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2015 DIGILAW 3667 (ALL)

Mohan Lal v. State of U. P.

2015-11-24

PRATYUSH KUMAR, SURENDRA VIKRAM SINGH RATHORE

body2015
JUDGMENT Surendra Vikram Singh Rathore, J. – Mr. Bhagwati Prasad Nigam, learned counsel for the appellant, Mr. Sharad Dixit, learned A.G.A. for the State were heard at length. Under challenge in this appeal is the judgment and order dated 29.4.1982 passed by learned Sessions Judge, Hardoi in Sessions Trial No. 567 of 1981 arising out of Case Crime No. 86 of 1979, Police Station Sursa, District Hardoi whereby present appellant Mohan Lal was convicted for the offence under Section 302 I.P.C. and was sentenced with imprisonment for life. 2. In this case, one Kali Charan was murdered. Appellant Mohan Lal happens to be his younger son. Complainant Chhote Lal is the real elder brother of appellant Mohal Lal. Witness PW-3 Girisa is wife of appellant Mohan Lal. 3. Brief facts of the case are that complainant Chhote Lal lodged an F.I.R. On 24.5.1979 at 10: 15 a.m. alleging therein that his mother had expired two years prior to this incident and wife of his elder brother (appellant Mohan Lal) used to live in the house. Deceased Kali Charan (father of complainant) had an evil eye on the wife of Mohan Lal, namely, Girisa. When the appellant heard about this thing then he told it to the persons of the village and the villagers scolded Kali Charan for his such act due to which he remained normal for sometime. About one month prior to the incident, appellant Mohan Lal got a job of peon in Tehsil Hardoi. In that connection he had gone, few days back, for his service. On 23.5.1979 at about 6: 00 a.m. deceased Kali Charan again went to Smt. Girisa and asked her to come to his bed. When she declined to obey his ill desire then deceased Kali Charan gave 2-3 blows of danda to Girisa. On the date of incident at about 3: 00 p.m. when Mohan Lal came to the house then Smt. Girisa narrated him the entire story and thereafter Kali Charan went away from the house. Mohan Lal was very much annoyed with such conduct of his father and was in search of his father. Complainant Chhote Lal after taking his meals was lying on the door of his house, the bed of his father was lying under the 'Chhappar' and there was a light of lantern. His father came and also lied on his bed. Mohan Lal was very much annoyed with such conduct of his father and was in search of his father. Complainant Chhote Lal after taking his meals was lying on the door of his house, the bed of his father was lying under the 'Chhappar' and there was a light of lantern. His father came and also lied on his bed. In the night at about 10: 00 p.m. Mohan Lal came out of the house and saw that his father was lying on the bed. He went inside the house and immediately he came back and started quarrelling with his father and he grappled his father on the cot. When his father cried then Ram Swaroop, Chiranjivi, Hulasi and other persons reached there and asked Mohan Lal not to hit the deceased but appellant Mohan Lal, who was armed with a knife gave a blow of knife on the abdomen due to which intestine of Kali Charan came out and he died on the spot. Appellant Mohan Lal ran away from there. In the night, complainant could not go to lodge the report because of fear. Next day in the morning, he went to the police station and lodged the F.I.R. of this case, which was registered at 10: 15 a.m. On 24.5.1979. During investigation, inquest proceedings were conducted. The dead body was sealed and sent for postmortem, which was conducted by PW-1 Dr. A.K. Mehrotra on 25.5.1979 at 3: 30 p.m. and following ante mortem injuries were noted on the body of the deceased: - (i) Penetrating wound with incised clean cut margins of size 7 c.m. x 4 c.m. x abdominal cavity deep on right side of front of abdomen. Between 11 and 12 O'clock position from umbilicus at the right sub-costal margin. Small and large intestines were coming out of the wound. The wound was obliquely placed. (ii) Incised wound with clean cut margins size 2 c.m. x 0.6 c.m. x bone deep, placed obliquely on front surface of proximal phalanx of left little finger. There was a granulating wound on left big toe which was bandaged. On internal examination, peritoneum was found clean cut. Cavity contained blood mixed with faecal matter. Abdomen was found clean cut and the stomach cavity contained about 8 Oz. partially digested food matter. Small intestines were found cut and were coming out of the wound. There was a granulating wound on left big toe which was bandaged. On internal examination, peritoneum was found clean cut. Cavity contained blood mixed with faecal matter. Abdomen was found clean cut and the stomach cavity contained about 8 Oz. partially digested food matter. Small intestines were found cut and were coming out of the wound. Faecal matter was found in the large intestines. Transverse colon was found cut and intestines were coming out of injury no. 1. Faecal matter and gas was found. The lower bladder was also found cut. 4. Appellant Mohan Lal was arrested by the police on 24.5.1979 at 4: 30 p.m. and on his pointing out, weapon of offence was recovered. Girisa was also medically examined by PW-7 Dr. S.N. Singh and following injury was found on her person: - "Contusion 4 c.m. X 2 c.m. On the left elbow joint. Bluish red in colour. Swelling on the upper and lower arm upto mid point on each side. Tenderness present." The injury was kept under observation and x-ray of left elbow joint advised. It was caused by some blunt object and was about 2½ days old. X-ray of Girisa was also conducted by PW-9 Dr. A.K. Singh and as per x-ray report, there was fracture in the lower end of humerus bone. 5. After completing the investigation, charge sheet was filed. 