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2010 DIGILAW 3012 (ALL)

State of U. P. v. Shakil Thakur and Others

2010-09-28

ABDUL MATEEN, YOGENDRA KUMAR SANGAL

body2010
Yogendra Kumar Sangal, J.- In Session Trial No. 137/1979, State v. Shakeel Thakur and 13 others. VIth learned Additional Session Judge, Barabanki vide order date 31.7.1980 has acquitted all the accused of the case for the charges levelled against them. An appeal preferred on behalf of the Stall against this judgment and order an application to grant leave to file I appeal was moved under Section 37 (3), Cr. P.C. This application allowed vide order dated 21.7.1981 and appeal was admitted for hearing on the same day. Accused respondents have put in their appearance in the Court. During the pendency of the appeal, this Court received report that one of the respondents Chhote Lal had expired hence orders for abatement of appeal against him already passed. 2. Facts of the case briefly stated as under: An F.I.R. was lodged by one Malik Ram of village Pansara. P. S. Patranga, district Barabanki at P.S. concerned with the averments' that in the "gona" ceremony of his younger brother his sister Yashodhara alongwith her son Ramanand aged 20 years came at his house. Ramanand was having illicit relation with one Shiv Kumari (Shiv Kumara) daughter of Ram Abhilekh of village Patranga. One Shakeel Thakur of village Belkhara was also having ill-eyes on Shiv Kumari and he wanted to keep her with him. Shakeel Thakur was annoyed with Ramanand. On 16.3.1979 at about 3.00 p.m., when Ramanand was returning to his house, Shiv Kumari met him in the lane of the village. Shakeel Thakur alongwith Ali Razza alias Betharma and Ishtiyak came there and they caught hold Ramanand and Shiv Kumari in the lane near the tubewell and started beating them with "lathis" and "dandas". Witnesses Ramphal and Baldeo saw the occurrence. Shiv Kumari and Ramanand were brought near the "Neem Tree" of Mohan resident of the same village where Ramanand was hanged with the branch of the tree with the help of rope and they both, i.e., Ramanand and Shiv 'Kumari were again beaten there. Rest accused Chhedi, Ram Pher, Chhote Lal, Banwari, Dhanpat, Nirdhun, Ram Abhilekh, Ram Tilak, Shiv Sharan, Dulare and Lalta having "lathis" and "dandas" in their hands also reached there and they started to beat Ramanand. Swamideen and Kalideen alongwith other villagers reached there and they objected their "mar-peet", but they were rebuked and chased by the accused persons. Rest accused Chhedi, Ram Pher, Chhote Lal, Banwari, Dhanpat, Nirdhun, Ram Abhilekh, Ram Tilak, Shiv Sharan, Dulare and Lalta having "lathis" and "dandas" in their hands also reached there and they started to beat Ramanand. Swamideen and Kalideen alongwith other villagers reached there and they objected their "mar-peet", but they were rebuked and chased by the accused persons. Shakeel Thakur had expressed his intention there to kill Ramanand and threw his body in the "Ghaghra Riuer". Ramanand and Shiv Kumari then brought at the bank of "Ghaghra River". In the way. Shakeel Thakur had forcibly taken sickle from one Smt. Indrani afias Chhutka who was working in her field. With the help of sickle, he committed murder of Ramanand and threw his body into "Ghaghra River". This incident was witnessed by Ram Samujh, Mithu and Ram Nath, etc. Thereafter, they have taken away Shiv Kumari towards East on the bank of river. In F.I.R. it was also apprehended by the informant that accused persons might have committed murder of Shiv Kumari also. In the next day morning, he reported the matter to the police. On his oral information, a case was registered under crime No. 33 under Sections 147. 323. 302 and 201, I.P.C. against all the 14 accused persons. Investigation of the case was started. During the course of investigation, murder of Shiv Kumari was also reported to the Investigating Officer. After completing the investigation, he submitted the charge-sheet against all the 14 accused persons named in the F.I.R. Learned Magistrate after taking cognizance in the matter, committed the case to the Court of Session. 3. Accused persons were charged to face the trial for the offences under Section 302, I.P.C. etc., but they have pleaded not guilty and claimed their trial. 4. On behalf of the prosecution, P.W. 1 Malik Ram, who lodged the F.I.R. (not the eye-witness); P.W. 2 Baldeo eye-witness; P.W. 3 Yashodhara another eye-witness and mother of Ramanand deceased; P.W. 4 Kalideen eye-witness; P.W. 5 Smt. Indrani witness of the fact that Shakeel Thakur had taken away sickle from her forcibly; P.W. 6 Ram Samujh and P.W. 7 Bhagirath another eye-witnesses of the occurrence were examined. P.W. 8 Head Constable Surendra Singh, who proved the chik report Exhibit-Ka-1, entry in G.D. Exhibit-Ka-3 about registration of the case. P.W. 8 Head Constable Surendra Singh, who proved the chik report Exhibit-Ka-1, entry in G.D. Exhibit-Ka-3 about registration of the case. He also proved G.D. entry about the facts that articles brought in sealed cover from the place of occurrence and also proved another entry of G.D. Exhibit-Ka-5 about sending these articles to "malkhana". P.W. 9 Ram Narayan Misra Investigating Officer of the case who proved the site plan. Jard recovery of broken bangles, fard recovery of "chhapal" and "towel", fard about collecting the mud blood-stained sample and also charge-sheet alongwith report of chemical examiner available on the record. 