Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 909 (ALL)

State of U. P. v. Mahendra

2014-03-21

RAKESH TIWARI, RAMESH SINHA

body2014
JUDGMENT Ramesh Sinha, J.: - The present Government Appeal has been filed by State against the judgment and order dated 26.6.1984 passed by the Ist Additional Sessions Judge, Meerut in S.T. No.275 of 1983, State Vs. Mahendra and others, by which the accused respondents have been acquitted by the trial Court for the offence under Sections 436 and 302/34 I.P.C. 2. Accused respondent No.4 Faqir Chand has died during the pendency of the appeal, and it has already been abated against him vide Court's order dated 4.4.2012. 3. The prosecution case in nutshell is that about 20 days prior to the occurrence, brick bats were being thrown in the house of one Moti which were coming from the direction of 'Bakhar' of accused Mahendra. Moti requested accused Mahendra to refrain from the act. Subhash also intervened in the matter and asked Mahendra that in case he comes to know that someone else was doing it, then to prevent him from throwing brick bats. However, accused Mahendra reiterated that he was a Government servant and they cannot do anything and he would see that they are set right. 4. On 17.3.1983, at about 1 a.m. when Subhash, Kiran and Manoj were sleeping inside the house, Moti heard shrieks coming from the house of Subhash. His house is situated at a distance of about 15-20 meters from the house of Subhash. He reached the place of occurrence and saw accused Mahendra with Babu Ram, Sumru and Faqir Chand, who belong to his village, over the roof of the house of Subhash who were recognized by him in the light of burning small pieces of wood (Jhunrries) over the roof. He also saw one of them carrying a plastic can and raised an alarm, upon which Charan Singh, Daya Chand, Atar Singh and a number of other persons arrived there. All the accused persons thereafter came to the roof of the house of Kali which is situated by the side of the house of Subhash and then got down in the lane and ran away. Charan Singh and Daya Chand who live at a distance of about 15 ft. and 30-35 ft. respectively from the house of Subhash also saw the accused while coming down to the roof of Kali and making good their escape. Daya Chand was also carrying a torch. Charan Singh and Daya Chand who live at a distance of about 15 ft. and 30-35 ft. respectively from the house of Subhash also saw the accused while coming down to the roof of Kali and making good their escape. Daya Chand was also carrying a torch. All of them came to the door of the house of Subhash which was locked. They broke it open and entered inside and brought Subhash, Kiran and Manoj outside whose condition was serious. The persons who had collected there brought the fire under control but the articles inside the house of Subhash were burnt. 5. The F.I.R. about the incident was lodged on 17.3.1983 at about 2.30 a.m. by Atar Singh, the uncle of the deceased Subhash, which was scribed by one Shiv Nath and the same was handed over to constable Mahipal. On it's basis check report (Ext. Ka-4) was prepared by him and entered in the General Diary registering a case under Section 307 and 436 I.P.C. which was marked as Ext. Ka-5. The three injured were also carried to the police station by Atar Singh who were sent to the Bhavanpur Hospital in a jeep as the doctor was not available there. The injured were taken to Piarey Lal Sharma Hospital, Meerut where Subhash and Manoj died.Constable Hari Kishan brought the information about the death of the two deceased to the police station, whereupon its entry was made in the General Diary by the Constable Narain Singh (Ext. Ka-6) and the case was converted under Section 302 I.P.C. 6. PW 14 Dr. S.K. Tyagi had examined Subhash before his death at 3.30 a.m. on 17.3.1983. He had also examined Kiran at 3.45 a.m. on the same day. Kiran was then sent to the Medical College, Meerut for further treatment. Upon the medical examination of Subhash by PW14 he was found to have 100% first to third degree burns. They were fresh. Smell of kerosene oil was present. No mark of identification was visible. All the fingers and the toes were burnt and, therefore, no thumb or finger impression could be taken. Similarly, Kiran had 50% first to third degree burns. Smell of kerosene was also present. Her general condition was very poor. She was found to be pregnant for 7 months. Both the thumbs were burnt and, therefore, no thumb impression could be taken. Dr. Similarly, Kiran had 50% first to third degree burns. Smell of kerosene was also present. Her general condition was very poor. She was found to be pregnant for 7 months. Both the thumbs were burnt and, therefore, no thumb impression could be taken. Dr. S.K. Tyagi proved the medical examination report (Ext. Ka-18 and Ka-19) which was prepared by him at that time and had further stated that these injuries could have been caused on 17.3.1983 at about 1 a.m. 7. The post mortem examination of deceased Subhash was conducted by PW2 Dr. Fariduddin on 17.3.1983 at 3 p.m. He found the following injury on the dead body of Subhash: (I) Superficial to deep burn present all over the body. Scalp hair singed, pubic hair and axillary hair, eyebrow, eye laynx burnt. Vesicles present at places. 