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2017 DIGILAW 1246 (ALL)

PAL v. STATE OF U. P.

2017-05-10

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2017
JUDGMENT : The arguments of this case concluded on 10.05.2017. Following order was passed by us on that date: "Heard Sri Rajiv Lochan Shukla, Advocate, assisted by Sri Ambar Khanna and Sri Girja Shankar Prajapati for the appellants, Sri A.N. Mulla, Sri Saghir Ahmad, Sri J.K. Upadhyay and Kumari Meena, learned A.G.As. for the State and Smt. Manju Thakur, learned Brief Holder for the State. We will give reasons later but we are making the operative order now. The appeal is allowed. Impugned judgment and order dated 30.11.1988 passed by IIIrd Additional Sessions Judge, Fatehpur, in Sessions Trial No.63 of 1988 convicting and sentencing the appellants Shri Pal, Ram Autar and Bhikkhu to undergo imprisonment for life under Sections 302 and 302/34 is hereby set aside. Appellants Shri Pal, Ram Autar and Bhikkhu are acquitted of all charges. All the appellants Shri Pal, Ram Autar and Bhikhku are on bail. They need not surrender. Their bail bonds are cancelled and their sureties discharged. However, they will comply with the provisions of Section 437-A Cr.P.C." The instant criminal appeal has been directed against the judgment and order of conviction and sentence dated 30.11.1988 passed by the Additional Sessions Judge, Fatehpur, in Session Trial No.63 of 1988, State Vs. Bikkhu and two others, arising out of Case Crime No.118 of 1987, under Sections 302 and 302/34 IPC, Police Station Lalauli, District Fatehpur, whereby appellant nos.1 and 2 Shri Pal and Ram Autar have been sentenced to imprisonment for life under Section 302/34 IPC and appellant no.3 Bhikkhu has been sentenced to imprisonment for life under Section 302 IPC. Relevant to mention that appellant no.3 Bhikkhu died during pendency of this appeal. Therefore, appeal qua appellant no.3 Bhikkhu stood abated by order of this Court. Relevant to mention that appellant no.3 Bhikkhu died during pendency of this appeal. Therefore, appeal qua appellant no.3 Bhikkhu stood abated by order of this Court. Relevant facts giving rise to this appeal as discernible from the record appear to be that the informant Ram Pal PW-1 lodged the report at Police Station Lalauli, District Fatehpur on 24.09.1987 at 10:15 a.m. regarding murder of his nephew Ramesh (deceased) by the accused namely Bhikkhu, Shri Pal and Ram Autar in the night intervening around 2:30 to 3:00 a.m. on 23/24.09.1987 in village Hariyapur with specific allegation that the informant nephew Ramesh (deceased) and Man Bodhan @ Mohan, both sons of Indrapal, wife and mother of the deceased were sleeping in front of their door under 'Chilbil' tree and there was hanging an illuminated lantern under thatched roof (Chhappr). The informant was also sleeping under cattle shed. Around 2:30 to 3:00 a.m., Ramesh (deceased) screamed whereupon all the persons awakened and they saw the accused assaulting Ramesh (deceased). Accused Bhikkhu was causing blow by axe while accused Shri Pal son of Binda had gripped both hands of Ramesh (deceased) and Ram Autar son of Jagana Kumhar had gripped both legs of Ramesh (deceased). On alarm being raised, the informant brother Chandra Pal and neighbour along with a number of villagers arrived on the spot who saw the accused in the torch light and in the illumination of the lantern and identified them. The assailants fled away from the scene. The informant's nephew Ramesh (deceased) being seriously injured was taken to the hospital at Fatehpur where he expired. His dead body was lying in the hospital. The motive behind murder was stated to be fact that five to six months prior to the incident, Jhuri brother of accused Bhikkhu had executed a sale deed of the house in favour of Ramesh (deceased). Accused Bhikkhu wanted this house to be sold out to Shri Pal. Bhikkhu had also instituted a suit for the house in question which was pending and he was hopeful that the house would be owned by the accused Shri Pal. Due to the aforesaid reason, the informant nephew Ramesh (deceased) has been murdered in the alleged incident. This report is Ext. Ka-1. Bhikkhu had also instituted a suit for the house in question which was pending and he was hopeful that the house would be owned by the accused Shri Pal. Due to the aforesaid reason, the informant nephew Ramesh (deceased) has been murdered in the alleged incident. This report is Ext. Ka-1. The