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2017 DIGILAW 1077 (ALL)

MATAROO @ GANESH SHANKER v. STATE OF U. P.

2017-04-21

KRISHNA MURARI, RAVINDRA NATH KAKKAR

body2017
JUDGMENT : Krishna Murari, J. 1. This criminal appeal has been filed against the Judgment and order dated 16.4.1983 passed by learned I-Additional District and Sessions Judge, Varanasi whereby the accused-appellants Mataru @ Ganesh Shanker, Munnu, Ashok, Sapan Bengali and Babu Lal have been convicted and sentenced to six months RI under section 147 IPC and life imprisonment under sections 302/149 IPC. 2. The prosecution story in brief is as follows:- The first informant Pappu son of Ghurahu Yadav lodged the first information report on 5.6.1979 stating therein that at the time of incident he was present at the photo shop of Bachcha Singh son of Damodar Singh. The shop is situated in the house of Ram Sharan Mahant in Vishwanath Gali. At about 2.30 P.M. he saw that Pheku Sardar was coming from Kalika Gali and when he reached at the corner of the gali which is in front of the photo shop, accused Mataru, Ashok, Munnu, Pappu, Babu Lal and Sapan Bengali who were already present in Vishwanath Gali stopped Pheku Sardar and altercation took place between them with regard to the pairvi being done by him against Sheo Sardar. Accused persons over powered Pheku Sardar and pushed him to ground and attacked him with legs, fists and stone. On alarm being raised by Pheku Sardar, Sri Sheonath Upadhyay and other reached there. Sohan who was also present on the spot, went away from the place of occurrence towards south of Kalika Gali at the time when Pheku Sardar fell down and all the named accused persons were continuously giving blow to Pheku Sardar till he died on the spot. It is also alleged in the FIR that accused Ashok said that since deceased Pheku Sardar had died, information of his death be communicated to Sheo Sardar and Bholey Sardar through Ganesh Chaubey and Vijay Bhaiya that their entrusted task has been done. Thereafter accused persons escaped towards Saraswati Phatak. The reason of the murder of Pheku Sardar is alleged to be that accused persons are member of Sheo Sardar party and Pheku Sardar was doing pairvi against Sheo Sardar in a murder case and because of this enmity the murder of Pheku Sardar has been committed after hatching the conspiracy with Sheo Sardar and Bholey Sardar. The reason of the murder of Pheku Sardar is alleged to be that accused persons are member of Sheo Sardar party and Pheku Sardar was doing pairvi against Sheo Sardar in a murder case and because of this enmity the murder of Pheku Sardar has been committed after hatching the conspiracy with Sheo Sardar and Bholey Sardar. On the basis of the written report (Exhibit Ka-3) chik FIR was prepared on 5.6.1979 at 3.20 P.M. at police station Dasaswamedh. The distance between place of incident and police station is alleged to be 2 ½ furlongs. After registration of the F.I.R. investigation was handed over to Jagannath Singh, P.W. 6 who reached the place of occurrence, prepared the inquest report of the dead body and sent the same for post mortem examination. He interrogated the witnesses, inspected the spot and prepared sketch map (Exhibit Ka-11), thereafter on 9.6.1979 Sri Ram Pal Singh, P.W. 7 took up the investigation of the case, he interrogated the witnesses, recorded their statements under section 161 Cr.P.C. and after completing the investigation submitted the charge sheet (Exhibit Ka-12) against accused persons. 3. The learned trial Judge framed the charges against all the accused persons under section 147 and section 302 IPC read with section 149 IPC. Accused pleaded not guilty and claimed for trial. 4. The prosecution examined Pappu P.W. 3, who is also informant of the case, Sheonath Upadhyay P.W. 4 and Sohan P.W. 5 who were eye witnesses. Dr. N.S. Sharma P.W. 1 who conducted the post mortem examination, Sheo Dutt Vishwakarma P.W. 2 who took the dead body for post mortem examination, Jagannath P.W. 6 and Ram Pal Singh P.W. 7 the two Investigating Officers were also examined. 5. P.W. 1 Dr. N.S. Sharma conducted the post mortem examination of the corpus of Pheku Sardar on 6.6.1979 at 4.45 P.M. As per the post mortem report probable age of the deceased was 45 years and of an average built. Rigor Mortis was present on the lower limb. Decomposition had started. There was greenish discolouration over the abdomen. Eyes were closed. There was bleeding from the nose and mouth. Doctor opined the probable time of death was 24 hours. 