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2016 DIGILAW 3652 (ALL)

MATADIN MEHATAR v. STATE OF U. P.

2016-11-08

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

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JUDGMENT By the Court.—The arguments of this appeal was concluded on 8.11.2016, when, following order was passed by us: Heard Shri Anirudh Upadhyay, learned counsel for the appellants Nos. 2 and 3-Makhna and Smt. Chunbadiya @ Chunbadi and Shri Saghir Ahmad and Sri J.K. Upadhyay, learned A.G.As. for the State and perused the record. Learned counsel for the appellants submits that appellant No. 1 Matadin has died, therefore, appeal against him may be abated. In view of above, appeal against appellant No. 1 Matadin stands abated. We will give reasons later but we make the operative order now. The appeal is allowed. The impugned judgement and order dated 22.2.1995 passed by the Sessions Judge, Banda in Sessions Trial No. 9 of 1994; State v. Matadin and others, convicting the appellants and sentencing them to life imprisonment under Section 302/34 IPC is hereby set aside. The appellants are acquitted of all the charges framed against them. Appellant No. 3-Smt. Chunbadiya @ Chunbadi is in jail, she shall be released forthwith unless and until she is wanted in any other case. Since the appellant No. 2-Makhna is on bail, his bail bonds are cancelled and sureties are discharged. There shall, however, be no order as to cost. Here are the reasons : 2. The instant criminal appeal is directed against judgment and order of conviction dated 22.2.1995 passed by Sessions Judge, Banda in Sessions Trial Number 9/1994 State v. Matadin and others, whereby the present/surviving appellants Makhna and Smt. Chunbadiya @ Chunbadi have been sentenced to life imprisonment under Section 302/34 IPC. 3. Smt. Dulariya the informant lodged written report at police outpost Khurhand, District Banda at 5:30 p.m. on 06/07/1993 regarding the incident in question that took place the very same day at 3:30 p.m. at village Makri, 4 kms. away from Police out-post Khurhand (Police station-Girwan) with allegations that she and accused Matadin are neighbours and their houses are located near to each other’s house. Today, on 06/07/1993, it was around 3:30 p.m., Matadin, his son Makhna and Bhabhi Chunbadiya @ Chunbadi were constructing wall towards the place which is left in between their houses used as drainage and they tried to extend and construct the wall encroaching upon land of the first informant, which was objected by the first informant’s husband, which infuriated Matadin, his son Makhnna and Bhabhi Chunbadiya @ Chunbadi. They started abusing. They started abusing. Informant’s husband asked them not to extend abuses. Amid such hue and cry, the first informant and villagers Ramdin, Bhaiyadin and informant’s daughter Bhuri alongwith others arrived on the spot. They also asked Matadin not to behave in such a manner. The accused persons lost temper and all the three with intention to kill, beat the informant’s husband with stone due to which he died on the spot. All the three accused persons made their escape good towards village Nai. It was also stated that the dead body was lying on the spot. Report be lodged and action be taken. This written report is Exhibit Ka-1. 4. Contents of this written report were taken down in the concerned check FIR at Crime No. 58 of 1993 & 168 of 1993, under Sections 302/504 IPC and under Sections 302/504 IPC, respectively at police out-post-Khurhand, Police Station-Girwan, District Banda on 6.7.1993 at 17.30 hours. Check FIR is Exhibit Ka-3. Relevant entries were also made in the concerned GD No. 12 dated 6.7.1993, which is Exhibit Ka-13 on record and case was registered against the accused persons under aforesaid Sections of IPC at aforesaid case crime number. 5. As soon as the case was registered, the Investigating Officer Sri Krishna Gupta P.W.-4 swung into action and proceeded towards the spot on 6.7.1993 at around 6:30 p.m. and held inquest of deceased Bholi, which is marked Exhibit Ka-4 and concurred with the opinion of inquest witnesses that the dead body of deceased Bholi be send to post-mortem examination for ascertaining real cause of death and in the process, prepared relevant papers-like-challan dead body, photonash, letter to R.I. and letter to C.M.S. Banda and memo specimen seal, which papers are Exhibit Ka-5 to Ka-10. Post-mortem Report on the cadaver of deceased Bholi was conducted on 7.7.1993 at 3 p.m. by Dr. A.K. Bhardwaj, wherein, he noted the following ante-mortem injuries on the cadaver of deceased : (1) Abraided contusion 4 cm x 3 cm over top of left shoulder. (2) Contusion 6 cm x 5 cm on front sides of neck below hyoid bone. On section haematoma was present on both sides of laranx. Mucosa inside is congested. Tracheal rings fractured. Left cornal of hyoid bone fractured. Larotids not ruptured. 