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2016 DIGILAW 1832 (ALL)

MAHAVIR SINGH v. STATE OF U. P.

2016-05-12

K.J.THAKER, SHASHI KANT GUPTA

body2016
JUDGMENT : (Delivered by Hon'ble S.K. Gupta, J.) 1. This criminal appeal has been preferred by the accused appellant Mahavir Singh against the judgement and order dated 5.12.1983 passed by Sri P.C. Joshi III Addl. Sessions Judge,Bijnor in Session Trial No. 123 of 1983 convicting the appellant Mahavir for the offence punishable under Section 302 I.P.C. and sentencing him to undergo imprisonment for life for the said offence. 2. The story as unfolded by the prosecution is that about three months prior to the date of the incident i.e. 24.2.83, Kewal Singh, father of the accused Mahavir had died. Thereafter a dispute had arisen between Mahavir (appellant) and his brother Dharamvir, as a result of which Mahavir used to ask his wife not to cook food for the entire family. On 24.2.83 at about 8.00 A.M. while the informant Phulloo, r/o village Jothimma, P.S. Sherkat, District Bijnor, who was posted as a Chaukidar in a different village namely Jothimma, was going to ease himself to the forest, he overheard few women of the village of Mukarpur talking about the murder of Kela by his husband Mahavir with an axe. On hearing this, he proceeded to the house of Mahavir, he saw many people gathered there. Mahavir was tied to a tree in his courtyard and the dead body of his wife Kela was lying with bleeding injury on her forehead inside the Kotha of his house. The axe by which the injury was inflicted was lying near the dead body. He was informed by P.W.2, Sheeshram(younger brother of appellant Mahavir) that at around 8 O' clock in the morning, the wife of Mahavir was cooking food for the entire family, on seeing this, the appellant got enraged and inflicted axe blow on her forehead causing her death. The appellant thereafter caught hold of Mahavir with the help of Balbeer ( P.W. 3) and tied him to a tree. The informant went to the police station after leaving the Chaukidar of the village Mukarpuri at the spot to lodge FIR. 3. The F.I.R. was lodged at 10.00 A.M. i.e. after two hours of the incident. The distance between the police station and the place of occurrence is said to be around 10-12 Kms. The informant went to the police station after leaving the Chaukidar of the village Mukarpuri at the spot to lodge FIR. 3. The F.I.R. was lodged at 10.00 A.M. i.e. after two hours of the incident. The distance between the police station and the place of occurrence is said to be around 10-12 Kms. The Investigating Officer is said to have reached the place of occurrence at 12.30 P.M. During the investigation of the case, S.I.Balbir Singh( P.W. 6) prepared the site plan Ext.Ka-8,inquest report of the dead body, seizure memos relating to seizure of the blood stained axe, blood stained and simple soil from the place of incident. Dead body was sealed and was sent for the post-mortem examination. The post-mortem examination of the dead body was concluded on 25.2.83 at Bijnor. 4. During the investigation,the I.O. recorded the statements of informant Phullu ( P.W. 1),Sheeshram, younger brother of Mahabir (P.W.2), Balbir, cousin of Mahabir (P.W.3) and his mother Shanti (P.W. 4),Rameshwar Prasad Sharma, villager(P.W.5). After completing the investigation, the police submitted the charge sheet u/s 302 I.P.C against the accused. The trial court framed a charge u/s 302 I.P.C against the accused Mahavir to which he pleaded not guilty and claimed to be tried. 5. The prosecution examined Phullu P.W.1,Sheeshram P.W.2,Balbir Singh P.W.3,Smt. Shanti P.W.4,Rameshwar Prasad Sharma P.W.5 S.I.,Sri.Balbir Singh P.W.6,H.C. Satyavir P.W.7,constable Ali Momin P.W.8 and Dr. Vijay Kumar Goel P.W.9, in all 9 witnesses . 6. Sheeshram,P.W.2, has deposed that his brother Dilawar,his mother Shanti and his brother Mahavir used to live together. However, his brother Dharamvir was living separately as some dispute had arisen between Dharamvir and Mahavir owing to which Mahavir told his wife Smt. Kela Devi not to cook food for him as well as for other family members. Since the deceased was cooking for the entire family on the day of incident at about 8.00 AM the appellant got enraged and inflicted an axe blow on her forehead. His mother and sister in- law raised an alarm for help, upon which, the witnesses Balbir, Wahid, Nauratan and Jagram reached there and thereafter he and Balbir tied Mahavir to a tree in the courtyard with the help of a rope and after some time, Phullu Chaukidar too reached the spot and thereafter P.W. 1 Phullu proceeded to P.S. Sharkot to lodge a report of this incident. 