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2012 DIGILAW 130 (ALL)

ONKAR SINGH v. STATE OF U. P.

2012-01-13

ASHOK SRIVASTAVA, DHARNIDHAR JHA

body2012
JUDGMENT By the Court.—The Present appeal was initially filed by three appellants to bring in to question judgment of conviction rendered by learned Vth Additional Sessions Judge, Budaun on 24 March, 1982 in Sessions Trial No. 239 of 1981. However, appellant No. 3 Chunni son of Hakim Singh died during the pendency of the present appeal and we have passed the order on abatement of his appeal today itself, as a result of which the appeal survives only on behalf of appellants Onkar Singh and Nathoo both sons of Girwar Singh who were found guilty of committing offence under Section 302/34 I.P.C. and each of them was directed to suffer rigorous imprisonment for life. 2. The prosecution case is contained in the written report of PW-1 Smt. Bhoopa who was the wife of the deceased Umed Singh. It was stated that at about 7.00 a.m. on the 17th February, 1981 the deceased with his wife (PW-1) and daughter (PW-2) proceeded to their plot which was situated by the side of the field of Girwar. When they reached on the chak road by the side of the field of one Girwar, three accused persons, namely, Onkar Singh, Nathoo and Chunni emerged from the Arhar field armed with lathi. They caught hold of the deceased Umed Singh and took him forcibly by dragging into the Arhar field. 3. PW-1 stated that she and her daughter shouted as a result of which Daal Singh son of Sibbu Singh and Bhagwan Singh son of Chooraman Singh as also others reached at the place of occurrence and saw whole of incident when the deceased was assaulted by lathi by the accused persons and, subsequently, by putting lathi across his throat, they strangulated him to death. After fulfilling their mission, the accused persons ran away towards south. 4. As regards the delayed lodging of the report, the informant stated in Ext. Ka-1 that her only son was residing at Bareilly where he was employed somewhere and she waited for him but after her son had not reached, she went to the police station and lodged a report. 5. 4. As regards the delayed lodging of the report, the informant stated in Ext. Ka-1 that her only son was residing at Bareilly where he was employed somewhere and she waited for him but after her son had not reached, she went to the police station and lodged a report. 5. As regards the motive for commission of the offence, it was stated by the informant that there had been some litigation before the Consolidation authorities in respect of a plot in between appellant Chunni and father of remaining two appellants on the one hand and her husband on the other hand and that decision in the litigation had gone in favour of her husband and on that account, they were treating the deceased as their enemy and was always on a look out to eliminate him. 6. It appears from the evidence of PW-3, S.I. Swadeshpal Singh that on receipt of the written report Ext. Ka-1, the first information report of the case Ext. Ka-2 was drawn up by Head Moharrir Shamshad Ahmad and the investigation of was taken up by PW-3 himself during which course he reached at the place of occurrence and recorded the statement of the first informant and her daughter Munni (PW-2). Thereafter he prepared inquest upon the dead body on 18.2.1981 in the presence of the witnesses and prepared the inquest report, Ext. Ka-4. He sealed the dead body after preparing relevant records and handed over the challan for carrying the same to the hospital to constables Ram Singh and Tejpal Singh. During holding of the inquest upon the dead body, PW-3 found one little container (dibia) which was used for keeping tobacco, a railway ticket authorising travel from Bareilly to Batroi as also a currency note of Rs. 2 denomination from the pocket of the shirt which was found on the dead body. Accordingly, the memo for search and recovery of small container (dibia) and the travelling ticket issued by the Railways, was prepared and that appear marked Ext.K-10. He thereafter prepared a sketch map of the place of occurrence Ext.Ka-11 and set out on the search of the accused persons during which course, he arrested the accused appellant Nathoo, whose defence statement was also recorded by him. After completing investigation, PW-3 sent the three accused persons up for trial. 7. He thereafter prepared a sketch map of the place of occurrence Ext.Ka-11 and set out on the search of the accused persons during which course, he arrested the accused appellant Nathoo, whose defence statement was also recorded by him. After completing investigation, PW-3 sent the three accused persons up for trial. 7. The defence of the appellants was that the deceased had travelled from Bareilly to Batroi on a valid travelling ticket issued by the railways. He was a history sheeter and while he was coming to his village and was going to his house, he was probably picked up by his enemies, who killed him during the night intervening 16/17 February, 1981 and as soon as the dead body was detected, suspecting the present set of appellants as the perpetrators of the crime, Ext. Ka-1 the written report was lodged implicating them falsely. 8. In support of the charges, the prosecution examined as many as four witnesses. We have already pointed out that PW-1 was the informant and wife of the deceased whereas PW-2 Munni happened to be 9-year-old-daughter of his. PW-3, we have just noted, was the investigating officer of the case and PW-4 Dr. U.P. Bhatnagar had held post mortem examination on 18-2-1981 at about 4.00 p.m. on the dead body of the deceased and had issued Ext. Ka-13. 