6. The doctor found the following ante mortem injuries on the body of the deceased. (1) Lacerated wound 1 ½ cm x ½ cm x skin deep on the left eye lower portion. Eyes were closed. There was bleeding from the nose and mouth. Doctor opined the probable time of death was 24 hours. 6. The doctor found the following ante mortem injuries on the body of the deceased. (1) Lacerated wound 1 ½ cm x ½ cm x skin deep on the left eye lower portion. (2) Multiple abrasions in an area 5 cm x 3 cm on the left side of face just below left eye. (3) Lacerated wound 1½ cm x ½ cm x skin deep on the left alacinasi. (4) Contusion 1 cm x ¾ cm on the right side lower lip. (5) Lacerated wound 1½ cm x ½ cm x mucus membrane deep on the inner aspect of upper lip. (6) Contusion 5 cm x 2 cm on the middle of chest joint. 7. With regard to the internal injuries of the body doctor found the brain was liquefied. Pleura, trachea and both lungs were congested. Small intestine contained digested food and large intestine was empty. Spleean and kidneys were congested. In the opinion of the Doctor N.S. Sharma, death was caused due to asphyxia as a result of closing of mouth and nostrils and compression on the chest. Doctor has proved the post mortem examination report which is Exhibit K-2 available on record. 8. After close of prosecution evidence, statements of the accused persons were recorded under section 313 Cr.P.C. who denied the charges and stated to be falsely implicated due to enmity. The defence has examined Shri Radhey Shyam Gupta, advocate as D.W.-1. 9. Heard Sri V. Singh, learned counsel for the appellants and Sri Amit Sinha, learned A.G.A. for the State. 10. Before appraising the evidence led by both the parties, we would like to mention some of the relevant noticeable facts of the case. That incident is alleged to be of 5.6.1979 at 2.30 P.M., the distance of the police station from the place of occurrence is 2 ½ furlongs, a report was lodged on the very same day at 15.20 P.M. by the Pappu son of Ghurahu. The FIR was lodged against ten named accused persons under sections 147, 149, 302 and 120-B IPC. After investigation charge sheet has been submitted against six accused persons and four accused persons were exonerated whose names are mentioned in the FIR. Charges were framed against six accused persons. The FIR was lodged against ten named accused persons under sections 147, 149, 302 and 120-B IPC. After investigation charge sheet has been submitted against six accused persons and four accused persons were exonerated whose names are mentioned in the FIR. Charges were framed against six accused persons. The learned trial Judge acquitted the accused Pappu @ Sheo Shanker giving him the benefit of doubt on the same evidence, convicted and sentenced the rests of the accused Mataru @ Ganesh Shanker, Munnu, Ashok, Sapan Bengali and Babu Lal under section 147 IPC for six months RI and under section 302/149 IPC for life imprisonment. Record further reveals that place of occurrence as borne out from the eye version account is the meeting point of Peshabwali Gali and Vishwanath Gali from Kalika Gali. Further, no blood was found on the spot and cause of death as per medical report was asphyxia i.e. smothering of mouth and nose of the deceased at the time of assault. The manner and mode of the assault as alleged to be by legs, fists and stone. Prayer for identification made by the accused Mataru, Munnu and Ashok who happen to be the real brothers was rejected by the trial Judge. Further, all the injuries sustained by the deceased are found to be in front side of the body. The name of scriber of the FIR neither find place in the written report nor he was produced as witness. Even the first informant P.W. 3 does not know the name of the scriber of the report. Further, parentage of the accused persons are not mentioned in the FIR. 11. Keeping all the facts under consideration, now we proceed to consider the arguments raised by learned counsel for the parties and the evidence produced by the prosecution in this case. 12. Learned counsel for the accused-appellants made following contentions: (1) The allegations mentioned in the FIR is not corroborated by the informant witness, FIR is ante timed, scriber is neither named in the FIR nor signed the FIR nor produced as a witness in the trial. (2) No weapon has been assigned to any of the accused except stone, neither its "furd" was prepared nor it was exhibited during the trial. (2) No weapon has been assigned to any of the accused except stone, neither its "furd" was prepared nor it was exhibited during the trial. There is no evidence of pre planned assault, or preparation for causing the death of the deceased, neither there is a motive