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2017 DIGILAW 1373 (ALL)

STATE OF U. P. v. DIN DAYAL

2017-05-24

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

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JUDGMENT : Hon'ble Bala Krishna Narayana, J. Hon'ble Arvind Kumar Mishra-I,J. 1. Case called out. Heard Sri A.N. Mulla, learned A.G.A. for the State and perused the judgment impugned in the instant Government Appeal. 2. Report of the Chief Judicial Magistrate, Etah dated 18.06.2016, which in on the record of this appeal, indicates that accused-respondent nos. 1 and 2- namely- Din Dayal s/o Kuber Singh and Amar Singh s/o Din Dayal have died 20 and 9 years before, respectively. In view of above, this appeal is dismissed as abated qua accused-respondent nos. 1 and 2. 3. By way of instant Government Appeal the appellant (State) is seeking leave to appeal against the judgment and order of acquittal dated 03.03.1984 passed by Special Judge, (E.C. Act) Etah in Sessions Trial No. 804 of 1983 (State Versus Din Dayal and others) by which the accused-respondent nos. 1, 2 and 3- Din Dayal, Amar Singh and Daya Ram were acquitted of the charged levelled against them under Section 302 read with Section 34 IPC. 4. Since accused-respondent nos. 1 and 2- namely- Din Dayal and Amar Singh have already died, hence we proceed to decide the case on merits qua sole surviving respondent- Daya Ram (accused-respondent no.3). 5. The prosecution story in brief is that Netrapal Singh had a Chak in village- Ishara, Police Station- Sakit, District- Etah. During consolidation, the land to the east of this Chak was allotted in the Chak of accused-respondent no.1- Din Dayal. Some land of burial ground was alloted in the Chak of Din Dayal. On objection being raised, some residuary land in the east was allotted to Sri Din Dayal in the place of the land of burial ground. Netrapal Singh was in the possession of the residuary land and he did not permit Sri Din Dayal to take possession of the same. One Sri Prag Singh had two brothers- Bala Sahai and Rustam, who had died issue-less. Sri Prag Singh had sold his share in the house to accused Amar Singh. Subsequently, he sold the remaining share in the house which belonged to his brothers to Brajesh Singh Bhadoriya son-in-law of Netrapal Singh. Accsued Amar Singh wanted to purchase this land. He felt aggrieved when Brajesh Singh purchased the house from Prag Singh. 6. On 18.10.1983, the revenue authorities had visited the village and measured the plot of accused Din Dayal. Subsequently, he sold the remaining share in the house which belonged to his brothers to Brajesh Singh Bhadoriya son-in-law of Netrapal Singh. Accsued Amar Singh wanted to purchase this land. He felt aggrieved when Brajesh Singh purchased the house from Prag Singh. 6. On 18.10.1983, the revenue authorities had visited the village and measured the plot of accused Din Dayal. On measurement, they demarcated some land in possession of Netrapal Singh as the land alloted to Din Dayal Singh. After the consolidation authorities had arrived, Daya Ram Singh called Netrapal on the Chak. Accused Din Dayal Singh came along with his two sons- Amar Singh and Daya Ram and started to construct a 'mend' on the newly fixed boundary land. At about 05.30 P.M. Raj Kumar P.W.1 s/o Netrapal Singh came to know that his father had gone to the disputed Chak. He along with Jugendra Pal P.W.2, Vijai Pal and Prem Pal proceeded towards this plot. When they reached near the mango tree situated at some distance from the disputed land, they saw that Netrapal was asking the accused to raise the 'mend' in the morning. Thereupon accused Din Dayal and Daya Ram armed with 'lathis' and Amar Singh armed with a 'phhadwa' began to assault Netrapal Singh. The four witness rushed to the spot and on seeing them, the accused made their escape good. 7. Raj Kumar took his father (injured Netrapal Singh) to his house and arranged for a bullock-cart. He then proceeded to Sakit along with his father, whose leg and hand had fractures and had received multiple injuries. When they were on the way near the bus-stand and school of Sakit, Netrapal Singh succumbed to his injuries. 