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Allahabad High Court · body

2004 DIGILAW 703 (ALL)

PREM PAL v. STATE OF U P

2004-03-31

M.CHAUDHARY, U.S.TRIPATHI

body2004
M. CHAUDHARY, J. This is an appeal filed by the appellant from judgment and order dated 31st of March 1981 passed by II Additional Sessions Judge, Etah in Sessions Trial No. 79 of 1980, State v. Prem Pal & others, convicting accused Prem Pal under Section 302 IPC and Khubi and Chheda Lal under Section 302 read with Section 34 IPC and sentencing each of them to imprisonment for life thereunder. 2. Since appellants Chheda Lal and Khubi alias Khub Singh were reported having died the appeal preferred by these appellants stood abated vide order dated 8-1-04. 3. Brief facts giving rise to this appeal are that at about 7. 00 p. m. on 24th of October 1979 Beni Ram, cousin of the deceased lodged an FIR at police station Kasganj situate at a distance of two and a half miles from Nagla Kiloni alleging that there was a long standing enmity between him and his first cousin Niwasi Lal on one hand and Prem Pal and his family members on the other as his father Bhupat Singh was murdered on one hand and Gyan Singh father of Prem Pal and his two family members were murdered on the other and persons on both the sides were prosecuted therefor. Though ultimately both the cases ended in acquittal. Subsequently Niwasi Lal alongwith his children started residing at Kasganj. On 24th of October 1979 Niwasi Lal went from Kasganj to Nagla Kiloni to see Beni Ram and after visiting his house he went to the chhappar of Chaturi. At about 5. 00 p. m. Chaturi alongwith Angad, Chheda Lal son of Dhan Singh, Niwasi Lal, Genda and Roshan were playing cards sitting on cots lying in his chhappar. Chheda son of Narain and Khubi were also sitting there. At that time Prem Pal brought a load of millet and went to his house. After a little while at about 5. 00 p. m. Chaturi alongwith Angad, Chheda Lal son of Dhan Singh, Niwasi Lal, Genda and Roshan were playing cards sitting on cots lying in his chhappar. Chheda son of Narain and Khubi were also sitting there. At that time Prem Pal brought a load of millet and went to his house. After a little while at about 5. 30 p. m. Prem Pal again came there having load of millet which he placed at the corner of the chhappar and took out a sickle from the fascine of millet and put the same on the neck of Niwasi Lal almost chapping off his head by neck and then Khubi and Chheda Lal caught hold of Niwasi Lal by pressing his legs and at that time Prem Pal took out a gandasa from inside the bundle of millet find gave gandasa blows at his body. On hearing the hue and cry raised by Chaturi one Virendra Singh and several other co-villagers rushed to the scene of occurrence and witnessed the incident. The police registered a crime against the accused under Section 302 IPC accordingly and made entry regarding registration of the crime in the general diary. 4. Investigation of the case was entrusted to SI Udal Singh who went to the scene of occurrence but since there was no proper arrangement of light inquest proceedings could not be conducted in the night. However the Investigating Officer recorded statements of the witnesses. The following morning SI Udal Singh drew inquest proceedings on the dead body of Niwasi Lal and prepared the inquest report (Ext. Ka-6) and other necessary papers (Exts. Ka-7 to Ka-10) and entrusted the dead body in a sealed cover to constables Ram Narain and Har Prasad for being taken for its post mortem. He collected blood stained and simple earth from the scene of occurrence and prepared its memo (Ext. Ka-11) and did other necessary things. He also inspected the site and prepared its site plan map (Ext Ka. 18 ). 5. Autopsy conducted on the dead body of Niwasi Lal by Dr. P. N. Verma, the then Medical Officer District Hospital Etah on 26th of October, 1979 at 10. Ka-11) and did other necessary things. He also inspected the site and prepared its site plan map (Ext Ka. 18 ). 5. Autopsy conducted on the dead body of Niwasi Lal by Dr. P. N. Verma, the then Medical Officer District Hospital Etah on 26th of October, 1979 at 10. 00 a. m. revealed the below noted ante mortem injuries: (1) Lacerated wound 19 cm x 7 cm x bone Jeep around the neck except on the back at spine and all the muscles and other organs thereunder cut. (2) Lacerated wound 9 cm x 4 cm x brain deep on right side of head 2 cm above right ear. Wound was oval shaped. Underlying bone fractured. (3) Lacerated wound 4 cm x 3 cm x muscle deep on the top of right shoulder. (4) Lacerated wound 15 cm x 4 cm x muscle deep on outer side of right arm in upper and middle part. (5) Lacerated wound 9 cm x 5 cm x through and through on right hand from wrist to web between thumb and index finger. Underlying bone cut. Thumb attached by skin only. (6) Lacerated wound 12 cm x 2 cm x bone deep on palmer side of left hand from wrist to little finger. Underlying bone cut. Little finger attached by skin only. (7) Lacerated wound 4 cm x 2 cm x bone deep on palmer side of left thumb at the root. On an internal examination right temporal bone was found fractured and trachea and esophagus cut. Stomach and small intestine empty. Large intestine contained small amount of faecal matter. The doctor opined that the death was caused about one and a half to two days ago due to shock and haemorrhage as a result of ante mortem injuries. 