9. It was contended by Sri Samit Gopal, learned counsel appearing on behalf of the appellant, that the evidence of PW-1 and that of PW-2 is so conflicting and contradictory to each other on the most material part of the case that they could not be treated to have really seen the occurrence. It was further contended that the deceased was probably picked up by his enemies in the night itself while he was coming from Bitroi and he was taken into the Arhar field where he was done to death. This was the reason that both Pws. 1 and 2 who had claimed themselves to be eye-witnesses were making completely contradictory statements during trial on some material points. As regards the creditability of PW-2 Munni, a child of about 9 years, attention of the Court was drawn to some of the aspects of her evidence to submit that she was not a competent witness and appears tutored. 1 and 2 who had claimed themselves to be eye-witnesses were making completely contradictory statements during trial on some material points. As regards the creditability of PW-2 Munni, a child of about 9 years, attention of the Court was drawn to some of the aspects of her evidence to submit that she was not a competent witness and appears tutored. Attention of the Court was also drawn to the evidence of the investigating officer and in that context to the evidence of PWs. 1 and 2 to submit that the manner of occurrence which was narrated by both the eye-witnesses does not get support from the objective findings of the investigating officer and the opinion of PW-4 Dr. U.P. Bhartagar raises the probability that the deceased might have been murdered in the night intervening 16/17th February, 1981. 10. Sri K. N. Bajpai, the learned AGA who appeared on behalf of the State, submitted that credibility of the witnesses has to be judged also considering the background they hail from and the Court should start from the assumption that they were real eye-witnesses and must grant some allowances to their rusticity and other such aspects of their background. It was contended that the medical opinion was only an opinion and that was never exact and in that light it may not be proper to throw out whole of the prosecution charges merely considering evidence of PW-4. Likewise, as regards the non finding of trampling mark or finding of the broken Arhar plants at the place where the dead body was found, Sri Bajpai submitted that the investigating officer might have missed to record the findings because on account of murder having been detected at the scene, quite good number of persons could have converged upon the scene of occurrence and must have created foot marks all around in the field carrying standing wheat or other crops. As such, it cannot be read as an infirmity or deficiency in the prosecution case. Sri Bajpai was also contending that the evidence indicated that it was not cohesive and thickly grown up Rabi crop, rather the growth was sparse and the plants were few grown and far weak. Sri Bajpai was attempting to persuade us to grant credence to the evidence of PWs. 1 and 2 to uphold the conviction. 11. Sri Bajpai was also contending that the evidence indicated that it was not cohesive and thickly grown up Rabi crop, rather the growth was sparse and the plants were few grown and far weak. Sri Bajpai was attempting to persuade us to grant credence to the evidence of PWs. 1 and 2 to uphold the conviction. 11. The claim of PW-1 was that she a longwith PW-2 was accompanying her husband to a field. She has stated in quite some details as to what was the purpose of accompanying the deceased upto the field. The witness has stated that Bajra crop had been harvested and some part of the harvested plant had been put into bundles and stacked in side the field and some part of it was still scattered, after being harvested and, as such, they were required to create the bundles of crop to stack them appropriately. When we were considering her evidence in cross-examination what came into our notice was that the witness was claiming some short of dual Status. She was, on the one hand, stating to the Court that she was a pardanashin lady who had seldom ventured out from her house but, on the other, she was pointing out to the Court that she was venturing out in that particular morning with her husband to go to Bajra field for properly securing the harvested crop. The claim of the lady that she was pardanashin may not be credible for one reason and that appears from her own admission which is recorded in paragraph 11 of her evidence. She was put certain questions about relationships of different persons including those in the family of the appellants and those relationship were in respect of the daughters of those families also. She was more clearly and promptly pointing out as to who was the daughter of whom as also whose son was who, especially the those of the three of the appellants. She appears correctly pointing out the relationships between the daughters and mothers also. We could, as to elucidate our point, point out that Maharani was the daughter of Ganga Devi who was the wife of Girvar Singh, and that Maharani was the sister of the appellants Onkar Singh and Nathoo Singh. She appears correctly pointing out the relationships between the daughters and mothers also. We could, as to elucidate our point, point out that Maharani was the daughter of Ganga Devi who was the wife of Girvar Singh, and that Maharani was the sister of the appellants Onkar Singh and Nathoo Singh. Not only that one of the daughters of the family, i.e., Renuka was married to the deceased appellant