relevant entries were noted down in the concerned check FIR at Police Station Lilauli, on 24.09.1987 at 10:15 a.m. at Case Crime No.118 of 1987 under Section 302 IPC and relevant entries were also made in the concerned general diary of date, copies whereof are Ext. Ka-4 and Ext. Ka-5, respectively. It is gathered from record that the information of the death of Ramesh was conveyed to the police station by the ward boy of the hospital around 7:35 a.m. on 24.09.1987 whereupon inquest was held by S.I. Suraj Bhan at the hospital and he prepared inquest report the very same day around 10:30 a.m. Copy whereof is Ext. Ka-14. Since it was opined that the dead body be sent for post mortem examination for ascertaining real cause of death, the relevant papers were prepared in the process say Challan dead body, Photonash, Letter to R.I., letter to C.M.O., specimen seal, copies whereof are Ext. Ka-15, Ext. Ka-16, Ext. Ka-17, Ext. Ka-18 and Ext. Ka-19, respectively. The post mortem examination on the cadaver of the deceased was done by Dr. S.S. Dwivedi PW-5 on 24.09.1987 at 3:00 p.m. He noted the following ante mortem injuries: 1. Incised wound on left side skull 3 cm above ear grove. Transverse in direction size 10 cm x 1 cm x bone deep. 2. Incised wound on left side skull 3 cm below injury no.1 size 10 cm x 1 cm x bone deep going through ear and also cutting ear pinna. Transverse direction. 3. Incised wound on left side skull 1 cm below injury no.2 size 15 cm x 2 cm x bone deep also cutting pinna of ear. 4. Incised wound below injury no.3 size 5 cm x 1 cm x bone deep. Transverse. 5. Incised wound on chin lateral left side 3 in number size varies from 2 cm x 1 cm to 1 cm x 1 cm x bone deep in area of 8 cm x 4 cm. 6. Incised wound on left deltoid prominence, transverse size 5 cm x 2 cm x bone deep. 7. Transverse. 5. Incised wound on chin lateral left side 3 in number size varies from 2 cm x 1 cm to 1 cm x 1 cm x bone deep in area of 8 cm x 4 cm. 6. Incised wound on left deltoid prominence, transverse size 5 cm x 2 cm x bone deep. 7. Incised would on left forearm 15 cm above wrist joint size 7 cm x 3 cm x bone deep, transverse. 8. Incised wound on right index finger, middle phalynx size 2 cm x 1 cm. Transversely. 9. Incised wound on right middle finger at base size 4 cm x 2 cm x bone deep. 10. Incised wound on right hand palm, surface size 6 cm x 3 cm x bone deep, up down direction. As per opinion of the doctor, the cause of death was shock and haemorrhage due to ante mortem injuries. Duration was stated to be half day. The post mortem examination report is Ext. Ka-2. The Investigating Officer, V.S. Bhadauriya conducted the investigation, inspected the spot and prepared spot map. On 26.09.1987, the Investigating Officer arrested the accused Ram Autar and he recovered weapon of assault (axe) at the pointing of the accused Ram Autar from his sugar field and prepared a memo of the same and also site plan of the place of recovery. After completing the investigation, the Investigating Officer filed charge sheet against the appellants Ext. Ka-13. The Investigating Officer has proved various memos i.e. memo of site plan Ext. Ka-6, memo of simple and blood stained soil Ext. Ka-7, memo of 'Sutli' Ext. Ka-8, memo of lantern Ext. Ka-9, memo of torch Ext. Ka-10, memo of recovery of axe Ext. Ka-11 and memo of site plan of the place of recovery Ext. Ka-12. As a sequel to it, proceedings were committed to the court of Sessions from where it was transferred for conduction and disposal of the case to the aforesaid trial court of III-Additional Sessions Judge, Fatehpur who in turn heard both the sides on point of charge and was prima-facie satisfied with case against the appellants, accordingly, framed charges under Sections 302 and 302 read with Section 34 IPC. Charges were read over and explained to the appellants who abjured charges and opted for trial. In furtherance of the proceedings the prosecution produced in all 9 witnesses. Charges were read over and explained to the appellants who abjured charges and opted for trial. In furtherance of the proceedings the prosecution produced in all 9 witnesses. A brief sketch of witnesses is ut-infra:- Ram Pal PW-1 is the informant and eyewitness of the occurrence. Devrati @ Chunki PW-2 is eyewitness and she is wife of Ramesh (deceased). Smt. Sudama PW-3 is also eyewitness of the occurrence and she is mother of Ramesh (deceased). Ram Shankar PW-4 is witness of recovery and he has turned