5. In their statement under Section 313, Cr. P.C. all the accused have denied the correctness of the prosecution case and evidence. Shakeel Thakur further stated that in the election of Sitaram and Bohare he supported Sitaram while the other party of ahirs have supported Bohare. This was the cause af enmical terms between two parties of the village. Other accused have stated their false implication due to enmity. No evidence either oral or documentary adduced on behalf of accused. 6. After hearing both the parties' counsels and perusing the record, learned Session Judge not found guilty to all the accused persons of the charges levelled against them and acquitted them. Aggrieved by this judgment and order, this appeal has been preferred on behalf of the State. 7. Heard learned counsel for the State Sri O. P. Srivastava and Sri Salil Srivastava on behalf of the accused respondents and perused the record. 8. Learned counsel for the State has challenged the findings of the trial court saying that findings of the learned Session Judge are perverse and shocking to the conscience. Acquittal of the accused persons was illegal and against the evidence on the record. Learned Session Judge has erred in rejecting the evidence of the eye-witnesses. Motive for committing the offence was given in the F.I.R. Evidence of the prosecution witnesses on many points have been lightly brushed aside which requires re-appreciation by this Court. There was no reason to disbelieve the testimonies of the eye-witnesses of the occurrence. It is a case of double murder and dead body of the victims were thrown in the river with an intention to disappear the evidence of offence to screen themselves from the punishment. 9. There was no reason to disbelieve the testimonies of the eye-witnesses of the occurrence. It is a case of double murder and dead body of the victims were thrown in the river with an intention to disappear the evidence of offence to screen themselves from the punishment. 9. On the other hand, learned counsel for the respondents-accused had supported the correctness of the judgment of the learned trial court and argued that sufficient and detailed reasons are given by the learned trial court and evidence available on the record was properly scrutinized. From the evidence available on the record charges framed against the accused persons were not established beyond reasonable doubt and accused persons have been rightly acquitted, 10. As per prosecution case Ramanand was having illicit relation with Shiv Kumari and accused Shakeel Thakur was having ill-eyes on her and he wanted to keep her with him, but as she was not amenable to his advise so with the help of other accused persons he has committed murder of both of them and dead body of both have been thrown in the "Ghaghra River". Accused persons have denied the correctness of this prosecution case and claimed their false implication in the matter. Undisputedly, two accused in the array of the accused, i.e., Ram Abhilekh and Shiv Saran are natural father and real brother of deceased Shiv Kumari. Case of the prosecution itself is that Shakeel Thakur was having ill-eyes on Shiv Kumari and he was intending to keep her with him but as she was in love with Ramanand and not paying heed towards Shakeel Thakur. so Shakeel Thakur with tire help of other accused (including father and brother of Shiv Kumari) beaten them and later on committed their murder. Learned counsel for the accused argued that it is not even thinkable and also not believable that they both, i.e.. father and brother of Shiv Kumari will knowingly help Shakeel Thakur in his these misdeeds and also they both will go up to this extent that they will caught her and permit Shakeel Thakur to give deadly blow on her neck and stomach by sharp edged weapon, i.e.. "hansiya and will also help him in throwing her dead body in the river to disappear the evidence of offence. This argument of learned counsel for the accused cannot be said without merit. "hansiya and will also help him in throwing her dead body in the river to disappear the evidence of offence. This argument of learned counsel for the accused cannot be said without merit. These near close relatives, i.e., father and brother of Shiv Kumari will force her in such prostitution and will help Shakeel Thakur in committing her murder is not believable story of the prosecution. As per the case of prosecution Shakeel Thakur was intending to commit murder of Ramanand. He and his associates were having "lathis" and "dandas" in their hands. They firstly have beaten him in the "galiyara" of the village, then they hanged him on the "neem-tree" near the house