8. Raj Kumar dictated the FIR (Ex.Ka.1) to one Sri Arvind and took it to the Police Station- Sakit, where a report was lodged at 10.00 P.M. The police registered the case. 9. Sub Inspector Sri J.S. Rawat was entrusted with the investigation. He recorded statements of the head-constable and informant Raj Kumar P.W.1. He went to the primary school, Sakit, where the dead body of deceased Netrapal Singh was kept, but he could not conduct inquest due to paucity of light. He then proceed to the village and searched for the accused, but he couldn't find them. In the morning of 19.10.1983, he made inquest and prepared documents (Ex.Ka5 to Ex.Ka9). He went to the primary school, Sakit, where the dead body of deceased Netrapal Singh was kept, but he could not conduct inquest due to paucity of light. He then proceed to the village and searched for the accused, but he couldn't find them. In the morning of 19.10.1983, he made inquest and prepared documents (Ex.Ka5 to Ex.Ka9). He sent the sealed dead-body for postmortem examination, recorded statement of Jugendra Pal Singh P.W.2 and proceeded to the spot with Raj Kumar P.W.1. On the way, he received information that accused Amar Singh was present in Nagla Puni. He went there and arrested Amar Singh. Thereafter, he went to the spot and prepared the site plan (Ex.Ka.11). He also took samples of blood-stained and simple earth (Ex.III and Ex.IV) and prepared 'fard' (Ex.Ka.12). Constable Shiv Ratan Singh and Bhup Singh took the dead body to the mortuary. While they were near the mortuary, they arrested accused Daya Ram. The postmortem examination on the cadaver of the deceased was conducted by Dr. R.K. Sharma at 03.00 P.M. on 19.10.1983. He prepared the postmortem report (Ex.Ka.2). In his opinion, death of the deceased was caused due to shock and haemorrhage as a result of the rupture of spleen. 10. After conclusion of the investigation, SO Sri Rukmangal Singh filed charge-sheet (Ex.Ka.13) against the accused. 11. The prosecution has examined Sri Raj Kumar P.W.1 and Sri Jugendra Pal Singh P.W.2 as eye-witnessses. They have fully supported the prosecution story and have stated that they had themselves seen the occurrence. Raj Kumar P.W.1 proved FIR (Ex.Ka.1) and also Kurta (Ex.Ka.I) and Dhoti (Ex.Ka.II) as the clothes worn by the deceased at the time of the occurrence. He has also proved enmity constituting the motive for the crime. 12. Dr. R.K. Sharma P.W.3 conducted the postmortem examination. He had given details of various injuries found on the dead body and also prepared postmortem report Ex.Ka.2. 13. Head-constable Gangadhar P.W.4 received the FIR (Ex.Ka.1) from Raj Kumar P.W.1 and prepared check FIR (Ex.Ka.3) and registered the case vide G.D entry (Ex.Ka.4). 14. Constable Shiv Ratan Singh P.W.5 had taken the dead body of the deceased in sealed condition for postmortem examination. 15. 13. Head-constable Gangadhar P.W.4 received the FIR (Ex.Ka.1) from Raj Kumar P.W.1 and prepared check FIR (Ex.Ka.3) and registered the case vide G.D entry (Ex.Ka.4). 14. Constable Shiv Ratan Singh P.W.5 had taken the dead body of the deceased in sealed condition for postmortem examination. 15. SI Jagdish Singh Rawat P.W.6 has proved the various steps he took in the investigation of the crime and also the documents (Ex.Ka.5 to Ex.Ka.12) as well as the charge-sheet (Ex.Ka.13) prepared by SO Sri Rukmangal Singh. He also prepared various parts of the statements of the two eye-witnesses given to him under Section 161 Cr.P.C. 16. The accused pleaded not guilty. 17. The defence has examined two witnesses, viz. Constable Harvir Singh D.W.1 and Constable Bal Kishan D.W.2. Constable Harvir Singh D.W.1 has proved that on 19.10.1983 at 02.50 P.M., SI Sri Jagdish Singh came back to the police station along with the accused Amar Singh. Constable Bal Kishan D.W.2, who was posted at Police Station- Kotwali, Etah on 19.10.1983, proved the G.D. entry showing that accused Daya Ram was arrested and brought to Police Station- Kotwali, Etah at 01.40 P.M. on that day. 18. After having heard learned counsel for the parties and scrutinizing the evidence on record, the learned trial Judge acquitted the accused-respondent nos. 1, 2 and 3 of all charges. 