Chunni and that particular appellant migrated to the same place where he had settled down with her family and, probably, there was some litigation also which was fought by the appellant Chunni with some others. Not only that when we considered the evidence of PW-1 in paragraph 10, we could come across the fact that not only the lady was quite acquainted with the relationship of different appellants and their daughters and their associated to their respective mothers, but she was also acquainted with the fields around her chak. In paragraph 10, PW-1 has clearly described the surrounding chaks of her own chaks and also appears quite acquainted with the knowledge of litigation which was fought between the appellant Chunni on the one hand and her husband on the other. During that course she has stated that Chunni was joined by Onkar and it was suggested to her that the appellants Onkar Singh and Nathoo have nothing to do with that particular litigation. 12. We are not concerned about the investigation but what we are wanting to propound was as to what was the background of the lady. She appears a lady who could not venture out of her house ever but when we considered her evidence in more depth, what we found is that she may not be an eye-witness. The first reason is that the lady was telling before the trial Court that three accused persons caught hold of her husband and they, thereafter, dragged him into the Arhar fields. The investigating officer did not find any dragging mark in any of the field. The lady was pointing out to the Court that no Arhar plant was broken and further that the place where Umed Singh was murdered was devoid of any plant and that there was vacuum in the field on account of not germination of any plant. When we looked to the site plan, i.e. Ext. The lady was pointing out to the Court that no Arhar plant was broken and further that the place where Umed Singh was murdered was devoid of any plant and that there was vacuum in the field on account of not germination of any plant. When we looked to the site plan, i.e. Ext. Ka-11, we found that the place where the deceased was murdered has been shown by ‘’B’ and the description has been given showing existence of the broken plants of Arhar around that place. We reasonably accept and expect that if a man was assaulted, as would appear from the evidence of PW-4, then he must have struggled to wriggle himself out of the clutches of the accused and to have attempted to run away to safely. That attempt of wriggling out and the struggle on that must have caused breaking of a few plants around the field. This is one reason. 13. The other reason that we find coming out from the evidence of PW-1 is that she had, in quite some details, pointed out about the bleeding which had occurred from the mouth of the deceased. This appears in paragraph 16 of the deposition sheet of PW-1 which appears at page 16 of the paper book. We find that the lady stated that the deceased bled both through his nostrils and from his mouth and all of his cloths were soaked in blood. But, what is curious for us is that her daughter, PW-2 was not supporting her. PW-2 was stating that her father did not bleed. Likewise, the evidence of PW-3, the investigating officer also negates the evidence of PW-1 as he does not appear to have found any blood at point ‘’B’, the place where the dead body was found. This was the reason that he did not seize any blood stained cloth or earth either from the dead body or from the place of occurrence. The evidence of PW-1 further indicates that the deceased was brutally assaulted. We do not have any doubt that Umed Singh was assaulted as PW-4 was finding as many as 6 injuries caused by hard and blunt substance which included the fatal wound which was the wound caused by asphyxiation of the deceased. But the period which has been stated by the lady could not carry weight with us. We do not have any doubt that Umed Singh was assaulted as PW-4 was finding as many as 6 injuries caused by hard and blunt substance which included the fatal wound which was the wound caused by asphyxiation of the deceased. But the period which has been stated by the lady could not carry weight with us. The period appears stated in the same paragraph 16. Not only that the manner of occurrence which appear stated by PW-1 in the same paragraph 16 of her deposition also does not carry weight with us because we are of the view that the man was definitely strangulated and before he had been strangulated, he was given some blows with lathi on different parts of the body so as to completely immobilising him. That would hardly had taken more than a couple of minutes or less than that time. 14. The other inference which appears from the evidence of PW-1 is that the man must have been assaulted while being dragged into the field. We do not find any clarity coming out of the prosecution evidence after we had considered the evidence of PWs. 1 and 2. Moreover the evidence of PW-1 was contradicting her own evidence when she was making statement in Court on the manner by which the deceased was strangulated to death. She was stating that the appellants Onkar Singh and Chunni both put the lathi across the throat of the man and thereafter pressed it at both of its ends to strangulate him. What appears to us from her cross-examination in paragraph 16 is that she had given a different manner of pressing the lathi before the police by stating that two appellants had mounted over the lathi and then had killed the deceased. 