6. The case of the defence was of total denial and it was pleaded by the appellant in his statement recorded under Section 313 Cr.P.C. that about three days prior to the incident, he had gone to Hardoi. On the date of incident at about 9: 00 p.m., he reached his home when he was at a distance of 25-30 paces from his house then he heard the cries of his wife. She was crying (---Hindi---). The appellant rushed towards his house then his wife ran into the house and his father was lying there and a knife was also lying there. Next day when the police came, he was arrested and false case was planted against him. 7. In order to prove its case, the prosecution has examined PW-1 Dr. A. K. Mehrotra, who has conducted postmortem on the body of the deceased. PW-2 complainant Chhote Lal, son of the deceased. PW-3 Smt. Girisa, wife of the appellant. Next day when the police came, he was arrested and false case was planted against him. 7. In order to prove its case, the prosecution has examined PW-1 Dr. A. K. Mehrotra, who has conducted postmortem on the body of the deceased. PW-2 complainant Chhote Lal, son of the deceased. PW-3 Smt. Girisa, wife of the appellant. PW-4 Chiranjivi, independent witness of the occurrence mentioned in the F.I.R. PW-5 Jagadeshwar, this witness was examined on the point of extra judicial confession. PW-6 Ram Pal, he was a witness of recovery of weapon of offence on the pointing out of the appellant. PW-7 Dr. S.N. Singh, who had medically examined PW-3 Smt. Girisa. PW-8 S.I. Ram Lal Tiwari, who has proved chik report and G.D. of this case as secondary evidence, which were prepared by Constable Sita Ram. PW-9 Dr. A.N. Singh, who had prepared x-ray report of PW-3 Smt. Girisa. PW-10 Chaukidar Makhan, who had taken the dead body in a sealed condition for postmortem. PW-11 is S.O. K.D. Tripathi, Investigating Officer of this case. 8. No evidence in defence was adduced on behalf of the appellant. 9. After appreciating the evidence on record, the trial court has convicted the appellant as above, hence the instant criminal appeal. 10. Submission of learned counsel for the appellant was that in the instant case, not even a single witness of fact has stated that the appellant was the person who has given the fatal blow to deceased and the trial court in spite of that only on the basis of the evidence of PW-3 Smt. Girisa and PW-2 Chhote Lal that the deceased had an evil eye on Smt. Girisa has convicted the appellant for offence under Section 302 I.P.C. It has also been submitted that recovery of weapon of offence was not supported by the independent witness PW-6 Ram Pal who has also turned hostile. Thus the trial court only on the basis of the evidence of PW-2 Chhote Lal and PW-3 Smt. Girisa, who have not stated that appellant had caused the death of the deceased and on the basis of the evidence of PW-11 K.D. Tripathi, Investigating Officer of the case, has drawn the conclusion of the guilt of the appellant and the said conclusion becomes unsustainable under law as the evidence was not properly appreciated by the trial court. 11. 11. Learned A.G.A. has submitted that it is true that none of the witnesses of fact, has supported the case of the prosecution. The trial court taking an overall aspects of the matter and the circumstances, has convicted the appellant on the basis of existing circumstances. Since the appellant in his statement, recorded under Section 313 Cr.P.C., had admitted that at that relevant point of time, he was present and therefore with the help of other circumstances, has convicted the appellant. 12. In view of the rival submission, the evidence has to be re-appreciated. 13. In the instant case, all the witnesses of fact and recovery have turned hostile and their statements given under Section 161 Cr.P.C. were proved by the prosecution as Ext. Ka 17 to 21. The prosecution has come with a definite case that the appellant has given fatal blow to the deceased with knife and has proposed to prove its case by direct evidence of eyewitness. PW-2 complainant Chhote Lal, PW-3 wife of appellant Girisa and three other persons, namely, Ram Swaroop, Chiranju and Hulasi were alleged to have witnessed this occurrence. So far as Ram Swaroop and Hulasi are concerned, they have not been examined by the prosecution during trial. Remaining witnesses, namely, PW-2 Chhote Lal, PW-3 Smt. Girisa, and PW-4 Chiranju have not stated that they have seen the appellant giving blow of knife to the deceased. 