7. 7. Balbir Singh P.W.3 has, inter alia, stated that after hearing the noise of Sheeshram and others he reached the house of Mahavir and saw the wife of Mahavir lying dead and one blood stained axe was lying near her. He and Sheeshram tied Mahavir to a tree with the help of a rope. 8. Smt.Shanti Devi, P.W.4 who is a mother of the accused Mahavir has not supported the prosecution case and deposed that the accused did not commit the murder of his wife Kela Devi. She was declared hostile on the request of the counsel for the State who was permitted to cross-examine her. 9. Rameshwar Prasad Sharma P.W.5, was a resident of village Mukarpuri. He has supported the prosecution story and stated that on 24.2.83 the Investigating Officer prepared the inquest report Ex. Ka-2 and recovered the axe from the Kothri and prepared a memo Ext. Ka-3. The I.O. also collected the blood stained and simple soil from the place of incident and kept the same in two separate Dibbas which are Ext. 2 and 3 and prepared memo Ext.Ka-4. 10. H.C. Satyavir P.W.7 had stated that on 24.2.83 he was posted as Head Moharrir at P.S. Sharkot. On that day he prepared the chik report Ext. Ka-1 on the dictation of one Phullu and entry was made in the G.D., a copy of which, is Ext. Ka-4. He recorded the G.D. entry at 7.30 P.M. Showing the arrival of S.O. Balbir Singh alongwith accused Mahavir at the police station carrying the case properties (Ext. Ka-12). 11. Constable Ali Momin P.W. 8 who was also posted at P.S. Sharkot on 24.2.83 has deposed that on that day he brought the dead body of Smt. Kala Devi in a sealed condition from village Mukarpuri to Bijnor and the seal of the dead body remained intact till the post-mortem examination was done. 12. Dr. Vijay Kumar Goel, P.W.9 was posted as Medical Officer at District Hospital, Bijnor, according to him on 25.2.83 he conducted the post-mortem examination of Kela Devi wife of Mahavir which was brought in a sealed condition by constable Sahab Singh and Ali Momin. He found one incised wound 10 cm x 3 cm. 12. Dr. Vijay Kumar Goel, P.W.9 was posted as Medical Officer at District Hospital, Bijnor, according to him on 25.2.83 he conducted the post-mortem examination of Kela Devi wife of Mahavir which was brought in a sealed condition by constable Sahab Singh and Ali Momin. He found one incised wound 10 cm x 3 cm. x scalp cavity deep on forehead near the root of the nose (2) incised wound 2 cm x 1/2 cm near right cheek, (3) incised wound 2.5 cm x 1/2 cm x bone deep on the top of scalp, (4) abrasion 3cm x 1.5 cm over right side face. (5) abrasion on right side of neck (6) incised wound 9 cm. x 3 cm. x cavity deep on skull (7) incised wound 1.5 cm x 1/2 cm. x bone deep over left upper arm of the deceased Kela Devi which were ante mortem injuries and according to him the deceased died on account of shock and hemorrhage due to ante mortem injuries. The post-mortem examination report is Ext. Ka-13. He has stated that the deceased might have died on 24.2.83 at 8 A.M. 13. S.I. Sri Balbir Singh P.W.6, who was posted as S.I. at P.S. Sharkot on 24.2.83, has deposed that he investigated the case, prepared inquest report Ext. Ka-2, sealed the dead body prepared photo of the dead-body, challan, letter to C.M.O. Ext. Ka-5, 6 and 7 and sent the dead body through police constable for post-mortem examination, collected the blood stained and simple soil from the place of incident and prepared memo Ext. Ka-4 for the same and also sent the blood stained clothes soil to the Chemical Examiner, Agra for examination, inspected the place of incident, prepared site plan Ext. Ka-3, recorded the statements of the witnesses and arrested the accused Mahavir from the place of incident and after completing the investigation, submitted the charge sheet Ext. Ka-9 against the accused. He has also stated that he recorded the statement of Smt. Shanti Devi u/s 161 Cr. P.C. a true copy of which is Ext. Ka-10. 14. The accused Mahavir has denied the prosecution allegations in his statement recorded u/s 313 Cr. Ka-9 against the accused. He has also stated that he recorded the statement of Smt. Shanti Devi u/s 161 Cr. P.C. a true copy of which is Ext. Ka-10. 14. The accused Mahavir has denied the prosecution allegations in his statement recorded u/s 313 Cr. P.C. and according to him he was not present at his house at 8 A.M. as he had left the house early in the morning on that day for irrigating his field and when he returned to his house at 3.00 P.M., he was arrested and challaned falsely by the police at the instance of his brothers who want to grap his land since the partition has not yet taken place. 