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Allahabad High Court · body

2017 DIGILAW 2007 (ALL)

JAGAT v. STATE OF U. P.

2017-08-29

BHARAT BHUSHAN, K.J.THAKER

body2017
JUDGMENT : (Per Hon. Kaushal Jayendra Thaker, J.) 1. This appeal is directed against the judgment and order dated 7.1.1983 passed by 8th Addl. District and Sessions Judge, Allahabad in Sessions Trial No. 54 of 1982, whereby the appellants Jagat and Suraj Bali were found guilty and convicted for the offences punishable under Section 302 IPC read with Section 34 IPC, Section 342 IPC read with Section 34 IPC and Section 323 IPC read with Section 34 IPC. Each of the appellants were sentenced for life imprisonment under Section 302/34 IPC and under Section 342/34 IPC they have been sentenced for six months rigorous imprisonment and further under Section 323/34 IPC they have been sentenced to six months rigorous imprisonment. All the sentences were directed to run concurrently. 2. Prosecution story as disclosed by P.W.2 Raj Bahadur, in brief is that on 3rd October, 1979 at about 7 to 7.15 a.m., P.W.3 Babaoo Kurmi came to the house of informant (Raj Bahadur) and asked him and his brother Gopi (deceased) to go for irrigation of the fields. Thereafter, Gopi, Raj Bahadur and Babaoo Kurmi went to the pumping set of P.W.1 Sarjoo Patel where it was disclosed by Sarjoo Patel that the diesel is not available and hence the water supply could only be available on next day at about 4 a.m. 3. It is further alleged that on 4th October, 1979 at about 4 a.m. Babaoo again came to the house of Raj Bahadur and asked him and his brother Gopi to go for irrigating the fields. Gopi, Raj Bahadur and Babaoo proceeded to the pumping set of Sarju Patel and when they reached in the grove of Chhotai Nai, accused-appellants Jagat, Suraj Bali and their brother Jagdeo (deceased) met them. All of them were allegedly armed with lathis. Jagdeo struck lathi on the head of Gopi who fell down. Babaoo and Raj Bahadur raised alarm and thereupon Jagat and Suraj Bali ran towards them with lathis. Raj Bahadur and Babaoo ran away towards their house and disclosed this incident to Triloki Pandey, Dani Maharaj, Chhedi Thakur and Ram Adhar Patel. Raj Bahadur and Babaoo thereafter along with these persons reached the grove of Chhotai Nai but Gopi was not there. Raj Bahadur and Babaoo ran away towards their house and disclosed this incident to Triloki Pandey, Dani Maharaj, Chhedi Thakur and Ram Adhar Patel. Raj Bahadur and Babaoo thereafter along with these persons reached the grove of Chhotai Nai but Gopi was not there. Sarju Patel told them that appellants Suraj Bali, Jagat and Jagdeo had taken Gopi towards their house and they were saying that he shall be implicated in a false case. 4. Thereafter Raj Bahadur, Suraj Patel and Babaoo went to the house of the accused persons and saw that accused Jagat, Suraj Bali and their brother Jagdeo were beating Gopi with Danda and Lathi. They asked the accused persons and Jagdeo not to beat him but assailants did not pay any heed. Informant (P.W-2 Raj Bahadur) thereafter went to the police Station and lodged a First Information Report (Ex-Ka-2) scribed by one Krishna Murari at Police Station Soraon, District Allahabad on 4.10.1979 at 7.15 a.m. 5. Lateron Gopi died on the spot as a result of the injuries allegedly caused by the accused appellants and one Jagdeo. Accused Jagdeo is said to have died while going to the Jail after arrest. Relevant entries were made in the General Diaries of the police station. Inquest proceedings were initiated and completed. Inquest report (Ex-Ka-8) was prepared and the dead body of deceased was sent for postmortem. 6. The matter was initially investigated by P.W.6 Sub Inspector Sri Raja Ram Dubey, who conducted the initial investigation of the case. He also prepared the site plan (Ex-Ka-14), obtained samples of simple earth and blood soaked earth, prepared memorandum of recovery (Ex-Ka-15), recorded the statements of witnesses and thereafter filed charge sheet (Ex-Ka-6) against appellants Jagat and Suraj Bali under Sections 304, 342, 323 IPC. 7. Trial judge, after commitment of the case, framed charges against the appellants Jagat Pasi and Suraj Bali under Sections 323/34, 342 IPC and Section 304/34 IPC on 13.05.1982. However, the trial judge during the course of trial, amended the charge to Section 302/34 IPC, 323/34 IPC and Section 342/34 IPC vide order dated 22.07.1982. Both the accused persons denied the charge and claimed to be tried and further they have pleaded not guilty and claimed false implication in the case due to enmity. 8. However, the trial judge during the course of trial, amended the charge to Section 302/34 IPC, 323/34 IPC and Section 342/34 IPC vide order dated 22.07.1982. Both the accused persons denied the charge and claimed to be tried and further they have pleaded not guilty and claimed false implication in the case due to enmity. 