19. Hence, this appeal. It has been submitted by Sri A.N. Mulla, learned A.G.A. appearing for the State that the finding of acquittal recorded by the trial court is against the evidence brought on record. He further submitted that guilt of accused-respondent no.3 stood proved from evidence of Raj Kumar P.W.1 and Jugendra Pal Singh P.W.2, who were produced by the prosecution as eye-witnesses of the occurrence and the court below had disbelieved their testimony on the ground that they had not seen the occurrence. He also submitted that the impugned judgment and order, which suffers from errors of law, is liable to be set aside. We have heard Sri A.N. Mulla, learned A.G.A. for the State and perused the entire lower court record. 20. It is not disputed that Netrapal died at about 9.00 or 9.30 P.M on 18.10.1983. This is proved by the statement of Raj Kumar P.W.1, Jugendra Pal Singh P.W.2 and Dr. R.K. Sharma, P.W.3. We have heard Sri A.N. Mulla, learned A.G.A. for the State and perused the entire lower court record. 20. It is not disputed that Netrapal died at about 9.00 or 9.30 P.M on 18.10.1983. This is proved by the statement of Raj Kumar P.W.1, Jugendra Pal Singh P.W.2 and Dr. R.K. Sharma, P.W.3. The prosecution version is that the deceased received injuries at about 06.00 P.M. and died some time before the FIR was lodged at 10.00 P.M. On the other hand, the suggestion of the accused is that Netrapal had enmity with several persons and he was beaten by some unknown persons during night. The assailants could not be seen or even if they were identified by Netrapal, the latter died before he could divulge their identity to his relatives. In our opinion, in this respect, the version of the defence is more reliable. In support of the prosecution case, there are two witnesses- Raj Kumar P.W.1 and Jugendra Pal Singh P.W.2, both of whom are partisan witnesses. The circumstances of the case and the statement of Dr. R.K. Sharma thus become of primary importance. Raj Kumar P.W.1 has stated that in his family, the morning meals are taken at about 08.00 A.M. and the evening meals at about 05.00 P.M. He has stated that he reached his house at 03.00 P.M. on 18.10.1983, then his father Netrapal was not at house. Netrapal had left his house before 03.00 P.M. and received injuries at nearly 06.00 P.M. while he was on his plot. After receiving injuries, his condition was precarious and there was no question of his taking meals. Dr. R.K. Sharma, during post-mortem examination found that the abdomen of the deceased was found full of semi-digested food. Semi-digested food was also found in the small intestines while the large intestines contained faecal matter. On the basis of this, Dr. R.K. Sharma P.W.3 has given his opinion that the deceased had taken food about 3-4 hours before his death. There can be no dispute about this opinion. The contents of the abdomen and intestines show that the deceased had taken food within 3 or 4 hours before his death. Netrapal Singh died about 09.00-09.30 P.M. It is thus apparent that he had taken his evening meals at about 5.00 P.M. or 6.00 P.M. in the evening of 18.10.1983. There can be no dispute about this opinion. The contents of the abdomen and intestines show that the deceased had taken food within 3 or 4 hours before his death. Netrapal Singh died about 09.00-09.30 P.M. It is thus apparent that he had taken his evening meals at about 5.00 P.M. or 6.00 P.M. in the evening of 18.10.1983. This aspect of the case shows that the prosecution story is not reliable. It is evident that Netrapal was hale and hearty at about 6.00 P.M and was present at his house at that time and took his meals. The prosecution case that he has gone out of his house before 03.00 P.M. and had died before he took his evening meals is proved to be a tissue of lies. 21. We have very carefully gone through the statements of the two