15. Learned counsel for the appellant castigated the impugned judgement and order and submitted that the F.I.R. is ante timed and was prepared after consultation with the police. He further submitted that the post mortem report does not corroborate the oral testimony . He further submitted that, as per prosecution version, only one injury was caused on the forehead of the deceased. However, as per post mortem report seven injuries were found on the body of the deceased and out of them, two injuries are reported to have been caused by hard and blunt object i.e. Lathi. However, as per Panchayatnama only three injuries were found on the body of the deceased. He further submitted that the injuries on forehead could not have been caused from behind. There is no explanation from the side of the prosecution as to how so many injuries were caused to the deceased. As per prosecution version only an axe was used in the commission of the alleged offence but, the post mortem report suggests that , interalia, two injuries were caused by a hard and blunt object like Lathi. Thus, the prosecution story is inconsistent with the medical evidence. 16. It was further submitted that there is no report of the chemical examiner on record to show that the alleged axe was smeared with human blood as the same was not sent for chemical examination. In the absence of this report, it can not be said that the alleged axe was used in the commission of the alleged offence. It was further submitted that in this case an amicus curiae was appointed to conduct the trial on behalf of the accused. In the absence of this report, it can not be said that the alleged axe was used in the commission of the alleged offence. It was further submitted that in this case an amicus curiae was appointed to conduct the trial on behalf of the accused. But, he did not contest the trial properly resulting into conviction of the accused. 17. It was further submitted that no documents were enclosed with the inquest report and the papers were sent subsequently after sending the dead body to the mortuary for conducting post mortem. 18. It was further submitted that the dead body was sent for post mortem at around 2.00 P.M. But, it reached the head quarter at around 6.40 P.M. on 25.2.1983 and the mortuary on 25.2.1983 at 7.30 A.M. There is no justification as to why the dead body reached mortuary after 17 hours although head quarter was only 65 Kms. away from the place of occurrence. In the Panchayatnama it has not been mentioned as to when the proceedings of preparation of the inquest memo were commenced and completed. Even the gist of the F.I.R. was not mentioned in its column no.2 of the inquest memo. Perusal of the inquest memo shows that there were no enclosures attached to the inquest memo. The incident is alleged to have taken place on 24.2.1983 at 8.00 A.M. and the F. I.R. was lodged at 10.00 A.M. The police station was 10-12 Kms. away from the place of the occurrence. The informant is said to have reached the spot after half an hour of the incident and stayed at the place of occurrence more than 20 minutes and thereafter proceeded to the police station on foot and lodged the F.I.R. at 10.00 A.M. The I.O. is stated to have reached the place of occurrence at 12.30 P.M. and came back to the police station at 7.30 P.M. as per G.D. entry. The aforesaid facts and circumstances shows that the FIR was ante timed. Moreover, there was no occasion for the I.O. to have stayed there till late evening although inquest report was prepared before 2.00 P.M and the dead body was sent at 2.00 P.M. There is a great variance in the evidence with regard to the time of sending the dead body to the mortuary. 19. Per contra, Mr. Rajiv Gupta, learned Addl. 19. Per contra, Mr. Rajiv Gupta, learned Addl. Government Advocate, appearing on behalf of the State,while supporting the impugned judgement and order of conviction submitted that the prosecution witnesses proved the case to the hilt and no dent could be caused by the defence in the prosecution case. It was further submitted that it was a brutal murder by the husband of his wife . The appellant was apprehended on the spot along with the offending axe. It was further submitted that the evidence adduced by the prosecution does not suffer from any inconsistency and infirmity. P.W. 1 is an independent witness and there is nothing on record to show that the P.W. 4 was not present on the spot. It was further submitted that the medical evidence also corroborates the testimonies of the witnesses. 