8. During the course of trial, prosecution adduced the evidence of P.W.1 Sarju Patel, P.W.2 Raj Bahadur (complainant/eye witness), P.W.3 Babaoo (eye witness), P.W.4 Head Moharrir Tej Narain Singh (formal witness), P.W-5 Dr. N.B. Pant (conducted autopsy), P.W.6 Sub Inspector Sri Raja Ram Dubey (conducted initial investigation) and P.W.7 Constable Daya Ram (formal witness). Statements of accused persons were recorded under Section 313 Cr.P.C. wherein all the accused persons denied the allegations and have stated that they have been falsely implicated in the case on account of enmity. They also produced D.W-1 Smt Chameli in their defence. 9. It is pertinent to point out that P.W.6 Dr N.B. Pant, who was posted as Medical Officer in T.B.S. Hospital, Allahabad on 5.10.1979 had examined the deceased Gopi on that day at about 3 p.m., prepared the autopsy report (Ex-Ka-7) and found the following ante-mortem injuries on his person, which is reproduced as under:- 1. Lacerated wound 3 cm X 2 cm X scalp deep over right partial bone area of skull and bone below had fractured. 2. Multiple contusions over from of fore head in an area of bone clad. 3. Contusion of 3 cm X 2 cm over left cheek. 4. Contusion 4 cm X 2 cm over top of left shoulder. 5. Contusion 4 cm X 2 cm X 1.5 cm on from back foreards or upward both the sides of back giving an impression that sound hard objects were pressed on the back in X fashion. There was an indication of dislocation of 2nd Cervical vertibra as a result of above trauma leading to asphyxia. Internal examination had shown dislocation of 2nd Vertebra 6. Contusion 6 cm X 1 cm over back of left side chest. 7. Contusion 4 cm X 1 cm over left side back of waist area. 8. Multiple contusion all over right arm left are, back of both elbow, back of both forearm and back of both hands with an places giving a complete circles as some thin were tied up round limbs above both wrists. 9. 7. Contusion 4 cm X 1 cm over left side back of waist area. 8. Multiple contusion all over right arm left are, back of both elbow, back of both forearm and back of both hands with an places giving a complete circles as some thin were tied up round limbs above both wrists. 9. Contusion 4 cm X 2 cm over front of left knee. 10. Lacerated wound 4 cm X 2 cm X muscle deep over outer side middle part of left leg. 11. Lacerated wound 2 cm X 5 cm X bone deep over outer aspect of left heal. 12. Lacerated wound 2 cm X 1 cm X bone deep over back of right heel. 13. Abnormal bony mobilit of both bones of right leg lower leg with fracture of both bones. In his opinion, the cause of death was shock and hemorrhage due to the injuries caused to him. 10. On conclusion of the trial, the then VIIIth Addl. Sessions Judge, Allahabad was convinced of the prosecution evidence and held the appellants guilty of offence under Section 302/34 IPC, 342/34 IPC and Section 323/34 IPC and therefore all the appellants were convicted and sentenced as aforesaid vide judgment and order dated 07.01.1983. This judgment is under challenge before this court. 11. We have heard Sri P.K. Dubey, learned counsel for the appellants Jagat and Suraj Pal and Sri Rajeev Sharma, learned AGA for the State. 12. It is contended by learned counsel for the appellants that the prosecution has failed to examine any independent witness despite availability of several witnesses and the examined witnesses are interested and partisan witnesses. Learned counsel appearing for appellants has further contended that the conviction recorded and sentenced imposed on the appellants is against the weight of evidence on record. It is further contended that the there is absolutely no evidence to connect the appellants with the crime in question. It is also contended by learned counsel appearing for appellants that the prosecution has failed to establish its case beyond reasonable doubt because of material discrepancies in the prosecution evidence. 13. Learned counsel for the appellants has further submitted that the motive put forward by the prosecution has not been established by the independent witnesses and even the story of motive itself is weak. Presence of eye witnesses on the spot is highly doubtful. 13. Learned counsel for the appellants has further submitted that the motive put forward by the prosecution has not been established by the independent witnesses and even the story of motive itself is weak. Presence of eye witnesses on the spot is highly doubtful. There are significant contradiction in the evidence of prosecution witnesses creating doubt about the presence of the witnesses on the spot. 14. On the other hand, learned AGA has strongly opposed the contentions raised by the learned advocate for the present appellants and has submitted that the trial court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence produced before it and hence, no interference is called for and the appeals deserve to be dismissed. 