eye-witnesses. These eye-witnesses are admittedly at inimical terms with the accused. Accused Daya Ram and Amar Singh are sons of accused Din Dayal. It is admitted that there was litigation between Din Dayal and Netrapal. The complainant Raj Kumar P.W.1 and his father and grandfather were in possession of some land. During consolidation, they were allotted a different Chak and this land was left over as residuary land vested in Gaon Sabha. Raj Kumar P.W.1 has admitted that his father and grandfather continued to be in possession of this residuary land even after the consolidation. Subsequent to the objections filed by Din Dayal, against allotment of burial ground, this residuary land was allotted to the Chak of Din Dayal, but Netrapal and his family members had not delivered the possession of this land on which they had no title. Din Dayal went in the appeal and succeeded in his case. According to the prosecution, revenue authorities reached the place of occurrence and demarcated that portion of the land which was being cultivated by the complainant and delivered possession to Din Dayal. After Din Dayal received possession over this land, he was left with no grievance against the complainant, but naturally the complainant and his family members had immediate cause of grievance. After Din Dayal received possession over this land, he was left with no grievance against the complainant, but naturally the complainant and his family members had immediate cause of grievance. After Netrapal was found dead or was found after he had received injuries at the hands of some unidentified persons, it was most natural that the complainant named Din Dayal and his sons in the FIR because a few hours earlier, he has been belittled at the hands of Din Dayal. The prosecution version itself is full of contradictions. It is alleged that consolidation authorities had visited the spot and demarcated the Chak of Din Dayal that day. As proved by SI Jagdish Singh Rawat P.W.6, Raj Kumar P.W.2 had informed him that during daytime, accused Daya Ram approached Netrapal Singh and asked him to accompany him to the plot where the boundary line between his Chak and the Chak of Netrapal Singh was being demarcated, but the latter stated that he is ill and so he could accompany him. He, therefore, did not go to the Chak, the place of occurrence at the asking of Daya Ram and when he reached there, he found that the three accused were raising a 'mend'. He asked them not to do so at that time, whereupon the accused beat him. Raj Kumar P.W.1, on the other hand, stated that Netrapal Singh had asked Din Dayal to construct 'mend' in the presence of four independent public men. During his examination-in-chief, Raj Kumar P.W.1 had stated that he came to his house at 05.30 P.M. and came to know that his Chak is being measured and that his father had gone along with Daya Ram. He, therefore, went to the plot. During cross-examination, he stated that he came to the house at 03.00 P.M. and his mother informed that his father has gone away. He received information that his father had gone with Daya Ram at 03.45 P.M. and he immediately went to the spot. On the other hand, he stated that as soon as he heard that his father has gone to Chak, he immediately went to the Chak but reached there at nearly 06.00 P.M. when the alleged assault took place. Thus, the statement of Raj Kumar P.W.1 about the time when he reached the place of occurrence and the time when Netrapal Singh had gone to the spot is contradictory. Thus, the statement of Raj Kumar P.W.1 about the time when he reached the place of occurrence and the time when Netrapal Singh had gone to the spot is contradictory. On one hand, it is alleged that Netrapal Singh went with Daya Ram soon after noon and nothing untoward happened till 06.00 P.M. and on the other hand, it is alleged that as soon as Netrapal Singh went to the place of occurrence and found the three accused constructing the 'mend', he objected and the assault immediately took place. Raj Kumar P.W.1 stated that the Investigating Officer recorded his statement at about 10.00 