20. It was further submitted that since there are eye witness account of the incident, the motive is not important. However, the cause giving motive to the accused to commit the murder is fully proved by the prosecution. It was further submitted that the medical evidence does not completely rule out the possibilities of having sustained the major injuries by the deceased due to the axe blows and as such there is no reason to disbelieve the statements of the prosecution witnesses in this regard. 21. We have heard Mr. Anshul Tiwari holding the brief of Mr. V.P.Srivastava, learned Sr. counsel for the appellant and Mr.S.N. Tripathi, Mr. Rajiv Gupta,for the State and perused the record. 22. We have carefully examined the entire evidence of the prosecution as well as the defence side. The incident is said to have taken place on 24.2.83 at 8.00 A.M. in village Mukarpuri at a distance of six miles from P.S. Sharkot and an F.I.R. of this incident was lodged by Phullu on 24.2.83 at 10 A.M. It has come in the evidence of Phullu P.W.1 and Sheesram P.W.2 that after the incident, Phullu village Chawkidar of Jothima first came to the house of Mahavir and from there he went to the police station to lodge the report of this incident. 23. From perusal of the record, it transpires that the P.W.1, who had lodged the F.I.R. was not the Chaukidar of the village Mukarpuri where the incident had occurred. He was a Chaukidar of another village namely Jothimma. 23. From perusal of the record, it transpires that the P.W.1, who had lodged the F.I.R. was not the Chaukidar of the village Mukarpuri where the incident had occurred. He was a Chaukidar of another village namely Jothimma. In the F.I.R. it has been stated that one Sukhwa,who was the Chaukidar of village Mukarpur, was asked by the informant to keep watch over the dead body while proceeding to the police station for lodging F.I.R. The P.W.1 has deposed that while he was going to ease himself at 8.00 A.M. in the forest, he overheard some women folk of the villlage Mukarpuri talking about the murder of Kela by his husband Mahavir. On hearing this, he proceeded to the place of occurrence. According to P.W. 2 Sheeshram , he stayed there for about 20 minutes. The distance of police station from the place of incident is said to be about 10-12 Kms. According to P.W.1, he had gone to the police station on foot and F. I.R. was lodged at 10 O'clock in the morning. This fact itself shows that the FIR could not have been lodged so promptly at 10 AM as P.W. 1 had reached the place of incident only after half an hour of the incident and then stayed there for 20 minutes and thereafter proceeded to the police station which was 10-12 kms on foot. It is difficult to understand as to how the FIR would be lodged within two hours of the incident and why the P.W. 1, Phullu, who was the Chaukidar of a different village Jothimma, went to the police station for lodging an F.I.R., instead of Sukhwa, who in fact was the Chaukidar of the village Mukarpuri where the incident had taken place. Neither Sukhwa nor any member of the family of Mahavir bothered to go to the police station for lodging the F.I.R. The P.W. 1 Phullu has further very categorically stated in his examination in chief that he did not mention the names of the villagers as the F.I.R. witnesses and he does not even know as to how the names of Nauratan and Jagram figured in the F.I.R. The P.W.1 further stated that accused Mahavir used to reside all alone in the Haveli where the dead body was found lying. He further stated that the Investigating Officer had asked him to stay till 5 .00 P.M. at the police station, so he did not return to the village just after lodging the F.I.R. However, the P.W. 6, I.O. Balwir has stated on the contrary that the P.W. 1 after lodging the FIR had returned to the village. 24. P.W.2, Sheesh Ram, who happened to be the real younger brother of the appellant was having strained relations with the appellant no. 2 deposed that at the time of the incident he was engaged in providing fodder to the cattle in a different portion of the house. This fact itself shows that when the alleged incident took place, he was not present at the scene of the occurrence. According to him, he reached the spot only when he heard the shouts. As such, in view of his own admission, it can not be said that he had seen the appellant assaulting his wife as he reached the spot after hearing the shouts. 