14. It transpires from the perusal of the record that during trial, an alternative defence was taken on behalf of the appellant. Initially it was pleaded that no one has seen the incident so the appellant is entitled to be acquitted and in the alternative, it was pleaded that even if the entire case of the prosecution is taken to be true even then it would be an act committed by the appellant in exercise of right of private defence of body of his wife but the trial court has not found substance in any of the two defence and has convicted the appellant. 15. PW-10 Dr. A.K. Singh has proved ante mortem injuries and has stated that the said injuries could have been caused at the time as alleged by the prosecution. PW-2 Chhote Lal is the complainant. This witness has denied the fact of dictating F.I.R. to Ram Swaroop. 15. PW-10 Dr. A.K. Singh has proved ante mortem injuries and has stated that the said injuries could have been caused at the time as alleged by the prosecution. PW-2 Chhote Lal is the complainant. This witness has denied the fact of dictating F.I.R. to Ram Swaroop. He has stated that he had not dictated the report to Ram Swaroop nor he has put any thumb impression on any report scribed by Ram Swaroop nor he has given any such report at the police station. 16. In these circumstances, prosecution ought to have examined the scribe of the F.I.R. Ram Swaroop to support its case that the F.I.R. was lodged by the person as claimed by the prosecution but he has not been examined. So the origin of F.I.R. comes under shadow of doubt. Even the Head Moharir Sita Ram who has prepared chik report and G.D. of this case, was withheld and these documents were proved as secondary evidence by S.I. Ram Pal Tiwari while Sita Ram was alive. 17. Law is settled on the point that when the origin of F.I.R. is under shadow of doubt then the same would not be a ground, by itself, to discard the entire case of the prosecution on this score alone but definitely a duty is cast upon the court to scrutinise the prosecution evidence with extra care and caution. 18. So the prosecution evidence has to be re-appreciated with extra care and caution. PW-2 complainant Chhotel Lal has nowhere stated that he had seen the appellant giving blow of knife to his father though he has supported the motive part of this incident that his father Kali Charan (deceased) had an evil eye on the wife of the appellant. He has stated that PW-3 Smt. Girisa was coming back after attending call of nature at sunset, then the deceased caught her hand. When she cried then the complainant asked her what is the matter then PW-3 Smt. Girisa replied that he (deceased) wants to outrage her modesty and is pulling her against her will. Deceased Kali Charan threatened her that in case she cries then she shall be killed. Thereafter appellant Mohan Lal came from Hardoi and asked about the matter. Appellant Mohan Lal grappled the deceased and what happened thereafter he does not know. Deceased Kali Charan threatened her that in case she cries then she shall be killed. Thereafter appellant Mohan Lal came from Hardoi and asked about the matter. Appellant Mohan Lal grappled the deceased and what happened thereafter he does not know. This witness was declared hostile and he was cross examined by the prosecution but nothing material could be elicited in his cross-examination on the point of F.I.R. In his cross examination, he has stated that when the wife of appellant Mohan Lal cried at that time, appellant Mohan Lal came back. The initial case of the prosecution was that the incident of attempt to outrage the modesty of PW-3 Girisa was committed in the morning at about 6: 00 a.m. and appellant Mohan Lal came back at 3: 00 p.m. on the same day. Thus the version of the F.I.R. was not supported by the complainant. In his examination in chief, this witness has stated that the incident of outrage the modesty of PW-3 Smt. Girisa took place at the time of sunset and appellant came back from Hardoi at the time of sunset and not at 3: 00 p.m. as mentioned in the F.I.R. Thus according to his version, whatever incident occurred it took place at the time of sunset and not at 10: 00 p.m. as alleged by the prosecution. PW-3 Smt. Girisa, on the point of incident, has stated that her father in law (deceased) had an evil eye on her and had very bad intention towards her. She never disclosed this fact to her husband. So on this point again, the version of F.I.R. has not been supported. As per the version of F.I.R. This fact was within the notice of appellant Mohan Lal and he also discussed this matter with the other persons of the village and other persons of the village scolded the deceased. She has stated that on the date of incident, her father in law has not said anything to her nor she was beaten by her father in law. In the evening she had gone to attend the call of nature. Her father in law was lying under the 'Chhapper'. When she came back then she was pulled by her father in law on the bed. When she cried then she was threatened with knife. In the meantime, her husband reached there to rescue her and thereafter she went inside. Her father in law was lying under the 'Chhapper'. When she came back then she was pulled by her father in law on the bed. When she cried then she was threatened with knife. In the meantime, her husband reached there to rescue her and thereafter she went inside. She expressed her inability to say whether her father in law suffered blow of knife accidentally or her husband has killed him. When she came out after about half an hour, she found that her father in law was lying dead on the cot. On her cries, several persons of the village also reached there. Thus according to the evidence of this witness, the incident has taken place in the evening and the same was not witnessed by any other person not even by complainant Chhote Lal. She has not supported the case of the prosecution that the complainant Chhote Lal was present there. 