8. Upon internal examination, brain and its membranes were congested. Lungs and its membranes were also found congested. Trachea and laynx which contained carbon particles were also congested. Inside the stomach food material in the form of paste was found. According to the doctor death was caused due to shock as a result of burns found upon the dead body. The pieces of burnt underwear were sealed in a packet and given to the constable who had brought the dead body for post mortem examination. He also stated that Subhash had died at the hospital at 5.05 a.m. on the same day. 9. Kiran gave birth to a dead male child on 20.3.1983. She died on 22.3.1983 at Medical College, Meerut at about 1.20 p.m. Her post mortem examination was conducted by Dr. P.L. Khanna on 23.3.1983 at 2 p.m. He found the following injuries upon her dead body: “(1). Burn injuries (about one week duration). 80% burns over whole body. Redness and swelling was also present around the injuries. (2) Bed sores 12 cm. x 8 cm. over the back. (3) Scalp hair are singed on upper half." 10. Upon internal examination, lungs and its membrances were found congested. Spleen, both the kidneys, liver and stomach were pale. Brain and its mumbrances were also found pale. According to the doctor death was caused due to hypoproteinaemia and septicaemia caused on account of the burns found upon the dead body. He proved the post mortem examination (Ext. Upon internal examination, lungs and its membrances were found congested. Spleen, both the kidneys, liver and stomach were pale. Brain and its mumbrances were also found pale. According to the doctor death was caused due to hypoproteinaemia and septicaemia caused on account of the burns found upon the dead body. He proved the post mortem examination (Ext. Ka-20) prepared by him at that time and further stated that the burns could have been caused on 17.3.1983 at about 1 a.m. 11. The post mortem report examination of deceased Manoj was also conducted by PW2 Dr. Fariduddin on the same day at 3.45 p.m. He found the following injury on his dead body: " (1) Superficial to deep burn present on face including right ear, right side of chest and front of abdomen, both forearm including palm, pubic region, both lower extremities except back of thigh and both sole." 12. The investigation of the case was taken up by P.W. 11 S.I. Mahendra Singh. 13. The prosecution in support of its case examined seven witnesses, out of which four witnesses of fact are P.W. 1 Atar Singh, P.W. 5 Charan Singh, P.W. 9 Daya Chand and P.W. 10 Moti. Rest of the witnesses are formal witnesses, such as P.W. 2 Dr. Fariduddin, P.W. 3 Mahipal, P.W. 4 Vijai Singh, P.W. 6 Mool Chand, P.W. 7 Home Guard Umesh Chand, P.W. 8 Constable Veerpal Singh, P.W. 11 S.I. Narendra Singh, P.W. 12 S.I. Akhtar Ali Khan, P.W. 13 Hamid Hussain, P.W. 14 Dr. S.K.Tyagi, P.W. 15 Dr. P.L. Khanna, P.W. 16 Yogendra Dutt Sharma and P.W. 17 Yashpal Singh. 14. The case was committed to the Court of Session by the learned Magistrate and the trial Court framed charges against the accused persons on 2.8.1983 for the offence under Section 436 and 302/34 I.P.C. 15. The accused pleaded not guilty and claimed to be tried. In their statements under Section 313 Cr.P.C. they had denied the prosecution allegations and submitted that they have been falsely implicated in the present case. Certain documentary evidences were filed in defence by the accused to show their enmity with the complainant and other witnesses of the case. 16. The accused pleaded not guilty and claimed to be tried. In their statements under Section 313 Cr.P.C. they had denied the prosecution allegations and submitted that they have been falsely implicated in the present case. Certain documentary evidences were filed in defence by the accused to show their enmity with the complainant and other witnesses of the case. 16. P.W. 1 Atar Singh who is the informant of the case has deposed before the trial Court that he had not seen the accused setting the house of the Subhash to fire and when he came to the place of occurrence the other witnesses, namely, Charan Singh, Daya Chand and Moti had informed him about the said incident, for which he lodged an F.I.R. Ext. Ka-1 of the occurrence which he got scribed by one Shiv Nath. Charan Singh P.W. 5, said to be an eye witness of the occurrence, in his examination-in- chief supported the prosecution version and