25. We now turn to yet another important aspect of the matter which requires focused attention of this court. 26. According to the prosecution, the deceased was murdered only for the reason that she was cooking food for the entire family. This part of the prosecution story inspires no confidence because no body would kill his wife for such a petty reason i.e simply for cooking food for the entire family of the husband including his brothers on completion of three months of the death of his father. On such solemn occasions, no normal man could fly into a rage on such trifling issue and kill his wife as alleged by the prosecution. 27. It is also notable that according to P.W. 1, the accused appellant after inflicting an axe blow on his wife threw away his axe and did not make any effort to escape or put any resistance while he was being caught hold of by the P.W. 2 Sheeshram or later on when being tied to a tree with a rope by Sheeshram with the help of his cousin Balbir ( P.W. 3). It is difficult to believe that the appellant, who was carrying an axe would meekly surrender without any resistance before his brother P.W.2 Sheeshram with whom he was having inimical relations. It is difficult to believe that the appellant, who was carrying an axe would meekly surrender without any resistance before his brother P.W.2 Sheeshram with whom he was having inimical relations. According to the own version of P.W. 2, at the time of the incident , he was so petrified that he did not even try to pick up the axe lying there as he apprehended that he might be killed by the appellant. In such a situation it appears improbable that P.W. 2 Sheesh Ram would try to catch hold of the appellant. The story propounded by the P.W. 2 that the appellant did not make any attempt to escape from his clutches again does not inspire any confidence about the reliability of the prosecution case as this conduct of the appellant is against the normal human behaviour and therefore is unbelievable, and unacceptable and does not appeal to reason. It is highly improbable that the appellant after killing his wife would throw away the axe on the spot and not put any resistance while he was being caught hold of by his brother or when being tied to a tree, especially when he himself was carrying a lethal weapon i.e. 'Kulhari' with him. 29. It is highly improbable that the appellant after killing his wife would throw away the axe on the spot and not put any resistance while he was being caught hold of by his brother or when being tied to a tree, especially when he himself was carrying a lethal weapon i.e. 'Kulhari' with him. 29. It would be useful to reproduce para 3 of the testimony of P.W. 1 in this regard which is as follows: ^^3- esjh ekWa 'kkfUrnsoh vkt vkbZ gqbZ gSaA cyohj flag] ukSjru vkSj txjke xokg Hkh vkt vnkyr vk;s gq, gSaA pkSdhnkj QqYyw gekjs egkohj dks jLlh ls cka/kus ds djhc vk/kk ?kaVs ckn gekjs ?kj igqWapk FkkA ftl le; dh ?kVuk gS ml le; eSa vius ?kj ds nwljs fgLls esa tkuojksa dks pkjk ns jgk FkkA geus egkohj dks ekjk ihVk ugha FkkA vkSj u blus ge ykssxksa ls NwVus dh dksf'k'k dh cfYd ;g dg jgk Fkk fd eq>s NksM nks eSa dgha tkus dk ughaA geus tc bls idM+k blls igys og ekWa ds ihNs Hkkxk FkkA vkSj ml le; blus gkFk esa dqYgkM+h ugha ys jD[kh FkhA egkohj us eq>s ekjus dh ;k /kedkus dh dksbZ dksf'k'k ugha dhA tks dqYgkMh egkohj us Qsad nh Fkh og u eSaus mBkbZ vkSj u eSaus mBkus dh dksf'k'k dhA ml le; eq>s Mj yxk fd dgha egkohj eq>s Hkh u ekj nsA ijUrq fQj Hkh eSaus ml dqYgkM+h dks ogkWa ls gVkus ;k mBkus dh dksf'k'k ugha dhA egkohj us ,d dqYgkMh dsyk ds eqWg ij esjs lkeus ekjh FkhA eSaus dsyk ds ,d gh pksV ns[kh FkhA tc njksxk th ¼vkbZ0vks0½ ekSds ij vk;s vkSj dk;Zokgh dh eSa ml le; ogha ij jgkA** 30. At this stage, it would also be fruitful to refer to the testimony of P.W. 3, who happened to be a cousin of the appellant. Admittedly, P.W. 3, Balveer was living separately in his house. According to him, he was residing about 50 paces away from the house of Mahavir. Admittedly, he was not present at the time when axe blow was allegedly inflicted by the appellant on his wife. According to him, he reached the spot after hearing the cries of Shanti Devi, mother of the appellant. Further, according to him when he reached there P.W. 1 Phulloo had also arrived there. Admittedly, he was not present at the time when axe blow was allegedly inflicted by the appellant on his wife. According to him, he reached the spot after hearing the cries of Shanti Devi, mother of the appellant. Further, according to him when he reached there P.W. 1 Phulloo had also arrived there. According to P.W. 1, Phullu Chaukidar, he reached the spot after half an hour of the incident. Such incident takes place in a fraction of minutes and if the version of the P.W. 2 that he caught hold of the appellant immediately after the incident is believed to be true, the P.W. 3, who reached the spot later on, could not have assisted the P.W. 2, Sheeshram in catching hold of the appellant . Thus, the testimony of P.W. 3 that when he reached the spot he saw Sheeshram catching hold of the appellant also does not appear to be believable. 