hostile and has not supported the factum of recovery of the weapon axe. Dr. S.S. Dwivedi PW-5 has conducted post mortem examination of Ramesh (deceased). Head Constable Bhagauti Prasad Maurya PW-6 has noted the information communicated to him by the ward boy posted in Sadar Hospital, Fatehpur, in the relevant general diary on 24.09.1987 at 7:35 a.m. at Rapat No.9 Ext. Ka-3. Constable Munendra Singh PW-7 has prepared check FIR and made entry in the relevant general diary whereby the case was lodged against the appellants. V.S. Bhadauriya PW-8 is the Investigating Officer, he has detailed steps he took in completing the investigation. S.I. Suraj Bhan PW-9 has prepared inquest report Ext. Ka-14. Except as above, no other evidence was adduced by the prosecution. Therefore, evidence for the prosecution was closed. The statement of the accused was recorded under Section 313 Cr.P.C. wherein all the accused denied their involvement in the commission of the offence and stated that the prosecution witnesses are inimical towards them and they have been falsely implicated in this case on account of enmity. Accused Shri Pal has stated that Sukh Lal had fired on him and Sukh Lal runs a shop in the house of Ramesh (deceased) and he colluded with the informant in falsely implicating him in this case. Accused Ram Autar has specifically denied factum of recovery of axe on his pointing out and has stated that he was arrested in the afternoon on 24.09.1987 from his house and was kept at the police station on 25.09.1987 and 26.09.1987 and was challaned on 27.09.1987. No testimony, whatsoever, has been led by the defence. The case was heard on merit by the learned trial Judge who after appraisal of facts and circumstances of the case and evaluation of the evidence, returned aforesaid finding of conviction against the appellants and sentenced the appellants under the aforesaid sections of IPC. No testimony, whatsoever, has been led by the defence. The case was heard on merit by the learned trial Judge who after appraisal of facts and circumstances of the case and evaluation of the evidence, returned aforesaid finding of conviction against the appellants and sentenced the appellants under the aforesaid sections of IPC. Consequently, this appeal. Learned counsel for the appellants has contended that the allegations made against the appellants are outcome of collusion between the informant and the police of the concerned police station and they have built up an imaginary story of the assault being caused to Ramesh (deceased) by the appellants in the night intervening 23/24.09.1987. Learned counsel for the appellants has contended next that the version of the first information report itself is not supported by the contradictory testimony of the prosecution witnesses of fact. The testimony of the witnesses of fact also does not corroborate testimony of the Investigating Officer. All the prosecution witnesses are improving their version at their respective convenience. There are material contradictions regarding description of the manner of the occurrence. The informant himself did not know name of the accused Shri Pal and he was told about this by Daroga Ji himself then he wrote name of the father of the accused Shri Pal. This means that the first information report was written at the behest and instance of the police personnel of the concerned police station and the same cannot be relied on. Learned counsel for the appellants has further contended that ante mortem injuries have been described to be ten in numbers. These injuries of various dimensions cannot be caused in a short span of time within two or three minutes, but it will take lot more time than 2-3 minutes. The testimony of PW-1 is suggestive of fact that he did not see the occurrence but when he arrived on the spot then he noticed the assailants fleeing away from the scene. The Investigating Officer never arrested the accused Ram Autar on 26.09.1987 and he did not recover anything at his pointing out which fact stands exposed by testimony of the prosecution witnesses and the Investigating Officer himself, the factum of recovery has not been supported by the prosecution witnesses. It is strange that Ram Pal PW-1 and Ram Shankar PW-4 have stated that Daroga Ji had obtained their signature on several blank papers. It is strange that Ram Pal PW-1 and Ram Shankar PW-4 have stated that Daroga Ji had obtained their signature on several blank papers. This disclosure