deposed that he had seen all the accused running from the roof of the house of Subhash and that the house of Subhash was burning. Whereas, witness Daya Chand PW9 has also reiterated the version given by Charan Singh P.W. 5 and also deposed that to have seen all the four accused running from the lane over the passage and also saw one of the accused running away with the plastic can in his hand in the light of torch which he was carrying. Moti PW10 has also supported the prosecution story and has also claimed to have seen all the four accused over the house of Subhash and had also witnessed one of the accused carrying a plastic can in his hand. 17. All the said witnesses have supported the prosecution story about the burning of the house of Subhash and taking Subhash, Manoj and Kiran to Hospital Bhavanpur from where they were sent to the Piarey Lal Sharma Hospital, Meerut by the police. 18. Dr. Fariduddin PW 2 who had conducted the post mortem of the deceased Subhash, Manoj and Kiran respectively proved post mortem reports which were marked as Exts. Ka-2, Ka-3 and Ka-20 respectively. 19. 18. Dr. Fariduddin PW 2 who had conducted the post mortem of the deceased Subhash, Manoj and Kiran respectively proved post mortem reports which were marked as Exts. Ka-2, Ka-3 and Ka-20 respectively. 19. The formal witness Constable Mahipal P.W. 3 proved the chick F.I.R. and has deposed that Atar Singh P.W. 1 had given a written report of the incident and on the basis of which he prepared the chick report and made entry in the General Diary and proved Ext. Ka.4 and Ka-5 for which he registered a case under Section 307/436 I.P.C. Vijai Singh PW4 was the Sub Inspector who had prepared the inquest report of deceased Kiran and proved the inquest report and other formal papers Exts. Ka-8 to Ka-11 respectively. Constables Mool Chand, Umesh Chand and Veerpal Singh PW 6, PW 7 and PW8 respectively stated that they had taken the dead body of deceased Subhash for post mortem after inquest. 20. S.I. Marendra Singh P.W. 11, the first Investigating Officer of the case, stated that he had made copies of the relevant papers in the case diary and recorded the statements of Constable Mahipal P.W. 3 and Atar Singh P.W. 1. Thereafter the three injured were sent for medical examination. He along with PW 16 S.I. Yogendra Dutt Sharma S.O. and two constables reached the house of Subhash. S.I. Akhtar Ali Khan PW12 deposed that he recorded the statement of witnesses of the inquest report and submitted charge sheet Ext.Ka-17 against the accused persons on 5.3.1983. 21. Hamid P.W. 13 a witness of recovery of burnt clothes of deceased, a broken lock, a mashal, a plastic can which was recovered from the place of occurrence and lane and has proved the recovery memo prepared by the police Exts. Ka-13 to Ka-16. 22. The doctor namely, Dr. S.K. Tyagi P.W. 14 who had medically examined two injured, namely, Subhash on 17.3.1983 at 3.3.0 a.m. and Smt. Kiran at 3.45 am. on the same day respectively before their death and Dr. P.L. Khanna P.W. 15 who was posted as Medical Officer at P.L.Sharma Hospital. He had conducted the post mortem report of the three deceased, namely, Subhash, Manoj and Kiran on 17.3.1983 and 20.3.1983 proved their post-mortem report Exts. Ka-2, Ka-3 and Ka-20 respectively. 23. on the same day respectively before their death and Dr. P.L. Khanna P.W. 15 who was posted as Medical Officer at P.L.Sharma Hospital. He had conducted the post mortem report of the three deceased, namely, Subhash, Manoj and Kiran on 17.3.1983 and 20.3.1983 proved their post-mortem report Exts. Ka-2, Ka-3 and Ka-20 respectively. 23. Yogendra Dutt Sharma P.W. 16 who had recorded the statement of Charan Singh P.W. 5, Daya Chand P.W. 9 and Moti PW10 and Munshi on 18.3.1983 stated that Daya Chand produced before him a torch in working condition and after examining it he handed it over to Daya Chand after preparing supurdginama (Ext. Ka-21); that on 19.3.1983 he received the injury reports of Subhash and Kiran and had made the entries thereof in the case diary; that on 24.3.1983 he received the inquest report and other connected papers regarding the death of Subhash and Manoj of which he had made entries thereof in the case diary; that on 12.4.1983 he received the inquest report and other formal papers relating to deceased Kiran and had made entries thereof also in the case diary. Thereafter he was transferred. 24. Yashpal Singh P.W. 17 had conducted the panchayatnama of deceased Manoj at P.L. Sharma Hospital at 9.40 a.m. on 17.3.1983 and had also prepared photonash, chalan-lash, a letter for post mortem of deceased and he also proved the Exts. Ka-20 to Ka-25. 25. Heard Sri S.N. Tripathi, learned A.G.A. and perused the record. 