6. (2) Contusion 6 cm x 5 cm on front sides of neck below hyoid bone. On section haematoma was present on both sides of laranx. Mucosa inside is congested. Tracheal rings fractured. Left cornal of hyoid bone fractured. Larotids not ruptured. 6. The duration was stated to be about one day and according to the report the death was caused as a result of asphyxia due to throttling. Post-mortem Report is Exhibit Ka-2. 7. The Investigating Officer also recorded statement of various persons, prepared memo of recovery of stone, which was allegedly used for committing murder of deceased Bholi, which is Exhibit Ka-10. He prepared the site plan, which is Exhibit Ka-11. After completing investigation, the Investigating Officer filed charge-sheet under Section 302 IPC at Case Crime No. 168 of 1993 against the accused persons. 8. As a sequel to it, the case was committed to the Court of Sessions where the accused persons were heard on point of charge and the learned Sessions Judge was satisfied with the prima facie case under Section 302 IPC, accordingly, he framed charge under Sections 302 and 302/34 IPC against the accused persons. Charges were read over and explained to the accused persons, who denied the charges and opted for trial. 9. The prosecution in order to prove guilt of the accused examined as many as four prosecution witnesses. Brief reference of the same is ut infra : 10. Dulariya PW-1 is the first informant. She claims herself to be an eye-witness of the occurrence. 11. Bhaiyadin PW-2 is also witness of fact and claims himself to be an eye-witness of the occurrence. 12. Dr. A.K. Bhardwaj PW-3 has conducted post-mortem examination of deceased Bholi on 7.7.1993 and has produced the same as Exhibit Ka-2. 13. Sri Krishna Gupta PW-4 is the Investigating Officer. He has conducted investigation in this case and has filed charge-sheet, Exhibit Ka 12 and he has also described the various steps he took in completing the investigation. He has specifically stated that on 6.7.1993, he was posted at Police Station-Girwan (police outpost Khurhand within Police Station Girwan). He was also in-charge of this outpost-Khurhand. This witness has also proved the relevant entries made in the check FIR by Constable Moharir-Har Narayan and entries made in the general diary, whereby case was registered against the accused persons, as Exhibit Ka-3 and Ka-13, respectively. 14. He was also in-charge of this outpost-Khurhand. This witness has also proved the relevant entries made in the check FIR by Constable Moharir-Har Narayan and entries made in the general diary, whereby case was registered against the accused persons, as Exhibit Ka-3 and Ka-13, respectively. 14. No further evidence was adduced by the prosecution, therefore, evidence for the prosecution was closed and statement of the accused persons was recorded under Section 313 Cr.P.C., wherein accused persons claimed to be innocent and have been falsely implicated on account of enmity. They also stated that the deceased was flooring his hut by baked mud tiles and in the process, he fell down and died. 15. The defence did not lead any evidence. 16. It has been vehemently contended on behalf of the appellants that the present appellants are innocent and they have been falsely implicated in this case on account of enmity. The deceased himself was the aggressor and he was trying to raise construction on the land in the possession of the accused persons and he was constructing his wall and raising his tiled roof and in the process, he himself fell down and died. No one saw the occurrence as alleged. All the prosecution witnesses of fact-Dulariya PW-1 and Bhaiyadin PW-2 are interested witnesses. They did not see the incident, as claimed by them. Their testimony on the whole is full of contradictions and the same does not inspire confidence. Bare perusal of their testimony establishes fact that they did not see the occurrence. The manner and style of incident has not been proved by the testimony of the prosecution witnesses. Even the investigation was conducted by the Investigating Officer in a casual manner and the investigation was not fair. The case of the prosecution has not been proved beyond reasonable doubt. The learned trial Court while appreciating facts and evidence of the case, did not take wholesome view of the matter, instead it was guided by parochial consideration and took narrow view of the case and erroneously returned finding of conviction. 17. Per contra, the learned AGA has submitted that the case of the prosecution is proved to the hilt in a consistent manner. Testimony of prosecution witnesses is clinching, consistent and proves the incident in conspicuous manner regarding which no doubt can be raised. The very presence of the prosecution witnesses on the spot is natural. 