establishes intriguing behaviour of the Investigating Officer and tells truth that the police was keenly interested in false implication of the accused. The trial court applied its mind mechanically to the given facts and circumstances of the case and erroneously construed the essence of evidence and thus, wrongly convicted and sentenced the appellants. While retorting to the aforesaid arguments, learned AGA has submitted that the evidence on record is consistent with the description and manner of the assault being caused on Ramesh (deceased). The contradictions, if any, appearing in the testimony of prosecution witness are of trivial nature and the same cannot be said to be material. Their testimony when read, as a whole, inspires confidence. The Investigating Officer has conducted fair investigation and has rightly filed charge sheet against the appellants. The facts and circumstances of the case justify finding of conviction and the same cannot be faulted with at this stage. Therefore, the appeal lacks merit. Also considered the above rival submissions and taken into consideration rival claims. In view of above, the point for determination of this appeal specifically relates to fact whether the prosecution has been able to prove charge against the appellants under the aforesaid sections of IPC beyond reasonable doubt and has sentenced condignly. The incident has been described in the first information report Ext. Ka-4 wherein all the appellants have been named and it is stated that in the torchlight and in the light of lantern, which was hanging under the thatched roof, the prosecution witnesses saw the occurrence. However, bare perusal of the testimony of PW-1 is indicative of fact that he saw the assailants running away from the scene of occurrence when he arrived on the spot. Therefore, it is obvious that he did not see the actual occurrence. However, bare perusal of the testimony of PW-1 is indicative of fact that he saw the assailants running away from the scene of occurrence when he arrived on the spot. Therefore, it is obvious that he did not see the actual occurrence. In his testimony, he has categorically stated that he saw the accused fleeing away from the scene of occurrence, then the description of the incident as described in the first information report that two accused had caught hands and legs of the deceased and one of them was causing blow with axe, is to be scrutinized cautiously by evaluating testimony of the other two prosecution witnesses of fact, namely, Devrati @ Chunki PW-2, Smt. Sudama PW-3, wife and mother of Ramesh (deceased), respectively. Devrati @ Chunki PW-2 has described about the incident that on the shriek of her husband, she was awakened and she saw Bhikkhu causing axe blow upon her husband and Ram Autar had gripped hands of her husband, whereas, Shri Pal had gripped legs of her husband. On alarm being raised, the informant Ram Pal, Chandra Pal of the village, her near relatives arrived on the spot. These persons were bearing torches. They challenged the accused when they fled away from the scene of occurrence. She has stated that the motive behind the crime was based on fact that Jhuri - brother of Bhukku had executed sale deed of his house in favour of her husband (Ramesh) which annoyed the accused Bhikkhu and he instituted a civil suit and due to this enmity, he murdered her husband. She has stated that Daroga Ji arrived on the spot and she had shown him lantern and Daroga Ji had taken note of the same and she herself took the lantern before the trial court and shown it there. However, this fact has been denied by the Investigating Officer in his cross examination that she ever shown any lantern to him. He also denied that he ever prepared memo of lantern at her instance. However, this fact has been denied by the Investigating Officer in his cross examination that she ever shown any lantern to him. He also denied that he ever prepared memo of lantern at her instance. The Investigating Officer has also denied fact that she ever gave statement to him that a sale deed was executed in favour of her husband and her brother-in-law Man Bodhan @ Mohan, whereas, she has stated that she had given such statement to Daroga Ji and she has gone to the extent of claiming that Daroga Ji had instructed her to bring this lantern to the court which aspect, in the face of the same being denied by the Investigating Officer of this case, also goes to establish that she is improving. She