A.M. on 19.10.1983. The Investigating Officer contradicted this version and stated that he recorded at about 10.00 P.M. on 18.10.1983. Raj Kumar P.W.1 stated that he met Jugendra Pal Singh P.W.2 as soon as he came out of his house. Jugendra Pal Sing P.W.2 denied this and stated that he met Raj Kumar P.W.1 outside the house of Gopal Singh. These two witnesses have stated in Court that both of them along with Vijai Pal and Prem Pal went together to the spot. The statements proved by the Investigating Officer show that during their statements under Section 161 Cr.P.C., these witnesses have informed that Raj Kumar P.W.1 went alone and when Jugendra Pal Singh P.W.2, Prem Pal and Vijai Pal heard about the consolidation authorities demarcating the land and came to know that Netrapal Singh had gone alone on the Chak, they went behind Raj Kumar P.W.1. 22. Raj Kumar P.W.1 admitted that several villagers were working in their plots near the place of occurrence. None of the independent witnesses have been examined in the Court. 23. Jugendra Pal Singh P.W.2 has stated that as soon as he came outside the house of Gopal Singh, he met Raj Kumar P.W.1 and the other two witnesses Vijai Pal and Prem Pal were then with Raj Kumar P.W.1. Raj Kumar P.W.1 on the other hand stated that as soon as he came out of the house, he met Jugendra Pal Singh P.W.2, i.e. Jugendra Pal Singh was the first man to meet him and Prem Pal and Vijai Pal met him subsequently. Jugendra Pal Singh P.W.2 stated that Raj Kumar P.W.1 asked the witnesses to accompany him. Raj Kumar P.W.1 on the other hand stated that as soon as he came out of the house, he met Jugendra Pal Singh P.W.2, i.e. Jugendra Pal Singh was the first man to meet him and Prem Pal and Vijai Pal met him subsequently. Jugendra Pal Singh P.W.2 stated that Raj Kumar P.W.1 asked the witnesses to accompany him. This is against the version given under Section 161 Cr.P.C. Raj Kumar P.W.1 stated that he heard every word which was being exchanged between accused and Netrapal Singh. Jugendra Pal Singh P.W.2 on the other hand stated that they could not hear the talks between Netrapal Singh and the accused. 24. Jugendra Singh Pal P.W.2 stated that he did not go to the police station on 18.10.1983, but went to Sakit on 19.10.1983, came back with the Investigating Officer and reached back to the police station at 11.00 A.M. on 19.10.1983. The Investigating Officer denied this. Ex.Kha.1 and the statement of Gangadhar P.W.4 show that the Investigating Officer came back to the police station a 02.50 P.M. on 19.10.1983 and did not reach there earlier. Both Sri Raj Kumar P.W.1 and Jugendra Pal Singh P.W.2 have stated that on 19.10.1983, they remained with the Investigating Officer at the Police Station- Sakit, i.e. up to about 02.50 P.M. On the other hand, the G.D. entry Ex.Kha2 shows that at 12.35 P.M. on 19.10.1983, Raj Kumar P.W.1 and Jugendra Pal Singh P.W.2 were with Constable Shiv Ratan Lal and Constable Surajpal Singh, who had taken the dead body to Etah and that accused Daya Ram was arrested at 12.35 P.M. in the town of Etah at the instance of these two witnesses. Shiv Ratan Lal appearing as P.W.5 stated that Jugendra Pal Singh P.W.2 and Raj Kumar P.W.1 were not with him at the tractor and met him at the mortuary. On the other hand, according to Ex.Kha.2, Raj Kumar P.W.1 and Jugendra Pal Singh P.W.2 were with Shiv Ratan Lal P.W.5 and Suraj Pal Singh at the tractor and that they pointed out Daya Ram, whereupon the policemen took the tractor up to the mortuary, parked it and then chased Daya Ram. 25. According to the prosecution version, accused Amar Singh had a 'phhadwa' with him at the time of occurrence and he caused injuries to Netrapal Singh with this 'phhadwa'. 