31. It is also notable that P.W. 3, Balveer has stated that the dead body of the deceased was taken away by the P.W.6 I.O. alongwith him and the I.O. had left the place of occurrence at 4.00 P.M. However, according to the P.W. 2 Sheeshram's body was taken by him and two police constables to the police station after the I.O. P.W. 6 had left the spot at 5.30 P.M but they reached the police station at 9.00 PM in the night and on the next morning from the police station they left for Bijnor along with the dead body. 32. P.W. 4, Shanti Devi who is mother of the appellant has not supported the prosecution story, as such she was declared hostile. She in her testimony has very clearly stated that the appellant had left the house early in the morning on the fateful day to ease himself and to irrigate his fields. At the time of incident she was not present in the house and had gone to the shop to purchase Ghee and when she came back home she found her daughter in law dead. She has further denied the story of prosecution that Kela was murdered by the appellant since she was cooking food for the entire family. She has further stated that at the time of the incident, P.W. 2 Sheeshram was sleeping and he reached the spot after hearing her hue and cry. She has further denied the story of prosecution that Kela was murdered by the appellant since she was cooking food for the entire family. She has further stated that at the time of the incident, P.W. 2 Sheeshram was sleeping and he reached the spot after hearing her hue and cry. She has categorically denied that the appellant had committed any murder. She has further stated that the P.W. 2 Sheeshram was inimical with the appellant after the death of her husband. No partition of the agricultural property had taken place amongst her sons after the death of her husband. She has further stated that the appellant was living separately from his brother. She denied having seen any axe on the spot or the appellant being tied to the tree. As the P.W. 4, Shanti Devi has been declared hostile, there was no other witness who actually witnessed the manner of assault. The P.W. 2, Sheeshram, as per his own statement, was giving fodder to the cattle in a different portion of his house. Since he reached the place of incident after hearing the hue and cry of her mother, there was no possibility of his actually witnessing the assault allegedly made by the appellant. It has come on record that the brothers of the appellant were living separately in different portions of the house and no partition of the agricultural land had taken place amongst them after the death of their father three months back and that the the appellant Mahavir was not having cordial relation with his brothers. 33. In the present case, ocular testimony and medical evidence are inconsistent with each other. According to the P.W. 2, Sheeshram, at the time of incident the deceased was facing north while she was cooking food and the appellant, who was standing behind her, inflicted an axe blow on her. Injury report shows that she had sustained injury on her forehead, face etc. The said injury could not be caused from behind by the appellant. This part of the prosecution story that the appellant caused injury from behind also does not inspire any confidence. 34. Injury report shows that she had sustained injury on her forehead, face etc. The said injury could not be caused from behind by the appellant. This part of the prosecution story that the appellant caused injury from behind also does not inspire any confidence. 34. The record also reveals that the alleged axe was smeared with human blood but the same was not sent for chemical examination and in the absence of such report, it can not be ascertained that the alleged axe was used in the commission of the alleged offence. 