has been cross examined wherein this specific fact has emerged that Ram Autar had tightened grip over both the hands of Ramesh (deceased) by his wrist and Shri Pal had caught both legs of Ramesh (deceased), whereas, this description is in direct contrast to the description of the incident delineated in the first information report wherein it has been explicitly written that accused Shri Pal had tightened grip over the hands of the deceased, whereas, accused Ram Autar had gripped both the legs of the deceased. This anomaly regarding specific manner of occurrence hit to the root of the incident as to how it occurred and the manner of the assault being caused in a particular manner is thus rendered dubious. We cannot easily overlook this strange anomaly regarding the very manner of causing ante mortem injuries on the deceased. The magnitude and nature of the injuries caused upon Ramesh (deceased) establish that these injuries are of particular dimensions caused on various parts of the body of Ramesh (deceased). One injury which was caused on the hand and palm shows that there was some resistance offered by the deceased - Ramesh, while he was being assaulted which means that it was not easy task for the culprits when resistance was offered to cause all such injuries within 2 or 3 minutes. One injury which was caused on the hand and palm shows that there was some resistance offered by the deceased - Ramesh, while he was being assaulted which means that it was not easy task for the culprits when resistance was offered to cause all such injuries within 2 or 3 minutes. Even this sort of injury caused on the hand and palm of Ramesh (deceased) must have taken some reasonable time, that is to say - at the very first stroke caused by the assailants, the deceased must have shrieked and raised alarm and the so-called witnesses must have been awakened and intervened and they must have given coherently consistent version of the incident which is woefully wanting in their description of the manner of assault being caused on the deceased. Insofar as PW-1 is concerned, his testimony is suggestive of fact that he did not see the actual occurrence. Devrati @ Chunki PW-2 being wife of Ramesh (deceased) has narrated the incident in a way which is in sheer contrast to the description of the manner of the incident given in the first information report as to who caught hands and who caught legs. Similar is the case with Smt. Sudama PW-3, mother of Ramesh (deceased), who has dittoed the version of the incident to the same ambit that Shri Pal had gripped both the hands of Ramesh (deceased) and Ram Autar had gripped both legs of Ramesh (deceased). It means that both the witnesses have not supported the actual occurrence in line with description of the incident narrated in the first information report. The reason behind it gets corroboration from relevant facts and circumstances of this particular case. In fact, Ram Pal PW-1 met Daroga Ji prior to the lodging of the first information at Police Outpost Bahua where he described the incident to him. No report has been written at the police outpost. Daroga Ji accompanied him from police outpost Bahua to the police station. He deposed in his cross examination that he himself had written the report and he did not write the report at the instance of Daroga Ji. However, he has admitted in paragraph no.21 of cross examination that he did not know name of father of Shri Pal. The name of father of Shri Pal came to his knowledge two months after the incident. However, he has admitted in paragraph no.21 of cross examination that he did not know name of father of Shri Pal. The name of father of Shri Pal came to his knowledge two months after the incident. The name of father of Shri Pal is Ayodhya. Prior to that, he had no knowledge about the name of father of Shri Pal. But he (informant) wrote name of father of Shri Pal as Binda at the instance of Daroga Ji. At this juncture, he was specifically put question by the defence that in his statement given to Daroga Ji, he has also given parentage of the accused (Sri Pal) then he could not assign any worthy reason for the same. This piece of testimony is pointing invariably to fact that the first information report was deliberated upon by the intervention of the police personnel. When the informant was not aware of the parentage of one of the accused, how can he give name of the accused in the first information report and in the statement recorded under