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2018 DIGILAW 1223 (ALL)

BALRAM v. STATE OF U. P.

2018-05-16

BALA KRISHNA NARAYANA, RAJIV GUPTA

body2018
JUDGMENT By the Court.—Heard Sri Munna Babu, learned counsel for the appellants and Smt. Manju Thakur, learned AGA for the State. 2. This appeal is directed against the judgment and order dated 7.11.2012 passed by Special Judge, (Dacoity Affected Area), Farrukhabad in S.T No. 426/2008 (State v. Balram and another) by which appellant, Balram and co-accused Gajraj were convicted and sentenced to life imprisonment and a fine of Rs. 5000/- each and in default of payment of fine two years additional rigorous imprisonment under Section 302 IPC and five years rigorous imprisonment and a a fine of Rs. 3000/- each and in default of payment of fine one year additional simple imprisonment under Section 201 IPC. 3. Briefly stated the facts of this case are that P.W. 1 (informant) Kamlesh Kumar Singh son of Dafedar Singh resident of Bahorikpur, Police Station Jahanganj, District Farrukhabad gave a written report Ext. Ka1 on 29.5.2008 at 14:30 hours alleging therein that his elder brother, Vijayveer Singh son of Dafedar Singh resident of Bahorikpur, Police Station Jahanganj, District Farrukhabad had gone to guard his field at about 11 p.m. on 28.5.2008. However, when he did not return till late night, he and his family members became anxious and started searching for him. Ka1 on 29.5.2008 at 14:30 hours alleging therein that his elder brother, Vijayveer Singh son of Dafedar Singh resident of Bahorikpur, Police Station Jahanganj, District Farrukhabad had gone to guard his field at about 11 p.m. on 28.5.2008. However, when he did not return till late night, he and his family members became anxious and started searching for him. Raghuvir Singh son of Sundar Singh and Ramanuj @ Bablu both residents of Village Bahorikpur met the informant on 29.5.2008 and told him that they had seen his brother Vijayveer Singh at about 6 p.m. with Balram (appellant) son of Suwalal resident of Nagla Roop and Gajraj son of Brajlal resident of Behta going somewhere on Balram’s tractor on which he and Arun Kumar son of Dafedar Singh, Uday Singh son of Veerbhan Singh, Rajveer Singh son of Deep Singh, Ranveer Singh son of Bachan Singh, Udaiveer Singh son of Bheekham Singh, Raghuvir Singh son of Sundar Singh and Ramanuj set out in the search of Balram and Gajraj and when they reached near the tubewell of Chunni Lal on the banks of river Kali, they saw Balram and Gajraj who upon noticing the informant and the other villagers tried to flee but they were apprehended by the informant and the other villagers after giving them a short chase at about 12 noon and on being strictly interrogated and thrashed by the informant and the other villagers they confessed that they had committed the murder of brother of P.W. 1 Kamlesh Kumar Singh and concealed his dead body in the river. On being pressurized further by the informant and the other villagers, they fished out the dead body of Raghuvir Singh hidden by them under the shallow waters of river Kali in front of the field of Chunni Lal. Thereafter, they alongwith the accused and the dead body of the deceased-Raghuvir Singh came to the police station for lodging the FIR of the incident. 4. On the basis of the written report Ext. Ka1, chek FIR Ext. Ka3 and corresponding G.D. entry vide rapat No. 22 dated 29.5.2008 Ext. Ka4 were prepared and Case Crime No. 294 of 2008 was registered under Sections 302 and 201 IPC against the appellant, Balram and co-accused Gajraj at Police Station Jahanganj, District Farrukhabad. 5. 4. On the basis of the written report Ext. Ka1, chek FIR Ext. Ka3 and corresponding G.D. entry vide rapat No. 22 dated 29.5.2008 Ext. Ka4 were prepared and Case Crime No. 294 of 2008 was registered under Sections 302 and 201 IPC against the appellant, Balram and co-accused Gajraj at Police Station Jahanganj, District Farrukhabad. 5. The investigation of the case was taken over by P.W. 6 Vinod Kumar, S.H.O. Police Station Jahanganj who after formally arresting the accused-appellants, held the inquest on the dead body of Vijayveer Singh and prepared the inquest report Ext. Ka11, letter addressed to CMO Ext. Ka12, photo nash Ext. Ka13, challan nash Ext. Ka14 and police form No. 33 Ext. Ka15. Thereafter, he dispatched the dead body of Vijayveer Singh to the mortuary for conducting the post-mortem. He also inspected the place of occurrence, the place from where the dead body was recovered and the spot from where the tractor belonging to the appellant was seized and prepared the site plans Ext. Ka7, Ka8 and Ka9. The post-mortem on the dead body of Vijayveer Singh was conducted by P.W. 4 Dr. Nanhumal on 29.5.2008 at about 5:20 p.m. who prepared and proved his post-mortem report as Ext. Ka2. He noted following ante-mortem on the dead body of Vijayveer Singh : Contusion 9 cm x 5 cm over left side face and temporal renal Abrasion 1 cm x 5 cm over back side of right forearm Abrasion contusion 5 cm x 3 cm over front of right knee Contusion 10 cm x 5 cm over outer side of left buttock Contusion 9 cm x 6 cm over right side of abdomen According to P.W. 4 Dr. Nanhumal, the cause of death was asphyxia as a result of drowning. 