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2017 DIGILAW 2906 (ALL)

Bhopal Singh v. State of U. P.

2017-12-12

KRISHNA MURARI, RAVINDRA NATH KAKKAR

body2017
JUDGMENT : Krishna Murari, J. 1. This criminal appeal has been preferred against the judgment of conviction and order of sentence dated 21.9.1983 passed by Vth Additional Sessions Judge, Meerut in Sessions Trial No.126 of 1980 convicting the appellants under Sections 302/34 I.P.C. and sentencing them to imprisonment of life and to pay a fine of Rs.5,000/-each and in default of payment of fine to further undergo three years rigorous imprisonment. Further convicting the appellants under Section 449 I.P.C. and sentenced them to three years rigorous imprisonment. Both the sentences were ordered to run concurrently. 2. As the appellant no.1 Bhopal Singh died, the appeal filed by him stands abated vide order dated 4.8.2016. 3. According to prosecution story, as per chik FIR, date of incident is 25.9.1979 at about 5.00 to 5.15 a.m. morning. Report has been lodged at police station on the same day at about 13.15 p.m. Distance of the police station from the place of occurrence is stated to be 6 miles. Its special report has been sent to the higher authorities on 26.9.1979. The informant of the case Mehar Singh is the real brother of deceased Fateh Singh. Named accused are Bhopal Singh, Rajbal Singh and Ombir Singh. Weapon assigned to the accused appellants is 'farsa'. Initially the FIR was registered under Sections 323, 324 I.P.C. against the above named accused, but after investigation charge sheet had been filed against the accused appellants under Sections 323, 324 and 304 I.P.C. 4. The prosecution story as unfolded in the FIR is that on the alleged date of incident, i.e. 25th September, 1979 at about 5.00 a.m. informant Mehar Singh was sleeping in his house. Witnesses Tuki Singh and Rashi Singh of the same village came to his place and informed that his brother Fateh Singh was lying on his cot unconscious and was profusely bleeding. They also informed that Bhopal Singh, Rajbal Singh and Omvir Singh of the same village had been seen running from the 'gher' of Fateh Singh having 'farsas' in their hands. After receiving the information, complainant rushed to the place where his brother was found lying unconscious. Complainant brought his brother to Meerut Medical College and on the basis of the medical report he lodged the FIR. After receiving the information, complainant rushed to the place where his brother was found lying unconscious. Complainant brought his brother to Meerut Medical College and on the basis of the medical report he lodged the FIR. Further it transpires from the record that Fateh Singh died in the hospital in the night of 25/26th September, 1979 due to fatal injuries inflicted on him. The motive behind the occurrence is said to be enmity of the deceased with accused Bhopal Singh, Rajbal Singh and Ombir Singh and it was due to the fact that prior to 4 to 5 months of the incident deceased Fateh Singh had moved an application against the accused Bhopal Singh and Rajbal Singh to Superintendent of Police, Meerut and in addition to that he had also filed a criminal case against the accused in the court of Magistrate. That was said to be the motive and cause of the commission of the crime. It also transpires from the evidence that complainant Mehar Singh went to the police chauki at Medical College to lodge report but the police asked him to come with some other person thereafter he got the report written from Mam Chandra and went to the police station thereafter his report was lodged. After the case was registered investigation was carried out by Sub Inspector Chhaju Singh who after completion of the investigation submitted a charge sheet under Sections 323, 324, 304 I.P.C. against all the three accused persons. 5. Prosecution produced as many as 11 witnesses which included Mehar Singh, the real brother of the deceased as P.W.1, Tuki Singh P.W.3, Rashi Singh P.W.9 who are witness of fact and had seen the accused persons coming out from the 'gher' of Fateh Singh. P.W.4 Suraj Singh had prepared the panchayatnama Ex.Ka-4 at Medical College, Meerut. He also prepared relevant police papers with regard to the dead body of Fateh Singh and had sent the corpus of the deceased for post mortem. P.W.5 Constable Sher Pal Singh brought the corpus for post mortem. P.W.6 Devi Ram Head Moharir at Police Station Kharkoda deposed that he received the papers and sealed bundle which were sent from chauki Medical College and he made entry in the G.D. on 27.9.1979 at 6.15 p.m., copy of the G.D. is Ext.Ka-6. P.W.5 Constable Sher Pal Singh brought the corpus for post mortem. P.W.6 Devi Ram Head Moharir at Police Station Kharkoda deposed that he received the papers and sealed bundle which were sent from chauki Medical College and he made entry in the G.D. on 27.9.1979 at 6.15 p.m., copy of the G.D. is Ext.Ka-6. P.W.8 Head Constable Gajendra Singh had stated that he lodged the FIR at police chauki of the Medical College on 25.9.1979 at 1.15 p.m. on the basis of which he prepared the chik report and made its entry in G.D., copy of which is Ext.Ka-8. He further stated that initially the case was registered under Sections 323/324 I.P.C. on the basis of the written report chik FIR which is Ext.Ka-9. 