26. It has been argued by the learned A.G.A. that the trial Court has misread the evidence on record and has acquitted the accused respondents on the ground that the presence of the three eye witnesses at the place of occurrence was doubtful and they had not seen the incident. He further submitted that the accused belong to the same village, hence, there was no difficulty in identifying them though there was no source of light at the spot. He further argued that the F.I.R. of the incident was lodged promptly. The medical evidence was corroborated by the ocular testimony. The eye witnesses were not inimical to the accused. He further argued that the witness Moti was busy in trying to save the life of the victims and the injuries received by him during the course of saving the life of the deceased he did not show his injuries to the Investigating Officer. The eye witnesses were not inimical to the accused. He further argued that the witness Moti was busy in trying to save the life of the victims and the injuries received by him during the course of saving the life of the deceased he did not show his injuries to the Investigating Officer. Hence, on these ground he argued that the judgment and order passed by the trial Court acquitting the accused respondents be set aside and accused be convicted. 27. We have given thoughtful consideration to the prosecution case, appraisal of evidence by the trial Court and the grounds of acquittal of the accused by the trial Court. 28. From the evidence on record, it is evident that the incident had taken place in the intervening night of 16/17.3.1983 at about 1 a.m. Atar Singh P.W. 1 who is the informant of the case and uncle of the deceased Subhash admittedly is not an eye witness of the occurrence and had lodged the F.I.R. against the accused persons on the information given by the other persons, namely, Charan Singh P.W. 5, Daya Chand P.W. 9 and Moti P.W. 10 that it was the accused persons who were seen at the place of occurrence on the lighted roof of the house of the deceased Subhash. He further deposed that he had reached at the place of occurrence on hearing the shriek coming out from the house of Subhash which was at a distance of 15-20 meters from his house. 29. So far as Charan Singh P.W. 5 is concerned, he has deposed that he reached at the place of occurrence on the alarm raised from the house of deceased Subhash; that when he came from his house he saw that fires had caught the jhunrries which were kept on the roof of the house of deceased Subhash and in its light saw the accused persons running away from the place of occurrence. In the cross examination, this witness stated that he saw the accused on the roof of the house of the deceased Subhash standing and further that they were covering their heads by bed sheet but their faces were open. In the cross examination, this witness stated that he saw the accused on the roof of the house of the deceased Subhash standing and further that they were covering their heads by bed sheet but their faces were open. He denied the suggestion given by the defence that he was not present in the village on the date and time of the occurrence as he was out of the village and at the instance Atar Singh, who is his brother, he is falsely deposing against the accused. 30. It further transpires from the evidence of P.W. 9 Daya Chand that in examination-in-chief he though has supported the prosecution story and submitted that he had also seen the accused persons at the roof of the house of deceased and running away from the place of occurrence through a lane and one of them was carrying a plastic can in his hand but in his cross examination he has clearly deposed that the accused were concealing their faces with clothes and he could not see their faces but could identify them by their body language and gait (chall); that he also raised alarm and that when he reached at the place of occurrence he saw the other witnesses, namely, Moti, Munsi had there. 31. Moti P.W. 10 deposed that his house is situated at a distance of 15-20 meters from the house of Subhash; that when he reached at the place of occurrence hearing the hue and cry coming from the house of deceased Subhash, he saw the accused standing on the roof of the house of Subhash whom he recognized in the light of the fire. They ran away from the place of occurrence through a lane and other witnesses namely, Munshi, Charan Singh and Daya Chand had by that time arrived at the place of occurrence. 32. The trial Court has disbelieved the presence of the three eye witnesses of occurrence, namely, Charan Singh P.W. 5, Daya Chand P.W. 9 and Moti P.W. 10 by giving a sound reasons which shows their presence at the place of occurrence to be doubtful and further trial Court after scanning their evidence came to the conclusion that their evidence were not a reliable one, hence, discarded their testimony. 33. 