19. Perusal of the record shows that it was also pleaded in defence that either the deceased, out of shame, has committed suicide or possibility that while Smt. Girisa was lying to save herself in that process the deceased suffered the blow of knife accidentally. As stated earlier, this witness has not supported the case of the prosecution that appellant was the person who has given the fatal blow. PW-4 Chiranju has turned hostile and has stated that at the time of the incident, he was present at his house. PW-5 Jagdeshwar has also not supported the case of the prosecution. This witness was on the point of extra judicial confession of the appellant after the incident. This part of the prosecution case has not been supported by this witness. Nothing could be elicited in his cross-examination to support the case of the prosecution. PW-6 Ram Pal is the witness regarding the recovery of weapon of offence on the pointing out of appellant but he has not supported the case of the prosecution. PW-7 is Dr. S.N. Singh and PW-9 Dr. A.N. Singh are the doctors, who had medically examined Smt. Girisa so their evidence is only with regard to the injuries sustained by PW-3 Smt. Girisa. Smt. Girisa does not say that any danda blow was given to her by deceased. So their evidence is not sufficient to connect the appellant with the offence. S.N. Singh and PW-9 Dr. A.N. Singh are the doctors, who had medically examined Smt. Girisa so their evidence is only with regard to the injuries sustained by PW-3 Smt. Girisa. Smt. Girisa does not say that any danda blow was given to her by deceased. So their evidence is not sufficient to connect the appellant with the offence. Apart from it, PW-3 Smt. Girisa has not stated that deceased had given her blows of danda. She has only stated that she was pulled by the deceased on the bed and was threatened with knife by the deceased to remain silent. 20. PW-10 Makhan Chaukidar is also a formal witness. So there remains only the evidence of PW-2 Chhote Lal and PW-3 Smt. Girisa. Their evidence is only regarding the fact that the deceased had evil intention towards PW-3 Smt. Girisa. Both the witnesses of fact have not stated that the appellant was the person who has given the fatal blow. They have entirely changed the time and manner of occurrence as alleged in the F.I.R. Thus there remains only evidence of Investigating Officer. He has supported the case of the prosecution regarding the recovery but the factum of recovery has not been supported by the independent witness of the recovery. So the same, in our considered opinion, cannot be held to be sufficient to connect the appellant with the offence. 21. Law is settled on the point that the recovery under Section 27 of the Indian Evidence Act, by itself, would not be sufficient to convict the accused. The evidence of two witnesses viz., PW-2 complainant Chhote Lal and PW-3 Smt. Girisa is only regarding motive. We cannot ignore the fact that according to the evidence of these two witnesses, the incident has taken place at the time of sun set and not at 10: 00 p.m. as alleged by the prosecution. Apart from it, the incident of outraging the modesty of PW-3 Smt. Girisa by the deceased, as per version of F.I.R., had taken place in the morning even this aspect of the prosecution version has not been supported by any of the witness. According to the evidence of PW-3 Smt. Girisa, she was pulled on the bed by the deceased thereafter she was threatened with knife by the deceased. Thereafter she got herself rescued and went inside the house. According to the evidence of PW-3 Smt. Girisa, she was pulled on the bed by the deceased thereafter she was threatened with knife by the deceased. Thereafter she got herself rescued and went inside the house. Thus it has also come in evidence that the deceased caught hold of her hand and pulled her on his bed and deceased was having knife in his hand at that time, with which the deceased threatened her. In order to save herself there must have taken place some scuffling and the possibility of accidentally suffering the blow of knife, in the said process, cannot be ruled out. This aspect of the matter was not properly considered by the trial court, which rendered its judgment unsustainable under law. 22. In view of the discussion made above, this appeal deserves to be allowed and is hereby allowed. The judgment and order dated 29.4.1982 passed by learned Sessions Judge, Hardoi in Sessions Trial No. 567 of 1981 is hereby set aside. Appellant Mohan Lal is acquitted of the charge levelled against him. He be set at liberty. His bail is cancelled and sureties discharged. 23. Office is directed to certify this order to the court concerned forthwith to ensure compliance and also to send back the lower court record. Appeal Allowed.