6. P.W.7 Dr. Vijay Singh had conducted the post mortem of the dead body of the deceased Fateh Singh on 26.9.1979 at about 2.30 p.m. and he found a stitched wound of 18 c.m. long extending from right side head vertically downwards to right face (4 c.m. in front of right ear) in a straight line 14 stitches were present. On internal examination he found that the right parital and temporal bones were cut. Brain was congested. Stomach was empty and opined that the cause of death was due to shock and haemorrhage, as a result of head injury. Post mortem report Ext.Ka-7 was proved by this witness. He also stated that the injuries appear to have been caused by 'farsa' and were sufficient to cause death. 7. P.W.2 Dr. D.D. Agarwal, who had initially examined the injuries of Fateh Singh on 25.9.1979 at 8.10 a.m., got the following injuries on the body of deceased:- “Incised wound 17 c.m. x 4 c.m. on parital region right side 5 c.m. from right ear. The injuries were bone deep. Incised wound 5 c.m. x 5 c.m. on right knee joint. Injury no.1 was caused by sharp edged weapon and its duration was fresh. Injury no.2 was also caused by sharp edged weapon. These injuries could be caused by farsa at about 5 a.m. on the alleged day. He proved injury report Ext.Ka-2.” 8. In this way the testimony of P.W.2 and P.W.7 relates with the medical evidence. 9. P.W.10 Mam Chandra is the scriber of the FIR. He deposed that on the dictation of the complainant Mehar Singh he had written the report which is Ext.Ka-3. He proved injury report Ext.Ka-2.” 8. In this way the testimony of P.W.2 and P.W.7 relates with the medical evidence. 9. P.W.10 Mam Chandra is the scriber of the FIR. He deposed that on the dictation of the complainant Mehar Singh he had written the report which is Ext.Ka-3. He further stated that Sub Inspector took blood stained clothes of the deceased Fateh Singh and proved its fard Ext.Ka-10 and Ka-11. P.W.11 Sub Inspector Chhaju Singh investigated the case and prepared site plan Ext.Ka-12 and stated that during investigation the case was converted under Section 304 I.P.C. and after completing investigation he had filed charge sheet Ext.Ka-13 against the accused. After close of the prosecution evidence statements of the accused under Section 313 Cr.P.C. were recorded by the trial judge in which the accused had denied the allegation levelled against them and stated that they have been falsely implicated in this case. 10. Heard Shri P.K. Singh and Shri I.P.S. Tomar, learned counsel for the surviving appellants and learned A.G.A. for the State. 11. At the very outset learned counsel for the appellants made submission that the main accused Bhopal Singh who was stated to be armed with 'farsa' had already died and the appeal qua him stands abated. The other two accused are said to be armed with lathis in their hands. Neither any medico legal nor any ante mortem injuries were found to be caused by lathis. He further contended that the motive assigned against the accused is said to be that 4 to 5 months prior to this incident deceased Fateh Singh had moved an application against the accused Bhopal Singh and Rajbal Singh to Superintendent of Police, Meerut and in addition to that he had also filed a criminal case against the accused in the court of Magistrate, which itself makes the motive very weak and highly improbable and the prosecution himself has admitted that crime was committed due to enmity and the accused had already pleaded that they have been falsely implicated due to enmity. 12. It is further contended that in such a fact situation the case being of a circumstantial evidence, motive plays an important role. It is also submitted that in the facts and circumstances the presence of the witnesses at the place of occurrence appears to be doubtful. The medical evidence does not support the prosecution eye version account. 12. It is further contended that in such a fact situation the case being of a circumstantial evidence, motive plays an important role. It is also submitted that in the facts and circumstances the presence of the witnesses at the place of occurrence appears to be doubtful. The medical evidence does not support the prosecution eye version account. There is no recovery of any weapon from the accused appellants. There is contradiction and improvement in the statement of the fact witnesses. Lodging of the FIR with an inordinate delay has not been properly explained. The participation of the accused and the commission of the crime is not cogently proved by tendering reliable and believable evidence. Impugned judgment of conviction and order of sentence is against the weight of evidence and this appeal deserves to be allowed and accused are entitled for acquittal. 