6. It appears that on 5th of November 79 investigation of the case was transferred to Station Officer Inspector Virendra Singh who after completing investigation submitted charge sheet against the accused. 7. After framing of the charge against the accused the prosecution examined Chaturi (PW 2) and Genda Lal (PW 3) as eye witnesses of the occurrence. PW 1- Beni Ram, cousin of the deceased and this first informant who lodged FIR of the occurrence at the police station has proved the same. He is not an eye witness of the occurrence. After framing of the charge against the accused the prosecution examined Chaturi (PW 2) and Genda Lal (PW 3) as eye witnesses of the occurrence. PW 1- Beni Ram, cousin of the deceased and this first informant who lodged FIR of the occurrence at the police station has proved the same. He is not an eye witness of the occurrence. The testimony of the remaining witnesses is more or less of formal nature as PW 5 HC Dhanpal Singh who prepared check report on the basis of the written report handed over to him at the police station and made entry regarding registration of the crime in the general diary has proved these papers (Exts. Ka-3 & Ka-4 ). PW 6 Dr. P. N. Verma who conducted autopsy on the dead body has proved the post mortem report (Ext. Ka- 5 ). SI Udal Singh who investigated the crime in main has proved the police papers. PW 4 Inspector Virendra Singh to whom investigation was transferred under the orders of the Circle Officer on 5th of November, 1979 after recording statements of the witnesses and completing the investigation submitted charge sheet against the accused. 8. 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. Accused Chheda Lal stated that he was got implicated in the case falsely at the instance of Chaturi. Admittedly Chaturi appeared as a witness against Narain, father of accused Khubi in a criminal case under Cattle Trespass Act in which he was acquitted. 9. On an appraisal of evidence on the record and hearing the parties counsel the learned trial Judge recorded conviction of the accused sentencing them as stated above. 10. Feeling aggrieved by the impugned judgment the accused appellants preferred this appeal for redress. 11. Appeal filed by accused Chheda Lal and Khubi stood abated as they were reported having died. 12. We have heard learned counsel for the appellant and learned AGA for the respondent State and gone through the record. 13. The appellants learned counsel contended that FIR of the case is ante timed. In order to substantiate his contention argument of the appellants learned counsel is two fold: (i) at the top of the inquest report crime number and particulars of the crime have not been mentioned. 13. The appellants learned counsel contended that FIR of the case is ante timed. In order to substantiate his contention argument of the appellants learned counsel is two fold: (i) at the top of the inquest report crime number and particulars of the crime have not been mentioned. Further time of lodging the FIR was mentioned in the first column subsequently and there is overwriting at the time and date of initiating the inquest proceedings and (ii) a perusal of Police Form No. 13 usually known as chitthi ravangi goes to show that time of lodging FIR at the police station, time of sending the dead body to the police headquarters, approximate time when the death took place and the time of reaching the dead body at the police headquarters are not mentioned therein. The said argument advanced by the appellants learned counsel is not devoid of any force as entry against para 2 of column No. 2 in the inquest report that injuries to the deceased were caused with sickle and gandasa appears having been inserted subsequently as the same is not in the same flow and with the same pen as the other entries. Time of occurrence in the first line on the second page of the inquest report and time of starting inquest proceedings in the third para too appear having been interpolated. Further, PW 1 Beni Ram, the first informant staled in his examination-in- chief that at about 5. 40 p. m. the alleged evening when he returned back from the school Chaturi and others told him that his cousin Niwasi Lal was done to death by Prem Pal, Chheda Lal and Khubi and narrated the incident. However this fact does not find mention in the FIR that he learnt about the murder of his cousin Niwasi Lal from Chaturi and others. Furthermore, he stated in his examination-in-chief that after learning about the murder of his cousin Niwasi Lal he himself scribed the report of the occurrence sitting near the place of incident and went to the police station taking the written report and handed over the same to the police there. Furthermore, he stated in his examination-in-chief that after learning about the murder of his cousin Niwasi Lal he himself scribed the report of the occurrence sitting near the place of incident and went to the police station taking the written report and handed over the same to the police there. However in his cross- examination he stated that after seeing the dead body of his cousin Niwasi Lal he went to the police station and narrated the entire incident to the HM there and that then on being asked by the HM he scribed the report at the police station itself. Admittedly he did not mention in the written report that he was told about his cousins murder by Chaturi, Genda Lal and others. In our view this omission in the FIR is fatal to the prosecution case as the theory that he learnt about his cousins murder from Chaturi and others after returning from the school appears having been developed subsequently. In view of the above facts we are of the view that the FIR was not in existence upto the time of drawing inquest proceedings and thus it loses all its corroborative value and authenticity. 