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2014 DIGILAW 70 (ALL)

Khushali v. State of U. P. & Another

2014-01-08

AMAR SARAN, SUNITA AGARWAL

body2014
Amar Saran, Sunita Agarwal,JJ 1. The criminal appeal arises from judgment of the Sessions Judge, Budaun dated 21.12.1982. The appellant has been convicted and sentenced to imprisonment for life under Section 302/34 IPC and 4 Years' Rigorous Imprisonment under Section 394 IPC. 2. We have heard Sri P.N. Misra, learned Senior Advocate for the appellant and Sri Anand Tiwari, learned AGA for the State and have perused the trial court's judgment and record. 3. The prosecution case as disclosed is that the FIR was lodged on 22.12.1980 at 2P.M. at Police Station Kotwali, Budaun by the informant Lalta Prasad regarding the incident which had taken place on 21/22.12.1980 at 12:30 A.M. The informant Lalta Prasad accompanied by Riyasat Ali, Bihari Lal and Jawahar Lal were returning after seeing a film to the house of the deceased Hardei. When they knocked at the door, four persons came out who pointed country made pistols towards the witnesses. Two of the miscreants were identified as Khushhali and Ram Bharose in the light of moon and torches . They were tenants of deceased Hardei. When the witnesses entered the house they saw Smt. Hardei, widow of Ram Swaroop tied to her cot. Her neck was tied with a 'dhoti' and her mouth was also muzzled with clothes. Her son Munna Lal's neck was also tied with a 'dhoti' and he was found dead in the adjoining room where "bhoosa" (hay) was kept. The boxes and luggage had been upturned and the 'kothari' was dug up at two places. The golden earing and 'kundal' from the ear and 'Todia' made of silver from the foot of Smt. Hardei which she used to wear were missing. 4. The FIR was registered at Police Station Kotwali. On the basis of this report lodged by Lalta Prasad (Exhibit Ka-1), the GD Entries were made by Head Moharrir Om Prakash. After registration of the case, PW 4 Sukh Pal Singh, the Investigating Officer, reached the spot. As the arrangement of light could not be done, the inquest and further proceedings were carried out the next morning. After completing the said formalities the dead bodies were taken into custody and sent for post mortem. 5. The postmortem of the deceased Smt. Hardei aged about 50 years which was conducted on 23.12.1980 at 1:30 P.M. reveals that the death had taken place one and a half days earlier. After completing the said formalities the dead bodies were taken into custody and sent for post mortem. 5. The postmortem of the deceased Smt. Hardei aged about 50 years which was conducted on 23.12.1980 at 1:30 P.M. reveals that the death had taken place one and a half days earlier. The neck was tied with a 'dhoti' and there was a ligature mark horizontally placed 4-5 cm. in length with echymosis underneath. The death was caused due to antemortem injuries. 6. The postmortem of the deceased Munna Lal aged about 19 years which was conducted on 23.12.1980 at 12:00 Noon also discloses that the death had taken place one and a half days earlier. There were multiple contusions over the whole of the front of the chest, a part of the neck and also a part of the abdomen. A cloth was tied around the neck in two or three folds. There was a knot on the right side and underneath ligature marks with echymosis were found. The said cloth which was tied around the neck was present in the hospital. The cause of death was asphyxia. 7. PW 1 Lalta Prasad was the brother-in-law of the deceased Hardei as he was married to Ganga Devi the sister of the deceased. He reiterated the version of the FIR. In his cross-examination this witness has stated that Ram Swaroop, the pre-deceased husband of the deceased Hardei had two sons, Ram Pal and the other deceased of this case Munna Lal. Before the incident Ram Pal was burnt to death. His wife had also set herself afire and committed suicide. PW 1 Lalta Prasad was making all the arrangements for Hardei after the death of her husband Ram Swaroop. He claimed that he did not know whether his visits to Hardei were resented by Kanhai, brother of Ram Swaroop or not. After the death of the deceased Hardei there was a 'marpeet' between this witness and Kanhai because Hardei had executed a will of her property in favour of her sister and he even lodged an FIR against Kanhai. In his cross-examination he stated that in the FIR he mentioned that the miscreants were armed with country made pistols but in his statement under Section 161 Cr.P.C. he attributed the weapons to only Khushali and Ram Bharose and not to any one else. 8. In his cross-examination he stated that in the FIR he mentioned that the miscreants were armed with country made pistols but in his statement under Section 161 Cr.P.C. he attributed the weapons to only Khushali and Ram Bharose and not to any one