of Mohan in the village and again beaten him in the same position of hanging and then they took him on the bank of river where some of them have caught him and Shakeel Thakur had given blow of sickle on his neck and stomach and committed his murder and then threw his dead body in the river. What could be the cause of such brutal murder of Ramanand, it is not clear from the evidence on record. If he was intending to commit his murder, he could have done so in the first attempt and at the most in the second attempt when he was hanged on the "Neem-Tree". He will unnecessarily takes such long time in day hours and will create evidence against him and took him on the bank of river and then he will commit murder there and throw the body, it is also something improbable in the story of the prosecution. Shakeel Thakur brought sickle snatching it from a lady Indrani afias Chhuteke who was working in nearby field and after using the same in committing the murder of both these victims there, he had returned sickle through Sukhaan said by P.W. 5 Smt. Indrani in her on oath statement. After committing the offence of double murder in place of throwing the sickle the weapon of the offence, in river, he will return the same to that lady to whom its belong, although he is throwing the dead bodies of both the victims to disappear the evidence, it is again unnatural and improbable. After committing the offence of double murder in place of throwing the sickle the weapon of the offence, in river, he will return the same to that lady to whom its belong, although he is throwing the dead bodies of both the victims to disappear the evidence, it is again unnatural and improbable. The lady to whom the sickle belongs herself will hand-over the sickle to Investigating Officer next day and Shakeel Thakur will permit her to do so, so that it may be produced in evidence against him, it is again unnaturality and improbability in the prosecution story. 11. Towel and Slipper belong to Ramanand as per the version of the Investigating Officer were recovered by him on next day during the course of investigation from the bank of river. Again this is something unnatural that although Shakeel Thakur is throwing dead body of both the victims in the river but he is leaving these two articles at the bank of river, so that the same may be produced against him in evidence, it is not believable. There is no believable evidence on record also to show that both these articles belonged to Ramanand. He was hanged on the "Neem-Tree" and beaten there in the same position then brought at the bank f of river in between opportunity will be given to him to wear slipper and towel and he will do so himself in the facts and circumstances of the case and again both these articles will be left at the bank of river by those persons who have taken away his body and thrown the same in the river, it is again improbability and unnaturality in the prosecution case. 12. When it was decided by Shakeel Thakur and his associates that murder of both is to be done then after committing the murder of Ramanand and throwing his body in the river, Shakeel Thakur will took Shiv Kumari upto some distance on the bank of river and then again return back at the same place where the murder of Ramanand was committed and then commit her murder and throw away her body in the river at the same place, this is again unnaturality in the story of the prosecution. Why at the time of murder of Ramanand side by side she was also not done to death, it is again not clear from the story of the prosecution. 13. Learned counsel for the accused argued that there are contradictory statement of witnesses on the point that Shiv Kumari was beaten at hanging place of Ramanand or not. During the course of her "mar-peet", bangles of Shiv Kumari were broken and fell down at that place where Ramanand was hanged said recovered by Investigating Officer on next day. P.W. 1 Malik Ram who has no relation with Shiv Kumari had identified these pieces were of Bangl of Shiv Kumari. It is very important here to say that this witness P.W. 1 Malik Ram is not eye-witness of this occurrence. His statement is based only on hearsay evidence. How he could identify that pieces are of the bangles of Shiv Kumari when it was inquired from him, he had replied that he can identify the bangles of all ladies of the village. He admits that there are 400 to 500 houses in the village. It is beyond imagination that a person who has no relation with a lady by seeing the broken pieces of bangles could identify that these pieces of bangles belongs to that particular lady. It is in the evidence that this type of bangles are generally used by the ladies in the village. He was not present when Shiv Kumari was beaten, her bangles were also broken and these were fell down at that place of occurrence. Whether these pieces of bangles are the same which was collected by the Investigating Officer from the spot, it is also not proved from his statement because, it is not clear that these were brought before him in sealed bundle in the Court