33. Thus, from the evidence of Atar Singh P.W. 1 and Daya Chand P.W. 9 it is clear that they had not seen the accused at the place of occurrence. In so far as Charan Singh P.W. 5 and Moti P.W. 10 are concerned, though they have claimed to be the eye witnesses of the occurrence but they did not see the accused burning the house of deceased Subhash and they were only seen running from the place of occurrence in the light of the fire. Charan Singh P.W. 5 in his cross examination has stated that when he reached at the door of the house of deceased Subhash and raised alarm for 8-10 minutes, the accused remained standing there and did not run away. This statement of Charan Singh P.W. 5 also raises doubt about his testimony, as it is highly improbable to believe that the accused would wait at the place of occurrence after burning the house in order to get themselves identified. Moreover, it has also come in the evidence of PW5 that the accused were covering themselves by bed sheet but they had not concealed their faces which again appears to cast serious doubt about his credibility and presence at the place of occurrence. 34. From the evidence of Moti P.W. 10 also, it appears that his presence at the place of occurrence is doubtful and his testimony cannot be relied upon as he was the person who had personal grudge against the accused Mahendra as 20 days prior to the incident he had objected him towards whose house some brick bats were being thrown or coming and there was altercation between them. The accused had even no motive to commit the crime in question against the deceased Subhash. Moti P.W. 10 appears to have developed a story involving deceased Subhash also in the incident that he objected the accused Mahendra from throwing brick bats towards the house of Moti P.W. 10 and when the unfortunate incident had taken place at the house of deceased, Moti PW10 due to inimical relation with the accused Mahendra implicated him and his relatives. 35. 35. Since the learned A.G.A. also could not point out from the evidence on record that it was the accused persons who had burnt the house of the deceased Subhash, in which he along with his wife and son was sleeping and burnt to death and the only evidence which has been brought by the prosecution is that the accused were seen at the spot and running from the place of occurrence in the midnight does not by itself establish their guilt without there being any further evidence to show that it were the accused who had committed the crime. It might quite be possible that when the house of deceased Subhash somehow caught fire, all the persons of the village on hearing the hue and cry ran towards the house of deceased Subhash to save him or to see the incident and the accused were also seen running towards the place of incident in order to see it and Moti P.W. 10 who was having ill will with accused Mahendra from earlier had falsely implicated the accused Mahendra and his other relative in the present case taking advantage of the present case. 36. From the documentary evidence which has also been brought on record by the accused showing that the witnesses were also inimical to the accused as all the accused persons including brother of accused Sumru, namely, Shishpal had given an application to the Collector against eye witness Moti, and on the basis of which a report was lodged against the eye witnesses Atar Singh P.W. 1 and P.W. 10 Moti, due to which they were having enmity with accused, hence, the possibility of false deposition by these witnesses, who belong to one party, against the accused can also be not ruled out, as it would not be safe to hold the accused guilty on such highly interested and partisan witnesses. 37. The Court is conscious of the fact that three persons of a family have lost their lives in the incident but to hold a person guilty only on account of suspicion in the absence of proof is not the administration of justice. It is well settled that how much strong may be the suspicion but it cannot take the place of proof. 38. It is well settled that how much strong may be the suspicion but it cannot take the place of proof. 38. The Apex Court in catena of decisions has repeatedly held that the view taken by trial Court should not be normally interfered by the Appellate Court unless it shows that the view taken by the trial Court is perverse, unreasonable and illegal on appraisal of evidence on record. 39. Having considered the totality of the circumstances of the present case, it cannot be said that the view taken by the trial Court in acquitting the accused-respondents is perverse or unreasonable. We are of the opinion that the trial Judge has committed no illegality in recording the finding of acquittal, hence, no interference is called for in the judgement and order dated 26.6.1984 passed by the trial Court. 40. The appeal lacks merit and is, accordingly, dismissed.