, any pin mark created by it on the shots fired for the purposes of test and comparison with the spent cartridges recovered from the spot would under no circumstances present a picture similar to that of the pin marks found on the spent cartridges. It was struck by a heavy weight before it came to him. In the circumstances, any pin mark created by it on the shots fired for the purposes of test and comparison with the spent cartridges recovered from the spot would under no circumstances present a picture similar to that of the pin marks found on the spent cartridges. The comparison made and opinion expressed by the ballistic expert, therefore, cannot be relied upon to hold this appellant guilty of participation in the murder of Babu Ram on this ground. The ballistic expert has candidly admitted that he did not held any certificate or qualification from any institute to be a ballistic expert. This is yet another circumstance for us to discard his evidence. There is similarity between TC 2 and 3 with the test cartridges. The other two cartridges recovered from the spot were fired from some other gun. This opinion would also be unreliable for another reason that this gun was sent a year after its recovery to the ballistic expert without it being produced before the court. It was not sent to the ballistic expert under the courts direction and seal. It was directly sent under the seal of a police officer. This also creates serious doubt in our mind regarding this gun having been recovered at the alleged time and place. The opinion of the ballistic expert that two of the spent cartridges recovered from the spot were fired from this gun, therefore, cannot be accepted for the reasons discussed above. ( 19 ) NON-EXAMINATION of witnesses of the vicinity who admittedly reached at the scene of occurrence in the presence of the assailants further causes a serious dent in the genuineness and truthfulness of the evidence of these eyewitnesses. No reasonable explanation was given by the prosecution for non-production of such witnesses. An adverse inference, hence, is available against the credibility of the evidence of these witnesses. ( 20 ) IN view of our discussions made above, we find it not necessary to go into the defence evidence regarding alibi of Kallu alias Ram Behari in greater details. From the discussion made by the learned Addi. Sessions Judge in his judgment we are convinced that his alibi ought to have been accepted. The learned Sessions Judge erred in not accepting the same. From the discussion made by the learned Addi. Sessions Judge in his judgment we are convinced that his alibi ought to have been accepted. The learned Sessions Judge erred in not accepting the same. There is conflict between the testimony of P. W. 1 and P. W. 2 regarding his presence in the village. According to P. W. 1 this appellant was present in the village for the last 8-10 days from the date of occurrence, whereas P. W. 2 stated that he had seen him only a day before the occurrence. The houses of the two families are contiguous and separated by a common wall. In such a situation the anomaly in the evidence of these two witnesses assumes a serious proportion and makes us believe that the alibi evidence brought on record by this appellant is worthy of credence. In our opinion the evidence of D. Ws. 1, 2, and 3 should not have been discarded so lightly by the trial court. ( 21 ) IN view of our above discussions, this appeal deserves to be allowed. It is accordingly allowed. They are acquitted. The conviction of all these appellants for the charges for which they were convicted and sentenced is hereby set aside. They are on bail. They need not surrender. Their bail bonds are can-celled an sureties are hereby discharged. Appeal allowed. . .