17. Per contra, the learned AGA has submitted that the case of the prosecution is proved to the hilt in a consistent manner. Testimony of prosecution witnesses is clinching, consistent and proves the incident in conspicuous manner regarding which no doubt can be raised. The very presence of the prosecution witnesses on the spot is natural. It is not the cardinal principle of criminal jurisprudence that testimony of relatives as witness, cannot be taken into consideration, if the testimony on the whole, is found to be creditworthy and consistent. There is no material contradiction in the testimony of the prosecution witnesses of fact and the investigation done is fair one and transparent. 18. We have also considered the above submissions. 19. On the basis of the allegations made in the First Information Report and on the basis of the rival contentions, the moot point that arises for determination of this appeal relates to the fact as to whether the prosecution has been able to prove charge under Section 302/34 IPC against the present surviving appellants and the incident was, in fact, witnessed by the prosecution witnesses Dulariya PW-1 and Bhaiyadin PW-2, respectively? 20. Before we proceed further with this case on its merit, it would be appropriate and relevant to take note of contents of the First Information Report. The incident allegedly took place around 3:30 p.m. on 6.7.1993 at village-Makari and the matter was reported at police-outpost-Khurhand within Police Station Girwan at 5:30 p.m. the very same day. It was alleged in the report that it was around 3:30 p.m. Matadin, his son Makhna and Bhabhi Chunbadiya @ Chunbadi were raising/constructing wall, extending its limit far beyond and trespassing on informant’s land. This was objected to by informant’s husband Bholi, which angered the accused persons and they extended vituperation on the informant side, whereupon, amidst hue and cry the first informant alongwith her daughter Bhuri and a number of villagers arrived on the spot, then they saw the culprits-assaulting Bholi with stone causing his death. 21. In the backdrop of aforesaid allegations, it is obvious that the incidence rooted in some dispute regarding construction being raised by the accused side on the spot. We have before us testimony of two witnesses of fact regarding the occurrence. 22. 21. In the backdrop of aforesaid allegations, it is obvious that the incidence rooted in some dispute regarding construction being raised by the accused side on the spot. We have before us testimony of two witnesses of fact regarding the occurrence. 22. Dulariya PW-1, the first informant has stated in her examination-in-chief that her husband was killed around 1.00 to 1.30 p.m. by the accused persons. Houses of first informant and the accused persons are situated near to each other and the accused persons were trying to forcibly occupy wall of the first informant’s house. This act was objected to and resisted by the informant’s husband, which created lot of anguish for the accused persons and they, with intention to kill informant’s husband, assaulted him with stone, due to which, her husband died on the spot. This witness claims to have seen the occurrence when she arrived on the spot after hearing hue and cry raised on the spot. She further states that she got scribed the report with Ram Pratap and then she impressed her thumb impression on the report and has proved the report, as Exhibit Ka-1. She has been cross-examined by the defence, wherein she has testified that she arrived on the spot from her door lying at the side of Karu Baba. The place of occurrence is not visible from Karu Baba Dev’s place. She has also stated in her cross-examination that no other house is located on the spot except houses of first informant and the accused persons. The place of occurrence lies in an enclosure and is visible from only certain sides and it is a narrow strip of land. She has also stated that the place where the deceased was killed belongs to Matadin (accused). At this stage, it would be appropriate to refer testimony of Bhaiyadin PW-2. The place of occurrence lies in an enclosure and is visible from only certain sides and it is a narrow strip of land. She has also stated that the place where the deceased was killed belongs to Matadin (accused). At this stage, it would be appropriate to refer testimony of Bhaiyadin PW-2. No doubt he has supported the prosecution version as described in the First Information Report and in the testimony of Dulariya PW-1; But he has described commencement of the incident and commission of the offence in his own style from its beginning to the end as if he watched the entire incident, however, falsity of his claim and testimony to that extent regarding occurrence stands exposed by his testimony emerging from his cross-examination on page 22 of the paper book when he says that when he arrived on the spot, he saw the accused persons running away from the scene at a gap of 10 meters. This specific piece of testimony belies fact that Bhaiyadin PW-2 ever saw the occurrence in its entirety as stated in his examination-in -chief, therefore, his testimony on the whole regarding the manner and style of occurrence, cannot be taken to be trustworthy as such his testimony is not reliable and for this specific reason, the same is