else. 8. PW 2 Riyasat has also reiterated the same version of the FIR. He claimed to know Lalta Prasad from before as he used to stitch his clothes in his tailoring shop. They had met Bihari Lal and Jawahar Lal who used to do the work of selling meat. They had decided to go to the cinema in the night at about 8 or 8:15 P.M. Thereafter as Bihari Lal had to go for some further distance to Kaboolpura to his sister's house, all the witnesses had accompanied him. It was in that background that the witnesses had reached the house and had seen the miscreants coming out from the house of the deceased who threatened them with countrymade pistols. There were four 'potlies' (bundles) in the hands of the four miscreants. They went inside the house and saw two boxes in the two rooms. He denied giving evidence on account of his closeness to Lalta Prasad. 9. PW 3 Bihari Lal said that Munna Lal was his nephew. He was brother of Hardei but claimed to have come to the house of his sister Hardei one day prior to the night when the incident took place. He had gone to Soro and when he returned at7:30 P.M. he visited the shop of Lalta Prasad where he had met Riyasat and Jawahar. Then they proceeded to see a film. When they had arrived at Kaboolpura to his sister's house it was locked from inside. They knocked but no noise came from inside. They again knocked, then the door was opened and the appellant Khushali, Ram Bharose and two unknown persons came out. Khushhali and Ram Bharose who were armed with countrymade pistols threatened them. All the four persons were carrying 'potlies'. The accused were identified in the light of moon and torches. The dead body of Hardei was lying on the cot in the 'dalan' . The neck of Hardei was tied with a 'dhoti'. In the adjoining room they saw his nephew Munna Lal lying on his stomach. All the four persons were carrying 'potlies'. The accused were identified in the light of moon and torches. The dead body of Hardei was lying on the cot in the 'dalan' . The neck of Hardei was tied with a 'dhoti'. In the adjoining room they saw his nephew Munna Lal lying on his stomach. Clothes were tied on his neck and all the properties were stolen and boxes and luggage were upturned. At two places pits were dug. He lodged the FIR at the police station. In his cross-examination he stated that Ganga Devi was the younger sister of Hardei who was married with Lalta Prasad about 20 years earlier. In the 'marpeet' between Kanhai and Lalta Prasad the police had submitted a Final Report but Lalta Prasad lodged a complaint against Kanhai. Before going to the cinema he had not gone to Hardei's house. 10. Learned counsel for the appellant submits that the only circumstance for connecting the appellant with this offence is of the appellant and the other three miscreants leaving the house when the door was knocked at and the other witnesses arrived there. The arrival of witnesses at that time was improbable. Nothing has been recovered from the custody of the appellant or Ram Bharose who subsequently absconded due to fear of being falsely implicated in the case as they were poor tenants in Hardei's house. Khushali and Ram Bharose absconded for 8-9 days during trial. Their abscondance does not corroborate their participation in the incident. Even the names of the other two accused were never disclosed nor were they identified. The weapons with which the accused were armed were not mentioned. It was further argued that in all likelihood it was Lalta Prasad who had committed the murder as Lalta Prasad admitted in his cross-examination that Smt. Hardei had made a will of her property which was inherited from her husband Ram Swaroop, in favour of Lalta Prasad's wife Ganga Devi. This was resented by Kanhai, brother of Ram Swaroop. The execution of the said will is highly improbable as Munna Lal son of Hardei was alive at that time and there was no reason to execute a will by her in favour of Ganga Devi, depriving her only son of the property of his father. 11. This was resented by Kanhai, brother of Ram Swaroop. The execution of the said will is highly improbable as Munna Lal son of Hardei was alive at that time and there was no reason to execute a will by her in favour of Ganga Devi, depriving her only son of the property of his father. 11. Learned AGA, on the other hand argued that the FIR was promptly lodged at 2:00 A.M. as the incident took place at 12:30 P.M. There was no reason for false implication of the appellant. Appellant Khushali and Ram Bharose had a good opportunity to commit the crime. They also absconded and only after proceedings under Sections 82/83 Cr.P.C. could they be arrested. 