6. The investigating officer after completing the investigation submitted charge-sheet Ext. Ka6 against both the accused-appellants under Sections 302 and 201 IPC. Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions. Nanhumal, the cause of death was asphyxia as a result of drowning. 6. The investigating officer after completing the investigation submitted charge-sheet Ext. Ka6 against both the accused-appellants under Sections 302 and 201 IPC. Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions. Learned CJM, Farrukhabad committed the case for trial of the accused to the Court of Sessions Judge, Farrukhabad where it was registered as S.T. No. 426 of 2008 and made over from there for trial to the Court of Special Judge, (Dacoity Affected Area), Farrukhabad who after hearing the prosecution as well as the accused-appellants on the point of charge, framed charge under Sections 302 and 201 IPC against both the accused-appellants who abjured the charge and claimed trial. 7. The prosecution in order to bring home the charge framed against the accused-appellants produced as many as seven witnesses of whom P.W. 1 (informant) Kamlesh Kumar Singh, P.W. 2 Raghuvir Singh and P.W. 3 Rajesh Singh were examined as witnesses of fact while P.W. 4 Dr. Nanhumal who had performed the autopsy on the dead body of Vijayveer Singh and prepared and proved his post-mortem report Ext. Ka2, P.W. 5 Irshad Ali who had proved the chek FIR and the corresponding G.D. entry, P.W. 6 Vinod Kumar who had investigated the case and filed charge-sheet against the appellant and P.W. 7 Rajan Lal Yadav who had held the inquest and proved the inquest report Ext. Ka11 and other related documents were produced as formal witnesses. 8. The prosecution had also adduced documentary evidence which has been referred to and dealt with in detail by the learned Trial Judge in the impugned judgement and order which need not be reproduced herein and to which we shall refer as and when the context so requires. The appellant and co-accused Gajraj in their statements recorded under Section 313 Cr.P.C. denied the prosecution case and alleged false implication due to their failure to support the informant in the last election held for the Office of Pradhan of Gram Panchayat. The defence examined one Prem Chandra Rajpoot as D. W. 1. 9. The appellant and co-accused Gajraj in their statements recorded under Section 313 Cr.P.C. denied the prosecution case and alleged false implication due to their failure to support the informant in the last election held for the Office of Pradhan of Gram Panchayat. The defence examined one Prem Chandra Rajpoot as D. W. 1. 9. Learned Special Judge, (Dacoity Affected Area), Farrukhabad after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record convicted appellant Balram and co-accused Gajraj under Sections 302 and 201 IPC and awarded aforesaid sentences to them. 10. Hence this appeal. 11. Sri Munna Babu, learned counsel for the appellants has submitted that in the instant case the prosecution has adduced two sets of witnesses for establishing the guilt of the appellants, P.W. 1 Kamlesh Kumar Singh and P.W. 2 Raghuvir Singh who are the witnesses of the accused being apprehended by them and other villagers from a place near the spot from where the dead body of the deceased was recovered from under the waters of Kali river in front of the field of Chunni Lal, alleged extra-judicial confessions made by both the accused-appellants before them admitting their guilt and recovery of the dead body of the deceased on their pointing out and P.W. 3 Rajesh Singh who claims himself to be an eye-witness of the occurrence, although he was not even nominated as a witness in the FIR. He next submitted that in case P.W. 3 Rajesh Singh had seen the entire incident and had narrated the same to the informant as well as the police as claimed by him in his cross-examination on pages 41 and 43 of the paper book before the lodging of the FIR, then the aforesaid fact ought to have found mention in the FIR. Moreover, the statement of P.W. 3 Rajesh Singh under Section 161 Cr.P.C. was recorded after 20 days of the incident which clearly indicates that he is a got up witness of the police and on whose testimony no reliance can be placed for the purpose of maintaining the conviction of the appellants recorded by the trial Court. Moreover, the statement of P.W. 3 Rajesh Singh under Section 161 Cr.P.C. was recorded after 20 days of the incident which clearly indicates that he is a got up witness of the police and on whose testimony no reliance can be placed for the purpose of