15. In light of the decision rendered by the Apex Court in R. Shaji vs. State of Kerala, AIR 2013 SC 651 , it would be relevant for us to not only refer to testimony of witnesses but to also give our findings on the aspect whether guilt is proved to the hilt or not. In that decision, the Apex Court held that in matter of appreciation of evidence of witnesses, it is not the number of witnesses but, the quality of their evidence, which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact. It is a time honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. 16. Prosecution has examined three eye witnesses in this case to prove the guilt of the accused. The evidences of all the three witnesses have been discussed by the trial court. We have sifted the evidences very closely. The evidences are not completely reproduced here verbatim, with a view to see that the judgment does not become bulky. However, same have been read over again and again by us. 17. On going through the depositions of alleged eye witnesses namely P.W.1 Sarju Patel, P.W-2 Raj Bahadur and P.W.3 Babaoo what we find that the testimonies rendered by these witnesses are not natural and consistent with the normal human conduct. 18. However, same have been read over again and again by us. 17. On going through the depositions of alleged eye witnesses namely P.W.1 Sarju Patel, P.W-2 Raj Bahadur and P.W.3 Babaoo what we find that the testimonies rendered by these witnesses are not natural and consistent with the normal human conduct. 18. Entire prosecution case depends on the eye witness account of P.W.1 Sarju Patel, P.W.2 Raj Bahadur (informant) and P.W.3 Babaoo. Unfortunately, the presence of these witnesses on the spot is highly doubtful. P.W.1 Sarju Patel infact was sleeping at his tube-well at the time of incident. Prosecution claims that deceased Gopi, P.W.2 Raj bahadur and P.W.3 Babaoo were coming to his tube-well for the supply of water for the purposes of irrigation. But they were interrupted prior to that at the orchard of one Chotai Nai meaning thereby that P.W.1 Sarju Patel was not present at the initiation of stated incident. His testimony indicates that that he heard the noise emanating from the alleged place of occurrence and thereafter reached there and found that Gopi (deceased) was being beaten by the assailants Jagat Pasi, Suraj Bali and Jagdeo. This is the core of the prosecution story. However, his testimony at one place indicates that when he reached the place of occurrence accused persons were dragging deceased Gopi towards their residence shouting that they will falsely implicate him in some case. In this statement P.W-1 Sarju Patel did not acknowledge the presence of P.W.2 Raj Bahadur and P.W.3 Babaoo. Infact, he further claims that after some time P.W.2 Raj Bahadur, Babu Lal, Triloki Nath, Ram Adhar Pandey, Ram Adhar Patel, Chedi Thakur and Dani Maharaj came at the place of occurrence and questioned him. He communicated that deceased Gopi had been taken by accused persons towards their residence. This testimony indicates Raj Bahadur and Babaoo were not present at the initial stage of occurrence. 19. It is further claimed that when P.W-1 Sarju Patel and others went to the residence of accused Suraj Pasi they found that accused persons were beating Gopi with Lathi etc. Simultaneously, they were pouring excreta of pig and urine in his mouth. When challenged, accused persons ran away from the spot. It is claimed that they arranged a vehicle to take Gopi (deceased) to the hospital but he succumbed to his injuries at 7 a.m. on the spot. Simultaneously, they were pouring excreta of pig and urine in his mouth. When challenged, accused persons ran away from the spot. It is claimed that they arranged a vehicle to take Gopi (deceased) to the hospital but he succumbed to his injuries at 7 a.m. on the spot. Information of which was given to the police station by Chaukidar. 