35. P.W. 9, Dr. V. K. Goyal, who conducted the post mortem report, deposed that he had received two papers of Panchayatnama at the time of post mortem and in the Panchayatnama only three injuries were mentioned. He further deposed that the death of the deceased may have occurred at about 8.00 A.M. on 24.2.1983. He further deposed that injuries no.4 and 5 were possible to have been caused by hard blunt object like Lathi and injury no. 1 could not be caused from behind. 36. For ready reference, the relevant portion of the deposition made by the said Doctor in para 4 of the said deposition is extracted below: ^^4- iapk;r ukesa ds nks ipsZ eq.s iksLVekVZe ds le; izkIr gq, FksA iksLVekVZe djus ls iwoZ eSaus tks dkxtkr eq>s feys Fks lc ns[k fy;s FksA iapk;r ukesa dks eSaus ns[kk FkkA mlesa rhu pksVsa fy[kh FkhA QksVks yk'k ij Hkh rhu gh pksVs vafdr gSA pksV ua- 4 o 5 fdlh dqUMvkys elyu ykBh ls vkuk lEHko gSA pksV ua- 2] 3 vkSj \ ,sls gfFk;kj ls vk ldrh gS ftldk Qy de ls de 2&2&1@2 lseh yEck gksA ;fn ekjus okyk e`rd ds fcydqy ihns [kM+k gks vkSj e`rd lkeus dh vksj ;kfu ekjus okys dh rjQ u gks rks pksV ua- 1 ugha vk ldrhA e`rd dh ekSr fnukad 24-2-83 dks lqcg 4 cts Hkh gksuk lEHko gSA eSaus viuh fjiksVZ e`rd ds gkFkksa ds fdlh pht ls euk gksuk ugha fy[kk gS blfy;s eSa ugha dg ldrk fd mlds gkFk fdlh pht ls lus gq, Fks ;k ughaA vxj e`rd ds gkFk lus gq, gksrs rks eSa t:j fy[krkA** 37. The record also reveals that post mortem report is not consistent with oral testimonies because, as per the testimonies of the alleged witnesses only one injury was caused on the forehead/cheeks of the deceased. However, as per post mortem report seven injuries were found on the body of the deceased and out of them, according to the Doctor, two injuries were caused by hard and blunt object i.e. Lathi. According to Panchayatnama three injuries were found on the body of the deceased. The injuries on forehead could not have been caused from behind by the appellant who, according to the alleged witnesses, inflicted axe blow on the deceased from behind. There is no explanation from the side of the prosecution as to how so many injuries were caused to the deceased when there is consistent ocular testimony that only a single axe blow was inflicted in the commission of the alleged offence. No allegation of causing any injury by lathi has been made,but, the post mortem report suggests that, interalia, two injuries were caused by a hard and blunt object like Lathi. No explanation in this regard has been given. Thus,the prosecution story is inconsistent with the medical evidence. 38. There are material contradictions and inconsistencies in the statements of Sheeshram (P.W. 2), Balbir (P.W.3) and Balbir Singh ( P.W. 6) and other witnesses, they also contradicted the version given by each other on material particulars. It is noteable that P.W. 2 in his testimony has stated that the I.O. ( P.W. 6) had left the spot at 5.30 P.M. And thereafter he (Sheeshram) along with two police constables took the dead body of the deceased to the police station, where they reached at about 9 O' clock. In the next morning, they took the dead body to Bijnor for post mortem. On the other hand, P.W. 3 (Balbir) has categorically stated that the I.O. P.W. 6 had taken the dead body to the police station at 4 O' clock. However, Rameshwar Prasad (P.W. 5) has stated that after preparing the inquest memo at 2-2.30 P.M., the I.O.(P.W. 6) went to the police station and the dead body was sent later on to the police station through the constables and the I.O. had not taken the dead body along with him to the police station. However, Rameshwar Prasad (P.W. 5) has stated that after preparing the inquest memo at 2-2.30 P.M., the I.O.(P.W. 6) went to the police station and the dead body was sent later on to the police station through the constables and the I.O. had not taken the dead body along with him to the police station. The I.O. ( P.W. 6) in his testimony has given a different version stating that he entrusted the dead body to the constables Satyavir (P.W.7 and Ali Momim ( P.W. 8) for taking it to for post mortem and he proceeded to the police station along with the accused appellant Mahavir in custody. From perusal of the statement of Satyavir Singh ( P.W. 7), it is evident that the dead body of the deceased was not taken from the spot to the police station but it was taken to the mortuary straightway and it reached the next morning after 17 hours.Thus, there are material contradictions and discrepancies with regard to taking of the dead body from the spot to the police station , as according to some witnesses namely P.W. 2 Sheeshram, P.W. 3 Balbir the dead body