15. So far as the evidence of PW-2 is concerned, she was just about 8 years on the date of occurrence. On the day when she was deposing before the Court, she was about 9 years. Learned trial Court had put certain question and had, thereafter, recorded his satisfaction that it was fit that the oath be administered to her. Administering oath to a witness does not purify him or her and also does not create a situation of certainty that the witness might not have been tutored or that she or he may not be speaking a lie. Administering oath to a witness does not purify him or her and also does not create a situation of certainty that the witness might not have been tutored or that she or he may not be speaking a lie. We very often find that witnesses who are administering oath are found completely not reliable. So far as evidence of PW.2 is concerned we take out only one set of her evidence appearing in paragraph 3 when she was stating that she was not acquainted with the geographical direction but she definitely knew that her father was dragged into south. If this could be the evidence of the witnesses with further addition of the facts, it indicated that she was really not acquainted with the directions. We could start from assumption that she was definitely tutored. Her evidence we have referred in some previous paras while considering the evidence of PW-1 so as to pointing out the contrary situations which were appearing from the depositions of two witnesses. Even at the point of repetition, we simply point out that when PW-1 was speaking about the bleeding from the nostrils and mouth of the deceased, PW-2 was telling the Court that the deceased did not bleed. 16. Similarly, PW-2 in paragraph 6 also stated that no Arhar plant had been broken on account of struggle or fall of the deceased on the ground and thereafter the deceased had been strangulated. So far as the manner of strangulation is concerned, she was supporting her mother but again her statement also appear similarly recorded by the police as was recorded that of PW-1 and that attention of PW-2 has been drawn in paragarph 6 which appears on page 21 of the paper book. These are some of the reasons which have alarmed us a lot to treat the witnesses trustworthy. 17. In addition to the above, what we find is that there was a delay of reporting the case of almost about 11 hours or more than that. The explanation which was given by the witness, PW-1, was that her only son, namely, Jagannath was employed in Bareilly and she waited for his arrival and as he did not come from Bareilly, she started all alone for lodging the report. There were family members there who have been named as witnesses, i.e., Bhagwan Singh and Daal Singh. The explanation which was given by the witness, PW-1, was that her only son, namely, Jagannath was employed in Bareilly and she waited for his arrival and as he did not come from Bareilly, she started all alone for lodging the report. There were family members there who have been named as witnesses, i.e., Bhagwan Singh and Daal Singh. This has come in the evidence of Pws. 1 and 2 that they were close family members of PW-1. Not only that, Narottam Singh had also arrived at the scene of occurrence and undisputedly had scribed the written report Ext. Ka-1. But, curiously enough none of her family members, not even Narottam Singh, was to accompany her to the police station. She was a lady who was deeply in distress and it was expected that some male member of the society or her family should have accompanied her to the police station. Her story on reaching the police station and coming back from there also appears not satisfactory. 18. In addition to the above, what we find is that the investing officer of the case was finding valid railway ticket from the pocket of the shirt of the deceased. Two DWs. were examined who were Railway officials and who had produced the records regarding the issuance of that particular ticket and as per their evidence, ticket No. 04272 was issued on 16.2.1981 in between 15 hrs. 23 hrs. The ticket was issued for travelling from Bareilly to Batroi. The deceased had definitely travelled and he appears a history sheeter though the fact has been denied by PW-1, her wife, in paragraph 13 of her cross-examination which fact appears probabilised by the evidence of PW-3 S.I. Swadeshpal. He has deposed in the first line of his cross-examination that the deceased was a history-sheeter. We assume that while the deceased was coming from Batroi and was proceeding towards his village through that particular chak road, some persons who could not be unknown, had probably caught him and had done him to death. This could probably had happened some times in the night intervening 16th and 17th February, 1981 which time appears in consonance with the opinion of PW-4 Dr. This could probably had happened some times in the night intervening 16th and 17th February, 1981 which time appears in consonance with the opinion of PW-4 Dr. U.P. Bhatnagar who had given a very sound reason and opinion by stating that as faecal matter was still found lying in the large intestine of the deceased, it indicated that he had not eased up just after the end of night and that was probably the time of occurrence also. 19. These are some of the reasons upon which we find the accused appellants deserving to be acquitted on being given benefit of doubt and on that benefit of doubt we acquit to them. 20. The appeal is allowed. The judgment of conviction and the order of sentence passed upon the appellants are hereby set aside. We have already noted that the appellant Chunni is dead. As regards appellants Onkar Singh and Nathoo, they are on bail and shall stand discharged of the liability of their bonds. ——————