maintaining the conviction of the appellants recorded by the trial Court. He next submitted that once the trial judge had disbelieved the evidence of P.W. 1 Kamlesh Kumar Singh and P.W. 2 Rajesh Singh on the points of the accused-appellants having made extra-judicial confession before them admitting their guilt and recovery of dead body of the Vijayveer Singh on their pointing out, the trial Court ought to have proceeded to acquit the appellants instead of illegally convicting the appellants by relying upon the alleged direct testimony of P.W. 3 Rajesh Singh which does not inspire any confidence. He further submitted that in the instant case there is not even an iota of the evidence indicating at the complicity of the appellants and as such neither the recorded conviction nor the sentence of life imprisonment awarded to them can be sustained and are liable to be set aside. 12. Per contra Smt. Manju Thakur, learned AGA 1st appearing for the State has submitted that the learned trial Judge did not commit any illegality or infirmity in recording the conviction of the appellants by placing the reliance upon the testimony of P.W. 3 Rajesh Singh whose presence at the place of occurrence at the time of the incident is perfectly natural and his evidence is not liable to be discarded merely because the informant had failed to narrate the facts pertaining to the manner in which occurrence had taken place in the FIR to him much before the lodging of the written report Ext. Ka1 and the delay of 20 days on the part of police in recording his statement under Section 161 Cr.P.C. for the simple reason that his evidence with regard to the points pertaining to the time, place and manner of occurrence as well as identity of the perpetrators of the crime is throughout consistent and clinching. This appeal lacks merit and is liable to be dismissed. 13. We have heard the learned counsel for the parties and perused the entire record. 14. This appeal lacks merit and is liable to be dismissed. 13. We have heard the learned counsel for the parties and perused the entire record. 14. The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove it’s case against the accused-appellants beyond all reasonable doubts or not. 15. Record shows that the prosecution story set up in the FIR against appellant, Balram and other co-accused Gajraj is that they were seen with the deceased on the date on which he had gone missing at about 6 p.m. going on the tractor of the appellant, Balram by P.W. 2 Raghuvir Singh and Ramanuj alias Babloo who had disclosed the aforesaid fact to P.W. 1 (informant) Kamlesh Kumar Singh on the next day when he had met him while he was searching his brother and then P.W. 1 (informant) Kamlesh Kumar Singh, P.W. 2 Raghuvir Singh and Ramanuj alias Babloo alongwith the other villagers had set out in the search of the deceased on the banks of river Kali where they noticed appellant, Balram and co-accused Gajraj sitting near the tubewell of Chunni Lal and on seeing the villagers, they tried to flee but they were apprehended by the informant and the other villagers and upon being questioned and beaten up by the informant, they confessed that they had committed the murder of the informant’s brother and concealed his dead body under the shallow waters near the bank of river Kali. On being further intimidated, they got the dead body of the deceased recovered from river Kali and thereafter, they were taken to the police station alongwith the dead body of the deceased. On being further intimidated, they got the dead body of the deceased recovered from river Kali and thereafter, they were taken to the police station alongwith the dead body of the deceased. It appears that after 20 days of the recovery of the dead body of the deceased, P.W. 3 Rajesh Singh was introduced by the police as an eye-witness of the occurrence who gave an eye-witness account of the incident in his statement recorded under Section 161 Cr.P.C. The learned trial Judge while appreciating the testimonies of P.W. 1 Kamlesh Kumar Singh, P.W. 2 Raghuvir Singh and P.W. 3 Rajesh Singh held that the evidence of P.W. 1 Kamlesh Kumar Singh and P.W. 2 Raghuvir Singh was admissible only on the point of accused having been caught by them on 29.5.2008 after chasing them for about 10-15 paces which is not sufficient to connect them with the crime in question. The Trial Judge further held that as far as their evidence on the point of the appellant and the other co-accused Gajraj having made an extra-judicial confession before them admitting their guilt after being beaten up by the villagers and then getting the dead body of the deceased recovered pursuant to the confessional statements made by the appellants before them is concerned, the same did not inspire any confidence and was inadmissible against them for the reason that confession was procured by the informant from the appellants after they were beaten up by the witnesses and the villagers who had caught them. The learned Trial Judge while coming to the aforesaid conclusion placed reliance upon the judgment of the Supreme Court in State of U.P. v. Raja @ Jaleel, 2008 (63) ACC 136 (SC), in which Apex Court had held that a confession of an accused obtained after beating him is unacceptable. We do not find any reason to take a view different from that taken by the trial Court. 