was taken to the police station but on the other hand, P.W.6 IO, P.W. 7 Satyavir and P.W. 8 Ali Mohd. have stated that the dead body was taken to the police headquarter after preparing inquest memo at 2 O'clock. The dead body reached the mortuary the next morning after more than 17 hours. Thus, such material contradictions further creates doubt and deep suspicion in the prosecution story. From the perusal of the inquest memo, it is clearly evident that that the documents were not enclosed along with the inquest report and the documents appear to have been sent the next morning. Thus the aforesaid facts creates strong dent in the prosecution story and it appears that the prosecution has suppressed the origin and genesis of the occurrence and has thus not presented the true version. Thus the aforesaid facts creates strong dent in the prosecution story and it appears that the prosecution has suppressed the origin and genesis of the occurrence and has thus not presented the true version. 39.There is no explanation as to why the I.O. P.W. 6 (Balbir Singh) reached the police station at 7.30 P.M. Along with the dead body when, according to other witnesses he had left the place of occurrence after preparing inquest memo in the afternoon i.e. between 2-2.30 P.M. 40.The record further reveals that one week before the incident the son of the appellant had died, as such the appellant was issue less at the time of the incident, therefore, the possibility of implicating him in the present case in order to usurp his landed property by his brothers after the death of his father can not be ruled out. The record also reveals that he had strained relations with his brothers after the death of his father and no partition with regard to landed property had taken place. 41.There is no material evidence to establish that the deceased was cooking at the time of incident as neither utensils nor vegetables which were being allegedly cooked or the kneaded flour (dough) was recovered and fard of the aforesaid items were not prepared. Even the doctor conducting the post mortem in his testimony has specifically stated that the palms of the deceased were not smeared with kneaded flour. This vital omission on the part of the prosecution was again sufficient to raise an eye brow about the claim of the prosecution that she was killed because she was cooking food against the wishes of her husband (appellant). 42.Considering the facts and circumstances of the case, we are of the considered opinion that the view taken by the Court below while convicting the appellant Mahavir is palpably wrong and the findings recorded by the Court below are perverse, erroneous and can not stand the scrutiny of law. The judgment passed by the trial court is based on a complete misreading of the case and misconception of the legal position relevant to the matter and has not considered the evidence on record in right perspective. The prosecution has not been able to prove the case beyond doubt. In our considered opinion the reasons given by the Trial Court are not sufficient to convict the appellant. 43. The prosecution has not been able to prove the case beyond doubt. In our considered opinion the reasons given by the Trial Court are not sufficient to convict the appellant. 43. In the facts and circumstances of the case and the evidence led by the parties renders the origin and genesis of the occurrence doubtful and as such the appellant is entitled to benefit of doubt and acquittal. 44. The appeal having merit is liable to be allowed. 45. On the basis of aforesaid discussion, in our considered opinion and also applying the rule of caution, conviction of the appellant namely Mahavir can not be sustained and is liable to be set-aside and in the circumstances of the case, the appellant deserves acquittal. 46. Consequently, the appeal is allowed. 47. The impugned judgement and order dated 5.12.1983 passed by Sri P.C. Joshi III Addl. Sessions Judge,Bijnor in Session Trial No. 123 of 1983 convicting the appellant Mahavir for the offences punishable under Section 302 I.P.C. and sentencing him to undergo imprisonment for life for the said offence is set-aside and the appellant is acquitted of the charges levelled against him and his conviction and sentence is hereby quashed. The appellant Mahabir Singh is on bail. He need not to surrender. His personal and surety bonds are hereby cancelled and sureties are discharged from his liability. 48. Let a copy of this judgment along with the trial court record be sent to the court concerned for compliance.