20. Testimony of P.W-1 Sarju Patel creates doubt about the presence of P.W.2 Raj Bahadur and P.W.3 Babaoo on the spot. Contours of the story itself indicates that Sarju Patel (P.W.1) was also not present on the spot. Even if it is accepted that he was present at his tube-well that too would indicate that the initiation of incident near the orchard of Chotai Nai was not witnessed by him. His subsequent conduct is also very strange and unnatural. It is claimed by Sarju Patel (P.W.1) in paragraph no. 10 of his testimony that he did not accompany deceased Gopi to the residence of Jagat Pasi. He nonchalantly went to ease himself in the jungle and went to the residence of accused Jagat Pasi after half an hour. Claim is that he reached the house of Jagat Pasi at 6.00 a.m. In his statement, in paragraph no. 11 again presence of P.W.2 Raj Bahadur has not been indicated. There are far too many discrepancies in the testimony of P.W.1 Sarju Patel to place any reliance upon him. At another place he claimed that he reached the residence of accused Jagat Pasi in the company of Babaoo (P.W.3) and Raj Bahadur (P.W.2). It shows that even Babau and Raj Bahadur were not present on the spot. It also indicates that P.W.2 Raj Bahadur and P.W.3 Babaoo also reached the place of occurrence after P.W-1 Sarju Patel had eased himself in the Jungle. 21. We have carefully perused the testimony of P.W-1 and we do not think that his testimony can be relied upon. His presence near the orchard of Chotai Nai at the initial stage of incident and at the residence of Jagat Pasi is not trustworthy. 22. Similarly, testimony of P.W.2 Raj Bahadur and P.W.3 Babaoo are also not reliable. Stated conduct of P.W.2 Raj Bahadur and P.W-3 Babaoo is rather strange. Three persons armed with Lathi and danda had allegedly assaulted the deceased Gopi and yet they did not save Gopi. 22. Similarly, testimony of P.W.2 Raj Bahadur and P.W.3 Babaoo are also not reliable. Stated conduct of P.W.2 Raj Bahadur and P.W-3 Babaoo is rather strange. Three persons armed with Lathi and danda had allegedly assaulted the deceased Gopi and yet they did not save Gopi. Both of them claimed to have rushed towards the village about informing this incident to other persons. Both of them were not assaulted by accused persons. P.W-1 Sarju Patel claims that there was enough light on the place of occurrence while P.W-2 Raj Bahadur has claimed that there was darkness at the spot. These discrepancies have not been explained by the prosecution. 23. P.W-2 Raj Bahadur has admitted that he did not take any spade (phawra) for irrigation purpose. This too is strange behavior. Any body going to receive water from the tube-well of others would obviously need agriculture implements yet admittedly these witnesses did not have any implements. 24. P.W-2 Raj Bahadur has claimed in paragraph no. 5 of his testimony that when he raised alarm at the time of incident no one came on the spot. He did not indicate presence of P.W.1 Sarju Patel either. Strangely P.W.2 Raj Bahadur, brother of deceased Gopi has admitted that even at the residence of accused Jagat Pasi he did not try to help out his injured brother. He claims that when he came back from police station he found corpse of his brother, meaning thereby that his presence even at the time of second incident allegedly occurred near the residence of accused persons itself is not completely trustworthy. 25. Similarly, presence of P.W-3 Babaoo at the place of occurrence is doubtful. He has claimed that he went to the tube-well of Sarju Patel (P.W-1) whereupon Sarju Patel communicated that accused persons had dragged away deceased Gopi. At one place he claims that accused persons were actually beating deceased Gopi and also pouring excreta of Pig in his mouth but in paragraph no. 11 of his testimony he admitted that he only found injured Gopi near the residence of accused Jagat Pasi and that no excreta of any kind was poured into his mouth in his presence. He has also admitted making contrary statements in paragraph no. 12 of his testimony. 26. We have carefully examined the testimonies of all the witnesses. Prosecution has failed to demonstrate the presence of these witnesses on the spot. He has also admitted making contrary statements in paragraph no. 12 of his testimony. 26. We have carefully examined the testimonies of all the witnesses. Prosecution has failed to demonstrate the presence of these witnesses on the spot. It is pertinent to point out that accused Jagdeo also died subsequent to this incident. It appears that some proceedings were also drawn against the police personnel. Death of Jagdeo in the wake of incident has not been explained by the prosecution. Defence has claimed that deceased died in an incident involving women of family of accused persons. There are some tell-tale sign that this story cannot be brushed aside completely. Defence set up by appellants is consistent with the available evidence. 