and the same was opened in the Court in his presence. This all shows that this was a manufactured evidence during the course of investigation of the case. 14. Both the victims were knowing that they are being taken for committing their murder. No one amongst the accused was having any deadly weapon like firearm or sharp edged weapon with them as per own case of prosecution. Ramanand was aged 20 years quite young and Shiv Kumari was aged about 16 to 17 years at the time of occurrence as it comes out from the record. No one amongst the accused was having any deadly weapon like firearm or sharp edged weapon with them as per own case of prosecution. Ramanand was aged 20 years quite young and Shiv Kumari was aged about 16 to 17 years at the time of occurrence as it comes out from the record. Several villagers and witnesses were also assembled at all the three places of occurrence. None amongst both of victims even will try to escape from the clutches of accused persons and no villager even the father and brother of Shiv Kumari will take any steps to save them, it is very unnatural part of the story of the prosecution. 15. Dead body of both the victims of the occurrence were not available. Learned trial court had observed in the impugned order after going through the record that no serious efforts were made by the Investigating Officer to get searched out the body of these victims. It was held by trial court in Para 16 that: "There is a distinct possibility in view of the concocted evidence on record that they may be enjoying their lifes at some other place. Parents of Ramanand and Shiv Kumari might not be happy with their intimacy and so that they had no occasion to intimate them about their whereabouts." 16. The unnaturalities and improbabilities shown in the findings of the trial court not sufficiently explained by the learned Additional Government Advocate during the course of argument. P.W. 6 Ram Samujh had not stated the presence of the accused Chhedi and another witness Bhagirath P.W. 7 not stated the presence of two accused Dulare and Faran and added the presence of one Mewalal among the associates of Shakeel Thakur, it is clear from their statements. Absence in their statements of the accused create doubt about their presence on the spot. P.W. 2 Baldeo himself stated in his on oath statement that his statement was not recorded by the Investigating Officer during the course of investigation and what he has stated about the occurrence he stated in the Court first time. As per prosecution case, he is also an eye­witness of the occurrence. Why his statement was not recorded during the course of Investigation, it is not explained on behalf of the prosecution. 17. It is said that occurrence has taken at about 3.00 p.m. on 16.3.1979. As per prosecution case, he is also an eye­witness of the occurrence. Why his statement was not recorded during the course of Investigation, it is not explained on behalf of the prosecution. 17. It is said that occurrence has taken at about 3.00 p.m. on 16.3.1979. In the same evening all the facts relating to the occurrence were brought to the notice of the informant and mother of the deceased Ramanand, but the F.I.R. of the occurrence was lodged on the next day in the morning at about 8.30 a.m. while the distance of police station shown in the chik report is only six and a half kilometers. There is inordinate and unexplained delay in lodging F.I.R. on behalf of the prosecution. As per prosecution case, murder of Shiv Kumari was also committed in the same evening on 16.3.1979 in the presence of witnesses out of them one is P.W. 6 Ram Samujh. The house of this witness is only at a distance of 8 to 10 steps from the house of P.W. 1 Malik Ram but he will not inform Malik Ram about the murder of Shiv Kumari in the same evening, it is not believable from the story of the prosecution, but the fact of murder of Shiv Kumari in so many words is not there in the F.I.R. which was lodged in the morning on 17.3.1979 at about 8.30 a.m. Several other material discrepancies unbelievableness in the statement of the witnesses, self-contradiction in the statement of the witnesses, material contradiction in their inter-se statements and also from their statement under Section 161, Cr. P.C. are there and some of them are taken into consideration by the learned trial court in disbelieving the prosecution case. There are two parties in the village one of Ahirs and other is Pasis. One is headed by Shakeel Thakur and village Pradhan Sita Ram and other by Boharn. Both the parties were not at normal terms, it is also there in the evidence. Accused side favours the then Pradhan Sita Ram while the prosecution side supports Boharn, it is also evidence by the prosecution. This Boharn is a person who always remain present alongwith Investigating Officer when he visited the spot on the next day of the occurrence and his signatures are there almost on all the memo's prepared by the Investigating Officer. Accused side favours the then Pradhan Sita Ram while the prosecution side supports Boharn, it is