nor intention to commit the murder of the deceased because as per the prosecution story the accused persons assaulted the deceased victim only with legs, fists, meaning thereby they were empty handed at the time of commission of the crime. (3) There are material contradiction in the eye version account especially regarding the place of occurrence which is not in consonance with the site plan. (4) The motive and the immediate reason for causing death of the deceased Pheku Yadav is highly improbable. In support of the argument it has been submitted that statement of the deceased Pheku Yadav in the murder of the Deewan (Hatyakand) had already been recorded. Further, the assault was only by legs and fists, the ante mortem injuries were found to be not the cause of the death. It is further submitted that it is only after cause of death in mortem was found to be asphyxia and the blood oozing out from the mouth and nose of the deceased, the prosecution developed a new story about the smothering of the nose and mouth of the deceased by the accused persons. It is further contended that who, among the accused persons, smothered the nose and mouth of the deceased has not been specifically and categorically established by the prosecution witnesses. It is also submitted that statement under section 161 Cr.P.C. recorded by the Investigating Officer during investigation does not mentions of smothering of the nose and mouth by sitting over the chest of the victim. Neither this fact is mentioned in the FIR nor in any statement recorded under section 161 Cr.P.C. (5) It was lastly argued that the witnesses produced by the prosecution in the case are highly interested and happens to be witnesses of other police cases. It is further submitted that initially ten accused persons were named in the FIR, after completion of the investigation charge sheet was submitted only against six accused persons and during trial accused Pappu was given benefit of doubt and was acquitted, the rest of the accused appellants on the same role and quality of the evidence have been convicted. It is further submitted that initially ten accused persons were named in the FIR, after completion of the investigation charge sheet was submitted only against six accused persons and during trial accused Pappu was given benefit of doubt and was acquitted, the rest of the accused appellants on the same role and quality of the evidence have been convicted. Therefore, the conviction and order of sentence against the surviving accused-appellants can not be said to be legally sound but perverse and against the weight of evidence. Thus, the impugned Judgment of conviction is not sustainable in the eye of law. 13. Rebutting the above arguments, learned A.G.A. has contended that FIR is prompt, manner and mode of the assault with the name of the eye witnesses have been specifically mentioned in the FIR. The presence of the witnesses at the place of incident is highly probable as they are residing in the vicinity. The presumption of possibility of the witnesses on the spot being established, the contradiction and discrepancy, if any, as argued by learned counsel for the accused-appellants are of trivial and minor nature and is not sufficient discredit the ocular version but at the same time has admitted the fact that throttling (smothering) of the chest, neck and mouth which was the cause of death of the deceased has neither been mentioned in the FIR nor in the statements of the witnesses recorded under section 161 Cr.P.C. Learned A.G.A. also did not dispute the fact that the accused Mataru, Munnu and Ashok are the real brothers and had moved an application for the benefit of identification before the trial court which was dis-allowed by the trial court. Lastly it was submitted that the impugned Judgment and order of sentence of the trial court is well reasoned, hence requires no interference by this Court and prayed for dismissal of the appeal. 14. We have considered the contentions as raised by both the parties and have microscopically perused the lower court record and its paper book. 15. A bare perusal of the record reveals that the incident took place on 5.6.1979 at 2.30 P.M. and its report was lodged on the same day and the distance between the place of occurrence and the police station is about 2½ furlongs. 