27. Even if the prosecution story is accepted as a gospel truth it would reveal that assault was made by Jagdeo who also succumbed to injuries sustained in the said incident subsequently. Involvement of other two persons namely Jagat and Suraj Bali has not been established by the satisfactory evidence. It appears that both of them have been held guilty with the aid of Section 34 IPC only. 28. The charge under Section 34 of IPC is also not rightly brought home as per available evidence on record. Prosecution evidence do not demonstrate participation of appellants in the crime. Section 34 IPC provides that when any criminal act is done by several persons in furtherance of common intention of all, each of such person is liable for that act in the same manner as if, it were done by him alone. However, it is essential for the application of Section 34 IPC that a person who aids commission of crime must be physically present at the actual commission of crime for the purpose of facilitation or promoting the offence, commission of which is aimed of by all person involved. The essence of Section 34 IPC is simultaneous meeting of minds of persons participating in the criminal act to bring about the particular result. 29. Can a person be convicted merely for his physical presence at the place of occurrence with the aid of Section 34 IPC? We are afraid, the answer must be no. Physical presence is necessary but prior meeting of mind is equally necessary. 29. Can a person be convicted merely for his physical presence at the place of occurrence with the aid of Section 34 IPC? We are afraid, the answer must be no. Physical presence is necessary but prior meeting of mind is equally necessary. It is necessary to demonstrate the actual physical presence of person involved at the place of occurrence but promotion and facilitation of the crime are also required for convicting a person with the aid of Section 34 IPC. Vicarious liability recognized under Section 34 IPC is the rule of evidence and does not create a substantive offence. Section gives statutory recognition to the principle that if more than two persons intentionally do a thing jointly, it is to be to treated as if each of them had done it individually. The very definition of Section 34 IPC pre-supposes prior meeting of minds which requires prearranged plan of all accused participating in an offence. If this court accepts the prosecution evidence despite the existence of significant discrepancies even then merely the physical presence of surviving appellants can be demonstrated. But the physical presence of all accused persons, by itself is not sufficient to convict all persons with the aid of Section 34 IPC. A prior meeting of minds; a pre arranged plan or some sort of facilitation need to be established for the use of Section 34 IPC. 30. In the instant case, the eye witness account has merely disclosed that appellants Jagat and Surajbali were present at the spot. Initially only their presence was shown. Later on significant improvements were made in the prosecution story and all appellants were shown to have armed with lathi. We believe that said charge also cannot be made applicable as the evidence on record also do not conclusively show whether stated incident occurred in the orchard or at the residence of accused. One of accused Jagdeo died during the investigation which also create doubt about the prosecution theory of beating the accused by sticks (lathi) by two accused persons. So called Lathi was also not recovered. 31. Even if, it is assumed that accused Jagat and Suraj Bali were present near the residence that by itself would not justify the applicability of Section 34 IPC. 32. We have carefully examined all materials on records. There are far too many discrepancies in the evidence of prosecution. So called Lathi was also not recovered. 31. Even if, it is assumed that accused Jagat and Suraj Bali were present near the residence that by itself would not justify the applicability of Section 34 IPC. 32. We have carefully examined all materials on records. There are far too many discrepancies in the evidence of prosecution. An attempt to manufacture the evidence is palpable. We believe that the genesis of case is different and is not compatible with the prosecution story and prosecution evidence. We have noticed an attempt to withhold the independent evidence. Stated incident allegedly occurred in the presence of several independent persons and yet no independent witness has been produced and that the alleged prosecution witnesses have not satisfactorily supported the basic contours of prosecution story. In view of aforesaid discussion, we find this to be a case where a reasonable doubt arises as to the guilt of the appellants. 33. The appeal is accordingly allowed giving benefit of doubt to the appellants. The impugned judgment and order dated 7.01.1983 is hereby set aside. The appellants are on bail and their bail and surety bond stand discharged. 34. Office will certify this order to the court concerned within 15 days. Trial court shall thereafter communicate compliance of this judgment within a month thereafter.