25. According to the prosecution version, accused Amar Singh had a 'phhadwa' with him at the time of occurrence and he caused injuries to Netrapal Singh with this 'phhadwa'. The postmortem report, however, shows that no injury was caused to Netrapal Singh with any sharp-edged weapon. To explain this, the prosecution witnesses have stated that Amar Singh hit Netrapal Singh by the reverse side of the 'phhadwa'. It is not possible to believe that a person intending to kill will cause injuries from the reverse side of the 'phhadwa' while it would be easier to kill Netrapal Singh by giving a single shot with the blade side of the 'phhadwa'. Amar Singh would hardly have done so because at that time, the four witnesses were running towards the accused and Netrapal Singh and any delay in causing the death of Netrapal Singh would have given him an opportunity to raise alarm and there was every possibility that persons working in the neighbouring plots would have come and caught the accused. The natural conduct of the accused in such circumstances would have been to kill Netrapal Singh as early as possible and run away before they were seen by any independent person. 26. It is thus apparent that none of the two witnesses- Raj Kumar P.W.1 and Jugendra Pal Singh P.W.2 were present at the time of occurrence. When the dead body of deceased Netrapal Singh was found and no independent person was coming forward to depose against the accused whom the informant wanted to implicate either due to enmity or bona fide suspicion, these two witnesses put up a story that they had reached a few seconds before the alleged assault took place. They have, however, contradicted each other on this point. It is apparent that they did not even know the time when deceased Netrapal Singh died. While the witnesses stated that Netrapal was alive till they reached Sakit, i.e a few minutes before the FIR was lodged at 10.00 P.M. To Dr. R.K. Sharma, it was suggested that Sri Netrapal may have died at about 06.00 P.M. Both the witnesses have admitted various enmities between their families and the family of the accused. They have also tried to deny the knowledge of certain other litigations. They have, however, admitted that there were several persons in the village who could have harmed the deceased Netrapal Singh. They have also tried to deny the knowledge of certain other litigations. They have, however, admitted that there were several persons in the village who could have harmed the deceased Netrapal Singh. The defence has filed documents to show that Sri Dilip Singh filed a complaint against Kayam Singh, father of witness Jugendra Pal Singh P.W.2 and others. Documents have also been filed to show that Bitoli Devi filed complaint against deceased Netrapal Singh and that Netrapal Singh himself was a witness against Phool Singh and others. On the application of Netrapal Singh, proceedings under Section 107/116 Cr.P.C. were initiated against Hakim Singh and 14 others. Netrapal Singh also appeared as a witness in Court of the Magistrate against Ram Prakash and others. The defence has also suggested that Netrapal Singh and his father had litigations with Din Dayal. Sri Netrapal Singh was also alleged to have fabricated several documents and instruments of sale of the share of Sri Bala Sahai and Rustam in favour of his brother. Sri Netrapal is also alleged to be accused in cases under Section 399/402 IPC and murder cases. It is also suggested that the police had searched the house of Sri Netrapal on the information that he had given refuge to notorious dacoits- Mahavira and Chhaviram. Thus, there were fair chances of the deceased having been killed by some persons other than the accused. If the occurrence took place while the demarcation of Chak was being made, the kanoongo would have been the best witness to prove this fact, but this consolidation kanoongo was not produced in evidence. Even this much has not been proved that any demarcation was made on that day. 27. In the backdrop of above discussion, we do not see any perversity or illegality in the finding of acquittal. Consequently, the judgment and order of acquittal dated 03.03.1984 passed by Special Judge, (E.C. Act) Etah in Sessions Trial No. 804 of 1983 (State Versus Din Dayal and others) is upheld by us and the appeal lacks merit. 28. Consequently, leave to appeal is refused and so this appeal is also dismissed. Let copy of this order be certified to the court concerned.