13. Per contra, learned A.G.A. supported the impugned judgment of conviction but has admitted this fact that none of the witnesses had seen the commission of the crime by these accused persons at the place of occurrence as alleged but only evidence against them is that they had seen them armed with farsa and lathis at the place of occurrence. It is also admitted that after completion of the investigation charge sheet was submitted against the accused under Sections 323, 324 and 304 I.P.C. but the accused had been charged and convicted under Section 302/34 and 449 I.P.C. and lastly argued that judgment of conviction is based on cogent, consistent and credible evidence and reasoning has also been assigned in arriving to the conclusion of the guilt of the accused so this appeal deserves to be dismissed. 14. We have given our considered thought to the arguments as raised by both the parties and perused the paper book along with the lower court record. We find merit in the argument of the learned counsel for the surviving appellants due to the following reasons :- (i) After investigation accused have been charge sheeted under Section 323, 324, 304 I.P.C. but the conviction was recorded under Section 302/34 and 449 of I.P.C. (ii) Secondly, the entire prosecution story is based on circumstantial evidence. We find merit in the argument of the learned counsel for the surviving appellants due to the following reasons :- (i) After investigation accused have been charge sheeted under Section 323, 324, 304 I.P.C. but the conviction was recorded under Section 302/34 and 449 of I.P.C. (ii) Secondly, the entire prosecution story is based on circumstantial evidence. Initially prosecution version as stated in F.I.R. is that at the place of occurrence during commission of crime, two witnesses had seen the accused persons coming out from the 'gher' of the deceased Fateh Singh armed with 'farsa' in their hands which was later developed that the accused Bhopal Singh was armed with 'farsa' and other two accused were seen armed with lathis in their hands. It is important to mention that in the FIR all the accused persons are alleged to have been seen armed with farsas. For the first time before the court the fact witnesses stated that Bhopal Singh was seen armed with farsa and other two accused persons Rajbal Singh and Ombir Singh were seen armed with lathis. So during trial we find important and material improvement in the testimony of the fact witnesses. Further it is relevant to mention that the injured victim Fateh Singh was taken to the hospital where he was medically examined by P.W.2 Dr. D.D. Agarwal who examined the injures on the body of Fateh Singh at 8.10 a.m. and found two incised wounds so the use of lathi at the time of assault is ruled out. Further ante mortem injuries which have been proved by P.W.7 Dr. Vijay Singh who conducted the post mortem examination found one stitched incised wound. So there is a difference between the number of injuries and the use of lathi at the time of commission of crime which is alleged to be in the hands of the other two accused persons. Thus we find that the medical evidence adduced does not support the eye version account tendered by the fact witnesses. 15. Hon'ble Apex Court in 2008 (1) Crimes III (S.C.) Kapildeo Mandal & others Vs. State of Bihar has held that in case of inconsistency in evidence of witnesses and the trustworthy medical evidence accused would be entitled to benefit of doubt. 15. Hon'ble Apex Court in 2008 (1) Crimes III (S.C.) Kapildeo Mandal & others Vs. State of Bihar has held that in case of inconsistency in evidence of witnesses and the trustworthy medical evidence accused would be entitled to benefit of doubt. (iii) Thirdly, the incident is alleged to be at the early morning of 5.00 to 5.15 a.m. Medico legal was conducted at 8.10 a.m. FIR was lodged at 1.15 p.m. The explanation of delay stated by the informant is that he went to the police chauki Medical College, but the Constable had not lodged the FIR and instead he asked the informant to come with some other person thereafter one Mam Chandra P.W.10 scribed the report and on the basis of which FIR was lodged at police station. This explanation under the fact and circumstances as stated above found to be not convincing and credible. (iv) Fourthly, it has come in the evidence of the fact witnesses, who had seen the accused persons running away from the place of occurrence armed with weapons went to the place of incident and found deceased Fateh Singh lying on his cot profusely bleeding in an unconscious state. Thereafter these witnesses went to the place of his brother Mehar Singh, informant of the case. They waked him up thereafter they went to the place of incident. 