Section 161 Cr.P.C. This shows the first information report is outcome of deliberation and consultation between the informant and the police. PW-1 has stated that Daroga Ji visited the place of occurrence the very same day when the first information report was lodged and on the same day, he arrested the accused Ram Autar and recovered axe from his possession, whereas, testimony of the Investigating Officer V.S. Bhaduriya PW-8 tells different story that accused Ram Autar was arrested on 26.09.1987 and he recovered axe at the pointing out of the accused from his sugarcane field and he prepared memo of the same Ext. Ka-11. Testimony of the Investigating Officer PW-8 does not inspire confidence in view of the testimony of Ram Shanker PW-4, witness of recovery, when he has denied, in toto, the factum of recovery of any axe before him by the police. He has testified on line that he is unaware of any such recovery and his testimony is in clear cut term that Daroga Ji deliberately made him a witness of the incident as well as recovery. He never made any statement to the Investigating Officer. He has also testified that Daroga Ji had obtained his signature on several blank papers/sheets and these signatures were made under pressure by him. He never made any statement to the Investigating Officer. He has also testified that Daroga Ji had obtained his signature on several blank papers/sheets and these signatures were made under pressure by him. Further the Investigating Officer prepared memo of quilt and Kathari of the cot of Ramesh (deceased) and also took blood stained soil and clothes and 'Sutli' whereupon the assault was caused but he did not send the same for chemical examination. This also shows gross negligence on the part of the Investigating Officer. The Investigating Officer has categorically denied fact that he ever told parentage of the accused Shri Pal to the informant. This also establishes fact that the Investigating Officer has concealed the truth and has not carried out investigation fairly. Smt. Sudama PW-3, mother of Ramesh (deceased) has stated in paragraph no.31 of her testimony that she caught hold of one of the assailants when she was given fist blow and in paragraph no.32, she has stated that fist blow was given on her mouth. She gave such specific statement to Daroga Ji when he visited the spot, whereas, the Investigating Officer has categorically denied any such statement having been given by her to him. This also shows malafide on part of the witness to be interested in ensuring conviction against the appellants. The handiwork of the police and particularly the Investigating Officer stands exposed by specific testimony of the informant Ram Pal PW-1 himself when he testified in paragraph no.3 of his testimony that Daroga Ji had obtained his signature on 3-4 blank papers and he has stated that memo of recovery of axe though bears his signature but it was obtained on blank paper. Established judicial tenets and jurisprudential norms will hardly evoke any concrete response in the face of overall weak testimony brought on record by the prosecution. We after careful exercise of our discretion and after scrutinizing various aspects of this case do not find any sagacious reason to sustain finding of conviction and sentence awarded against both the accused by the trial court because of testimony of prosecution witnesses of fact is wholly vacillating and improved one. The aforesaid aspects both factual and legal have not been correctly appreciated, appraised and evaluated by the trial court. The aforesaid aspects both factual and legal have not been correctly appreciated, appraised and evaluated by the trial court. The trial court misread into evidence both on factual and legal sides and without heeding to the material inconsistencies appearing in the testimonial description of the occurrence and without fathoming the veracity and creditworthiness of the prosecution witnesses of fact, erroneously recorded finding of conviction which finding of conviction and sentence is liable to be set aside. These are the reasons upon which we set aside the impugned judgment and order of conviction and sentence dated 30.11.1988 passed by the Additional Sessions Judge, Fatehpur, in Session Trial No.63 of 1988, State Vs. Bikkhu and two others, arising out of Case Crime No.118 of 1987, under Sections 302, 302/34 IPC, Police Station Lalauli, District Fatehpur. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.