16. However, the learned trial Judge relying upon the evidence of so-called solitary eye-witness i.e. P.W. 3 Rajesh Singh convicted both the appellants. It is settled law that a conviction can be based upon the evidence of a solitary witness without seeking any corroboration, in case such witness is wholly reliable, in case, the solitary witness is partially reliable then the rule of prudence demands that the Court shall look for corroboration. It is settled law that a conviction can be based upon the evidence of a solitary witness without seeking any corroboration, in case such witness is wholly reliable, in case, the solitary witness is partially reliable then the rule of prudence demands that the Court shall look for corroboration. In the instant case, upon a critical appraisal and scrutiny of the evidence of P.W. 1 Kamlesh Kumar Singh and P.W. 2 Raghuvir Singh as well as P.W. 6 Vinod Kumar, the investigating officer of the case, we find that he is a got up tutored witness and unreliable. P.W. 3 Rajesh Singh in his statement recorded before the trial Court has categorically deposed that on the night of the incident he was guarding his field which is near the field of Chunni Lal where the incident had taken place and he had seen the appellant and co-accused Gajraj first beating the deceased and then hiding him in river Kali after committing his murder and he had narrated the aforesaid fact to P.W. 1 Kamlesh Kumar Singh as well as the police on the very next morning before the lodging of the FIR. 17. We have very carefully scanned the evidence of P.W. 1 (informant) Kamlesh Kumar Singh as well as that of P.W. 6 Vinod Kumar, investigating officer of the case. There is nothing in their evidence which may even remotely indicate that P.W. 3 Rajesh Singh had told them that he had seen the appellants hiding the dead body of Raghuvir Singh in the river Kali after committing his murder and furnished the details of the occurrence in the morning of 29.5.2008. In case, P.W. 3 Rajesh Singh’s claim is true, then we do not find any reason why the informant would not have nominated him as an eye-witness in F.I.R. and the facts narrated by him to P.W. 1 Kamlesh Kumar Singh would not have found mention therein. The only conclusion which we can draw from the aforesaid omission on the part of P.W. 1 (informant) Kamlesh Kumar Singh to state the facts allegedly narrated to him by P.W. 3 Rajesh Singh is that P.W. 3 is not speaking the truth and he had neither seen the occurrence nor he had furnished the details of the occurrence to P.W. 1 Kamlesh Kumar Singh. 18. 18. Thus, in view of the foregoing discussion, his presence at the time of the incident appears to be highly doubtful and upon taking the entire evidence of P.W. 3 Rajesh Singh on it’s face value, coupled with the fact that he was not named as an eye-witness in the F.I.R., we are of the opinion that he is not a truthful witness and his testimony as a whole does not inspire confidence. Thus, in our opinion, the trial Court erred in convicting the appellants on the basis of the wholly unreliable testimony of P.W. 3 Rajesh Singh. 19. There is yet another very interesting aspect of the matter that the prosecution has failed to come up with any motive whatsoever for the appellant, Balram and co-accused Gajraj to commit the murder of Vijayveer Singh which further dents the core of the prosecution story. 20. Thus upon a holistic view of the facts of the case and a careful evaluation of the evidence on record, we find that the prosecution has failed to prove it’s case against the appellants beyond all reasonable doubts and hence neither the recorded conviction of the appellants nor the sentence of life imprisonment awarded to them can be sustained either on the circumstantial evidence or the so-called direct evidence adduced by the prosecution during the trial. The appeal according succeeds and is allowed. The impugned judgement and order dated 7.11.2012 passed by Special Judge, (Dacoity Affected Area), Farrukhabad in S.T No. 426/2008 (State v. Balram and another) is hereby set aside. The appellant, Balram is acquitted of all the charges framed against him. He is in jail. He shall be released forthwith unless he is wanted in any other criminal case subject to his complying with the mandatory provisions of Section 437-A Cr.P.C. 21. Copy of this judgment and order shall be communicated to co-accused, Gajraj who has not preferred any appeal against this judgement and order and who is languishing in Central Jail, Fatehgrarh.