discarded by us. 23. Now, in so far as testimony of Dulariya PW-1 on the point of occurrence is concerned, her testimony reflects that the place where deceased was murdered belonged to the accused persons. How the deceased arrived or was taken at this place, has not been described by the prosecution witnesses. Nor any worthy circumstance has been brought forth proving this specific fact. She further states in Paragraph No. 15 of her testimony appearing on Page No. 18 of the Paper Book in her cross-examination that she saw her husband not only lying alone while being assaulted by Matadin, but she also saw Chunbadiya @ Chunbadi and Makhna present over there and when this witness arrived on the spot, all the accused persons fled away, although she has specifically stated that the stone was hit on the neck and chest of the deceased by accused Matadin. This specific testimony regarding the manner of occurrence gives rise to two hypotheses; first, that Matadin alone was assaulting the deceased, who was lying on the ground and Chunbadiya @ Chunbadi and Makhna-the present surviving appellants-were present over there. It means the version of incident as given by this witness in her examination-in-chief that Chunbadiya @ Chunbadi and Makhna had tightened grip on legs and hands of the deceased, is improved testimony and exaggeration to that extent because in the cross-examination, she ascribes only presence of the present appellants on the spot and no specific role or participation in the crime can be inferred from her testimony appearing in her cross-examination under para No. 15 of page 18 of the paper book. The point that engages our attention concerns with facts that the place of murder is admittedly the place belonging to the accused persons. Here, presence of Chunbadiya @ Chunbadi and Makhna will ipso facto not create prevalence of any common intention being shared by all the accused persons on the spot and cannot be imputed to the magnitude that the offence was being committed in furtherance of common intention of all. Here, mere presence of Chunbadiya @ Chunbadi and Makhna in the absence of any specific participation or in shape of any aid given by them in the commission of the offence, will not fall within the purview of Section 34 of the Indian Penal Code. 24. Common intention is to be gathered from various angles in a given case. If overt act is assigned then it becomes easier to infer existence of common intention. But common intention requires a pre-oriented plan and acting in pursuance to the plan, thus common intention must exist prior to the commission of the act of it may come into existence on the spot itself in a point of time. But here testimony of PW-1 itself is not sufficient to attract ingredients of common intention as defined under Section 34 of the Indian Penal Code. 25. On the wholesome view of the testimony of Dulariya PW-1, it is obvious that the two surviving appellants-Chunbadiya @ Chunbadi and Makhna though present on the spot - remained passive and did not contribute overtly or covertly towards the conviction of the crime. 25. On the wholesome view of the testimony of Dulariya PW-1, it is obvious that the two surviving appellants-Chunbadiya @ Chunbadi and Makhna though present on the spot - remained passive and did not contribute overtly or covertly towards the conviction of the crime. No doubt, it was accused Matadin, who alone has been assigned specific role of assaulting deceased Bholi by giving blow with stone on his chest and neck and that way it can be easily inferred that it was Matadin who alone is responsible for this occurrence (murder) and present appellants did not share any common intention to commit the crime. Therefore, no vicarious liability can be imputed on them. 26. In this backdrop of the factual testimony of occurrence, and under circumstances of this case, we find that the learned trial Court while appreciating and evaluating evidence on record, vis-a-vis, circumstances of the case misread both facts and evidence and recorded erroneous findings of conviction which is not sustainable in the eyes of law and accordingly, we disapprove the same. Grounds urged in support of appeal carry force and are sustained. 27. Consequently, this appeal is allowed and the impugned judgment and order dated 22.2.1995 passed by the Sessions Judge, Banda in Sessions Trial No. 9 of 1994; State v. Matadin and others, convicting the appellants under Section 302/34 IPC and sentencing them to life imprisonment is hereby set aside. 28. We have already observed in our operative portion that Smt. Chunbadiya @ Chunbadi, who is in jail, shall be released forthwith unless she is involved in any other case. Makhna is already on bail, therefore, no observation is being made regarding his release except one that both the appellants shall ensure compliance as mandated under Section 437-A Cr.P.C. by furnishing bonds. 29. Let a copy of this order be certified to the concerned trial Court for its intimation and follow up action.