16. Now the question arises that incident is alleged to be of early morning of the month of September and the place of incident is alleged to be adjacent to the passage of the village and the fact situation is that his brother Mehar Singh, who is informant of the case, was sleeping adjacent to a place near his house, but it is unnatural and highly improbable that there was no scream or any noises on the part of the victim, when he was attacked. This circumstance in itself is highly unnatural. These circumstances go against the prosecution and in favour of the accused. Further to add that if motive of the prosecution version is taken to be true at its face value that the assault was made due to previous enmity of 4 to 5 months prior to the incident then it becomes a relevant factor as enmity is a double edged weapon. Further to add that if motive of the prosecution version is taken to be true at its face value that the assault was made due to previous enmity of 4 to 5 months prior to the incident then it becomes a relevant factor as enmity is a double edged weapon. The complainant may falsely implicate the accused persons due to this enmity or might be the cause of the assault on the part of the accused persons. In that situation prosecution is required to prove the guilt against the accused with a high quality of independent witness. As we have already observed that in this case none had seen the accused persons assaulting with their weapons on the body of the deceased, the presence, involvement and complicity in commission of the crime by the accused person had not been witnessed by any of the eye witness. The only thing which the prosecution tried to prove is that the accused were running from the place of occurrence with weapons and that too found to be not acceptable because earlier in FIR the presence of the accused persons are alleged to be armed with a sharp edged weapon, i.e. farsa in their hands and during trial the prosecution made an improvement of this fact by tendering that accused Bhopal Singh was armed with a farsa and other two accused, namely, Rajbal Singh and Omvir Singh were armed with lathis and further on medical examination lathi is found not have been used in the commission of crime. This inconsistency, to our mind, is nothing but an improvement in the prosecution case in order to explain the injuries sustained by the deceased at the time of occurrence, which was deliberately developed after seeing the medical examination of the deceased. Further there is one major contradiction to the extent that witnesses had stated in their testimony that blood stained earth was taken from the place of occurrence but the Investigating Officer P.W.11 Chhaju Singh in his statement stated that he did not find blood stained mud at the place of occurrence. Further the evidence of the fact witness P.W.9 Rashi Singh would reveal that his house is at a distance of 100 yards from the place of occurrence while another witness Tukki Singh stated that his house is about at a distance of 100 to 125 yards from his chak. Further the evidence of the fact witness P.W.9 Rashi Singh would reveal that his house is at a distance of 100 yards from the place of occurrence while another witness Tukki Singh stated that his house is about at a distance of 100 to 125 yards from his chak. There is inconsistency and discrepancy in the statement of testimony of P.W.3 Tukki Singh and P.W.9 Rashi Singh on the point of their presence on the spot. They have stated the occasion of their presence at the place of occurrence for the different purposes. A microscopic analysis of the veracity of the testimony goes to show that presence of the witnesses on the scene of crime was doubtful. 17. To sum up the case, we find that on appraisement of the evidence of the prosecution tendered in this case, the delay in FIR is not properly explained and medical evidence tendered in this case does not support the eye version account, the motive alleged by the prosecution, under the facts and circumstances, found to be of a very weak type and highly improbable. There is material contradiction and improvement in the testimony of the fact witnesses. Their presence at the place of occurrence is doubtful. Lastly, the presence, involvement and complicity in the commission of crime by the surviving appellants accused is found to be not proved beyond doubt. 18. Consequently, we are of the opinion that judgment and order of sentence is liable to be set aside and appeal deserves to be allowed. 19. Accordingly, the judgment of conviction and order of sentence dated 21.9.1983 convicting the surviving appellants, namely, Rajbal Singh and Ombir Singh is set aside and they are acquitted of the charges levelled against them. 20. In case the above named surviving accused-appellants are on bail, their bail bonds and sureties bonds are cancelled. The sureties are discharged from their liabilities. 21. Let a certified copy of the judgment be transmitted to the court concerned for information and necessary compliance.