also evidence by the prosecution. This Boharn is a person who always remain present alongwith Investigating Officer when he visited the spot on the next day of the occurrence and his signatures are there almost on all the memo's prepared by the Investigating Officer. Dead bodies of both the victims were not found, there is no other evidence on record to support the oral evidence of the prosecution that both of them are now dead. 18. Learned trial court had given detailed and sufficient reasons as to why the statement of prosecution witnesses are not believable. Material lacuna in the prosecution case also in investigation are shown and unbelievableness of the story of the prosecution held by the trial court. It is further held that from the scrutiny of the evidence adduced by the prosecution, it is not established that such occurrence has taken place and further held that it is not proved that both Ramanand and Shiv Kumari have died. It is further held that array of the accused persons was most illogical looking to the facts of the prosecution story. In Para 18 concluding paragraphs of the judgment, learned trial court held that "the prosecution has failed to prove that Ramanand and Shiv Kumari had any illicit intimacy. Prosecution has further failed to prove that Ramanand and Shiv Kumari have been beaten by the accused on 16.3.1979 at any place in village Pansara. Prosecution has also failed to prove that accused murdered Ramanand and Shiv Kumari on that day near the Ghagara River in the village Pansara." The Court ultimately concluded that evidence was against the normal human behaviour and could not be deemed to be trustworthy. The Court also held that investigation in the matter was shoddy and the police had not taken proper steps to search out the dead bodies of both the victims. Trial court by a very cogent and very detailed judgment considered every aspect of the matter in acquitting the accused. 19. The Court also held that investigation in the matter was shoddy and the police had not taken proper steps to search out the dead bodies of both the victims. Trial court by a very cogent and very detailed judgment considered every aspect of the matter in acquitting the accused. 19. In arriving the aforesaid conclusion, learned Session Judge had made critical evolution of the statement of witnesses of fact examined on behalf of the prosecution and given details of material contradictions and improvements in the statement of witnesses and also explained how these affects the prosecution case adversely and having crucial bearing on the veracity of the version given by them. 20. We do not find any compelling and substantial reason to interfere with the judgment of acquittal. It is not the case where it can be said that judgment is unreasonable or a case in which relevant and convincing material have been eliminated in the process of appreciation. Reasonings given by the trial court in passing the judgment of acquittal are seen carefully, such reasonings are consistent with the evidence. As a matter of prudence the court of appeal should not interfere with the order of acquittal by re-appreciating the evidence and taking some other view. Reasonings given by the learned trial court are not contrary to the weight of evidence. It is established law that generally the order of acquittal should not be interfered with because the presumption of innocence of the accused is further strengthened by their acquittal by the trial court. If two views are possible on the evidence adduced in the case one to the guilt of the accused and other to their innocence, the view which is favourable to the accused should be adopted. It is established law as held by the Court in Main Pal v. State, 2004 Cr LJ 2036. Findings of the trial court which has the advantage of seeing demeanour the witnesses and hearing their evidence can be reversed only for substantial and compelling reason. It was so held by the Hon'ble Apex Court in Suraj Pal v. State, AIR 1952 SC 52 . It is under these circumstance, we are also compelled not to interfere with the conclusion drawn by the learned Session Judge. No miscarriage of justice was done by the learned Session Judge in acquitting the accused-persons. It was so held by the Hon'ble Apex Court in Suraj Pal v. State, AIR 1952 SC 52 . It is under these circumstance, we are also compelled not to interfere with the conclusion drawn by the learned Session Judge. No miscarriage of justice was done by the learned Session Judge in acquitting the accused-persons. Hon'ble Apex Court also held in the case of State of Rajasthan v. Naresh alias Ram Naresh, 2010 Cr LJ 1928, that "order of acquittal should not be lightly interfered with even if Court believes that there is some evidence pointing out finger towards accused". 21. In the facts and circumstances of the case and taking into consideration the judgment pronounced by the learned trial court, no interference by this Court is required in the matter in appeal. Appeal has no force and liable to be dismissed. Accordingly, appeal is hereby dismissed.