15. A bare perusal of the record reveals that the incident took place on 5.6.1979 at 2.30 P.M. and its report was lodged on the same day and the distance between the place of occurrence and the police station is about 2½ furlongs. P.W. 3 Pappu who is an eye witness as well as informant of this case and on whose dictation the FIR was written has stated that the person to whom he dictated the FIR is not known to him. He further, stated that written report had been sent to police station by one Bachcha Singh on whose photo shop the informant Pappu was present at the time of incident. It is pertinent to mention that neither the name of the scriber is written in the report nor he was known to the informant Pappu nor this report has been directly lodged by the informant Pappu. Why it has been sent through Bachcha Singh and why Bachcha Singh was not produced before the trial court is unanswered. Keeping in mind that this written report has been lodged within fifty minutes of the occurrence, this fact situation is in itself a question mark. Next, with regard to the manner and mode and injuries sustained on the body of the deceased on analysis of the evidence we find that in FIR and statements recorded under section 161 Cr.P.C. all the witnesses have stated that at the time of incident accused persons over powered the deceased and gave blows by legs, fists and the deceased was also hit by a stone. The injuries which could be attributed to stone are found to be simple in nature as per medical evidence. P.W. 3, P.W. 4 and P.W. 5, all the three witnesses stated that stone was recovered and sent to the police station after furd was prepared. However, the Investigating Officer Sri Jagannath-P.W. 6 and Sri Ram Pal Singh-P.W. 7 have not supported the ocular testimony and stated that no stone was recovered from the spot. This is a very material contradiction which goes to doubt the prosecution version. This variance goes to make the presence of the eye witnesses on the spot at the time of commission of the crime highly doubtful. This is a very material contradiction which goes to doubt the prosecution version. This variance goes to make the presence of the eye witnesses on the spot at the time of commission of the crime highly doubtful. Further, analysis of the eye version account goes to show that none of the fact witnesses had stated that who put pressure on the chest or smothered the mouth and nose of the deceased which resulted into the death of the deceased. As we have already noticed that in FIR use of legs, fists and stone have been alleged and this fact has been recorded in the statements of the fact witnesses under section 161 Cr.P.C., but for the first time during trial of the case two facts witnesses have stated that the accused persons smothered the mouth and nose of the deceased after sitting over the chest of the deceased. It is only after the medical report improvement was made by the fact witnesses in their statement and perhaps that was the only reason of producing P.W. 1 Dr. N.S. Sharma as first witness by the prosecution and only after recording his statement the fact witnesses have been examined. So, we find force in the argument of learned counsel for the appellants that this improved new fact has been developed for the first time during the course of trial though none of the fact witnesses have named any of the accused who sat on the chest and smothered the mouth and nose of the victim. It is also relevant to mention that P.W. 3 in his statement stated that accused Ashok gave stone blow but the injury of stone is found to be simple in nature. 16. It may be relevant to refer to the settled legal preposition laid down by the Hon'ble Apex Court in 2008 (1) Crime page 111 (SC) Kapildeo Mandal & others Vs. State of Bihar, wherein it has been held that if the medical evidence specifically rules out the injury claimed to have been inflicted as per the eye-witnesses' version, then the court can draw adverse inference to the effect that the prosecution version as being put forth before the court, is not trustworthy. In such cases the accused are entitled to benefit of doubt. In such cases the accused are entitled to benefit of doubt. The Hon'ble Apex Court has observed as under: "In case of the inconsistency in evidence of witnesses and the trustworthy medical evidence, accused would be entitled to benefit of doubt." 