14. The appellants learned counsel further argued that ocular testimony of eye witnesses is discrepant with medical evidence. PW2 Chaturi stated in his examination-in-chief that standing from the back side Prem Pal placed sickle on front of the neck of Niwasi Lal and chopped off his neck by pulling the sickle towards back and Niwasi Lal who was sitting on the cot fell down on the ground and then Chheda Lal and Khubi pressed his legs and Prem Pal pulled out gandasa from the stack of millet and gave gandasa blows to Niwasi Lal. PW 6 Dr. P. N. Verma who conducted autopsy on the dead body stated in his cross- examination that ante mortem injury on the head which was oval shaped could not be caused with gandasa. In our considered view oval shaped ante mortem injury found on the head of the deceased could not be caused by any of the weapons assigned to the assailant. 15. The appellants learned counsel also argued that prosecution case does not appear to be cogent and reliable. PW 6 Dr. P. N. Verma stated that sustaining the injury at his neck the victim must have died instantaneously. 15. The appellants learned counsel also argued that prosecution case does not appear to be cogent and reliable. PW 6 Dr. P. N. Verma stated that sustaining the injury at his neck the victim must have died instantaneously. In our considered opinion said argument advanced by the appellants learned counsel has got much force. It does not stand to reason that if sustaining the fatal injury at his neck the victim died instantaneously then why the appellant pulled out the gandasa from the stack of millet and his associates pressed his legs and he gave gandasa blows to him. And thus the prosecution version lacks spontaneity and conviction. And it all goes to show that the incident did not take place in the manner alleged by the prosecution. 16. Out of the two eye witnesses examined by the prosecution PW 3 Genda Lal has not supported the prosecution case as he stated in his examination-in-chief that the alleged day Prem Pal gave a sickle blow to Niwasi Lal at his neck and ran away. However in the text breath he stated that he did not witness any occurrence. He was declared hostile by the prosecution and cross-examined with the permission of the Court but to no use. He further stated in his cross-examination that he did not witness any occurrence and that at about 10-11 p. m. the alleged day the police reached the village and compelled him to stand as a witness of the occurrence threatening him that otherwise he would be got implicated in some case. Now remains the testimony of PW2 Chaturi who stated his age as 90 years at the time his statement was recorded by the trial Court. A perusal of the FIR goes to show that it mentions that at the time of the incident Chaturi alongwith others was playing cards in his chhappar whereas PW 2 Chaturi stated that at the alleged time he was cutting fodder with Gandasa in his chhappar and that Gandasa kept lying in the chhappar. However PW 7 SI Udal Singh who inspected the site and prepared its site plan map stated that he did not find any Gandasa lying in the chhappar. Admittedly PW 2 Chaturi is one of the panchas of the inquest report. However PW 7 SI Udal Singh who inspected the site and prepared its site plan map stated that he did not find any Gandasa lying in the chhappar. Admittedly PW 2 Chaturi is one of the panchas of the inquest report. PW 7 SI Udal Singh, the investigating officer stated that after registration of the crime he reached the scene of occurrence and recorded statements of Chaturi and other witnesses the same night at about 8. 00 p. m. Inquest proceedings were drawn by him the next morning. Normally in practice eye witnesses of the occurrence are not appointed as panchas for the inquest. In view of these facts testimony of this witness Chaturi is not free from doubt. 17. In view of the above infirmities and incongruities in the prosecution case and evidence it is not safe to place implicit reliance on the uncorroborated solitary testimony of PW2 Chaturi. We therefore find that the prosecution failed in establishing the guilt of the accused convincingly and satisfactorily beyond all reasonable doubt. Findings recorded by the Court below against the accused are based upon incorrect reading of evidence and grounds which are not tenable. The appellant is therefore given benefit of doubt and is entitled to acquittal. 18. The appeal is allowed and conviction of appellant Prem Pal recorded by the Court below under Section 302 IPC and sentence of imprisonment for life awarded to him thereunder are set aside. The accused is hereby acquitted of the charge levelled against him. He is on bail. His bail bonds are hereby discharged. 19. Certified copy of the judgment alongwith record of the case be transmitted to the Court below immediately for necessary compliance under intimation to this Court within two months from its receipt. Appeal allowed. .