12. After consideration of the evidence on record, we are of the opinion that there is no adequate evidence for connecting the appellant Khushali with the offence as it was too much of a co-incidence and highly improbable that the appellant Khushali, Ram Bharose and the two other miscreants would be leaving the house of Hardai after committing the murders of Hardei and Munna at the precise time when the witnesses had arrived at the house. The appellant Khushali and Ram Bharose were acquainted to the witnesses, especially Lalta Prasad, as they were tenants of the house and Lalta Prasad used to look after the welfare of the deceased Hardei after the death of Ram Swaroop. It should have been mentioned in the FIR itself that Khushali and Ram Bahrose were armed with countrymade pistols and the two other miscreants were unarmed. Although substantial properties are said to have been stolen from the house and the appellant and the other three miscreants allegedly took away four 'potlies' but details of the said properties have never been mentioned nor any list of the said property is on the record. Even after arrest of Khushali and Ram Bharose on 2.3.1981 and 3.3.1981 respectively after a police remand was taken on 4.3.1981 not a single item was recovered from the accused. Even the names of the other two miscreants who were said to have participated in the incident were never disclosed. The abscondence of the accused persons alone can not result in an inference that the accused appellant Khushali could alone have committed the crime. Even the names of the other two miscreants who were said to have participated in the incident were never disclosed. The abscondence of the accused persons alone can not result in an inference that the accused appellant Khushali could alone have committed the crime. The accused persons Khushali and Ram Bharose who might have run away for some time due to fear that they would be implicated falsely in this case as they were tenants in the house of Smt. Hardei. 13. The Apex Court in the case of Sunil Clifford Daniel vs. State of Punjab reported in (2012) 11 SCC 205 has laid down the law on this issue in paragraph 31 of the judgment which is quoted as under:- "This Court has considered this issue time and again and held that the mere fact of absconding, on the part of the accused, alone does not necessarily lead to a final conclusion regarding the guilt of the accused, as even an innocent person may become panic-stricken and try to evade arrest, when suspected wrongly for committing a grave crime; such is the instinct of self-preservation." 14. A very significant feature in this case is the suspicion which arises in our mind as to whether the appellant had indeed committed the crime or whether the informant Lalta Prasad himself could have got this crime committed and concocted the entire story and falsely implicated the appellant and Ram Bharose, the two tenants of the deceased to clear himself of suspicion. The reason for this inference is that it has come to light because of the statement of Lalta Prasad that the deceased Hardei had made a will in favour of her sister Ganga Devi, wife of Lalta Prasad. It is claimed by Lalta Prasad that Hardei had executed a will of her entire property which consisted of two houses and land etc. in favour of her sister Ganga Devi and regarding this will there was even a 'marpeet' between Kanhai, brother of Ram Swaroop the pre-deceased husband of Hardei and Lalta Prasad. This quarrel had taken place after the death of Hardei. We find it impossible to conceive as to why Hardei would have made any will in favour of her sister Ganga Devi when her own son Munna Lal was alive. This quarrel had taken place after the death of Hardei. We find it impossible to conceive as to why Hardei would have made any will in favour of her sister Ganga Devi when her own son Munna Lal was alive. In such circumstances, the informant Lalta Prasad would have had a strong motive for eliminating Hardei and her son Munna Lal. Her other son Ram Pal and husband Ram Swaroop had died earlier and there was no one else to claim the property. Therefore, we think that the needle of suspicion also points towards Lalta Prasad but there is no evidence to conclusively establish this fact. It is indeed unfortunate that the Investigating Officer did not investigate this crucial angle. We questioned the learned AGA on this point but he could not give any satisfactory reply on this aspect. 15. In the totality of circumstances, we are of the opinion that the prosecution has not succeeded in establishing the case against the appellant Khushali beyond reasonable doubt. The Judgment of the trial court dated 21.12.1982 is set aside. The appellant is acquitted of the charges levelled against him. He is on bail. He need not surrender. His personal bond is released and the sureties are discharged. 16. The appeal succeeds and is allowed. 17. The certified copy of the judgment be sent to the lower court within a week. Record of the case be also transmitted to the court below.