17. With regard to the contention raised by learned counsel for the appellants on the point of place of occurrence, we find from the perusal of the record that in FIR it is alleged that accused persons were present in Vishwanath Gali and the victim was coming from Kalika Gali and when he reached at the corner of the Gali which is in front of the photo shop incident took place whereas P.W. 3 Pappu stated in his examination-in-chief that victim Pheku Sardar was coming from Kalika Gali to Peshabwali Gali and when he reached corner of Vishwanath Gali incident took place. During cross examination at one place he stated that Pheku Sardar was murdered in Peshabwali Gali which is in front of photo shop of Bachcha Singh and at another place he stated that the place of incident was two or three paces away from crossing of Peshabwali Gali which is 8 to 10 paces from the stairs in Vishwanath Gali. At another place he stated that incident took place towards Vishwanath Gali. On this point P.W. 4 Sheonath Upadhyay stated that incident took place in between Peshabwali Gali and Vishwanath Gali, whereas P.W. 5 Sohan stated the incident took place at the corner of Peshabwali Gali. During cross examination he stated that place of incident was 4 to 5 paces towards south of crossing of Kalika Gali. 18. If these statements of the eye witnesses are compared with the statement of P.W. 6, Investigating Officer Jagannath Singh who proved the site plan Exhibit Ka-11, material contradiction becomes apparent. According to him the place of occurrence is corner of Vishwanath Gali and Kalika Gali. The Investigating Officer in his site plan Exhibit Ka-11 marked the place of occurrence in a Gali which is in between photo shop of Taara Prasad and beetal shop of Kedar Nath. On analysis of the statements of fact witnesses and that of the Investigating Officer and the site plan, we find material variance. This goes to show that either these witnesses were not present at the time of incident or they are concealing the true version of the incident. On analysis of the statements of fact witnesses and that of the Investigating Officer and the site plan, we find material variance. This goes to show that either these witnesses were not present at the time of incident or they are concealing the true version of the incident. Further it transpires from the evidence of fact witnesses that the place of occurrence is very busy lane but none of the witnesses of the vicinity has been produced. Although we are conscious about the legal preposition that it is not the absolute requirement of the law to produce the independent witnesses or witnesses of the locality but under the facts and circumstances since the incident is of a day time and the place of occurrence is said to be full of people, there being so many shops all through the lane but only those witnesses have been examined who are either interested or inimical. In such a situation where no independent witness has come forward to support the prosecution version, makes the prosecution story doubtful. 19. On the basis of forgoing reasons, it can be safely concluded that FIR itself is under cloud of suspicion, the place of occurrence has not been established with cogent, credible and believable evidence. Medical evidence does not support the eye version account. The motive and immediate reason for committing the crime of murder has not been established. Although in criminal cases based on direct evidence motive can not be said to be absolute requirement of the law but in order to appraise the intrinsic quality and inherent probability of the statement of fact witnesses to our mind it has got relevance. The fact situation is, all the accused persons were found to be empty handed, assault being made by legs, fists and stone, use of stone was found to be doubtful, cause of death opined by the medical expert belies the ocular testimony, the crime of murder was neither pre-planned nor the accused persons were prepared, the evidence of common object and intention is missing in this case and one of the accused Pappu has already been acquitted and had been given benefit of doubt on the same evidence. The witnesses produced in this case are found to be highly interested and inimical. No independent witnesses have come forward to support the prosecution version. 20. The witnesses produced in this case are found to be highly interested and inimical. No independent witnesses have come forward to support the prosecution version. 20. Keeping all the above stated reasons, we are of the view that the impugned Judgment is against the weight of the evidence. The prosecution has failed to prove its case beyond shadow of doubt against the accused appellants. 21. Therefore, the appeal deserves to be allowed and is accordingly allowed. The impugned Judgment of conviction and order of sentence dated 16.04.1983 is hereby set aside and they are acquitted from all these charges. The appellants are on bail and are not required to surrender. Their bail bonds and sureties bonds are hereby discharged. 22. Let the certified copy of this Judgment along with record be sent to the court below for information and necessary compliance.