Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 1710 (ALL)

Mannoo Khnagar v. State of U. P.

2018-08-03

B.AMIT STHALEKAR, VIVEK KUMAR SINGH

body2018
JUDGMENT : B. Amit Sthalekar, J. The present appeal has been filed by the appellant against the judgment and order dated 14.3.2005 passed by the District and Sessions Judge, Mahoba in Session Trial No. 87 of 2004 convicting the appellant under section 302 I.P.C. and sentencing him to life imprisonment with fine of Rs.5000/- and in case of default in payment of fine, further six months R.I. 2. Briefly stated the facts of the case are that a First Information Report was lodged by one Khoob Chand Singh stating that on the night of 16.3.2004 at about 10 p.m. when he was going to the field along with his brother, Kallu Singh and one Munna Singh s/o Shiv Nath Singh of the same village, he saw that his father and Mannoo s/o Bhura Khangar were having a heated argument. Mannoo had an axe in his hand and in the heat of passion, Mannoo assaulted Ram Narain Singh, father of the informant with the axe, as a result of which his father fell down screaming. The informant along with Kallu Singh and Munna Singh had just then reached the spot. They were carrying food for Ram Narain Singh. When these people raised alarm, Mannoo ran away towards the west carrying the axe in his hand. According to the informant they saw the accused very clearly and also identified him. It is further stated that his father was alive for some time but when they were preparing to take him for treatment, he died as a result of the injuries. It is also stated that the informant and his brother or Munna Singh did not go to lodge the FIR in the night itself because they were frightened and left the body under the care of some villagers. A written report, drawn by Arun Kumar Singh s/o Sunder Singh Chauhan, was submitted to the Police with regard to the incident and the FIR was lodged next day on 17.3.2004 at about 9.35 a.m. Recovery memo of blood stained clothes namely Gamchcha, Pillow and Blanket was prepared on 17.3.2004 and a separate recovery memo of blood stained earth sample was prepared and put into sealed boxes. The accused denied the allegations against him and also claimed that he had been falsely implicated on account of enmity. 3. In order to prove its case the prosecution has examined five witnesses in all. The accused denied the allegations against him and also claimed that he had been falsely implicated on account of enmity. 3. In order to prove its case the prosecution has examined five witnesses in all. PW-1 Khoob Chand, the informant in his testimony has stated that he was carrying food for his father on the night of 16.3.2004 at about 10:30 p.m. and this incident was seen by him in the torch light and in the torch light he identified the accused. He also stated that between the father of the accused and the deceased there was a litigation relating to land which the deceased had won and it was on this account that the accused was having heated and agitated arguments with his father and in a heat of passion, he killed him with the axe. He dealt him axe blows resulting in his death. This witness has also stated that he was about 15-20 steps away from his father when the incident occurred. At another place he has stated that he was 20-25 steps away. The accused dealt about 7-8 blows of the axe on his father resulting in his death within 2 or 3 minutes. 4. PW-2, Munna Singh corroborated the statement of PW-1 and stated that he had seen the incident and also recognized the accused in the light of a torch and that it was also a moon light night. 5. The Post Mortem of the deceased Ram Narain Singh was carried out on 17.3.2004 by Dr. P.S. Sagar, PW-3. He noted the following injuries on the person of the deceased:- 1. Incised wound 3 x 1.5 cm. X scalp deep on 3 cm. Ehind left ear tailing .... 2. Incised would 4 x 2 cm x bone deep on left side of head 6cm above left ear tailing ..... Left Parietal bone cut. 3. Incised wound 3 x 1 cm. x scalp deep on left side of head 4. Incised wound 4 x 2 cm. on left ear tailing upward. 5. Incised wound 2 x 1 cm. just behind left ear. Tailing upwards 6. Incised wound 8 x 2.5 cm. bone deep on the left side of face 7. Incised wound 6 x 1.5 cm. bone deep on the right side of face 8. Abrasion 6 cm. x 1.5 cm. on left upper arm. 9. Incised wound 3 x 1.5 cm. Incised wound 2 x 1 cm. just behind left ear. Tailing upwards 6. Incised wound 8 x 2.5 cm. bone deep on the left side of face 7. Incised wound 6 x 1.5 cm. bone deep on the right side of face 8. Abrasion 6 cm. x 1.5 cm. on left upper arm. 9. Incised wound 3 x 1.5 cm. on left side of chest tailing medially 2 cm. 2 cm. below medial end of left clavicle. 6. In his postmortem report the Doctor has reported that the heart and the stomach were empty and that there were deep injuries on the left side, going bone deep including one injury on the left arm and one injury on the left side of the chest. 7. P.W. 4 Mendhey Lal Verma has proved the F.I.R. and stated that he has registered the Case Crime No. 191 of 2004 under section 304 I.P.C. against the appellant Mannoo Khangar. 8. P.W. 5 Anil Kumar is the Investigating Officer of the case who has investigated the case and submitted the charge sheet against the appellant. In his deposition he has stated that after registration of the F.I.R. he visited to the spot and Recovery memo of blood stained cloths namely Gamchcha, Pillow and Blanket was prepared on 17.3.2004 and a separate recovery memo of blood stained earth sample was prepared and put into sealed boxes. He has also prepared inquest by dictating to S.S.I. Ram Ratan and sent the dead body for post mortem examination through Head Constable Imamullaha and Home Guard Dashrath Prasad. He has also proved the recovery memo on the pointing out of the appellant. 9. The Trial Court has noted that no one appeared on behalf of the accused during the trial nor any evidence was led. The Trial Court has held the accused guilty of the offence under Section 302 IPC on the ground that the witnesses PW-1 and PW-2 Khoob Chand and Munna Singh, respectively, had identified him in the torch light and that the deceased had died as a result of axe blows on the left side of his head, arms and chest. The murder weapon, namely the axe, was also recovered from a nearby hillock on the pointing out of the accused. 10. The murder weapon, namely the axe, was also recovered from a nearby hillock on the pointing out of the accused. 10. Sri Raghuraj Kishor, the learned amicus curiae submitted that the fact that the witnesses were carrying a torch or that the informant PW-1 saw and identified the accused in the light of a torch was never mentioned in the FIR. 11. Referring to the statement of the PW-1, wherein he has stated that immediately after the incident he went to the house of Arun Singh Chauhan who is related to him and who noted down the entire incident which was submitted to the Police in the next morning, the learned Amicus Curiae further submitted that this is very strange that there were three persons, namely, the informant, Khoob Chand and Kallu Singh both sons of deceased Ram Naraian and one Munna Singh of the same village who was accompanying them and none of the three persons rushed to the Police Station to lodge the FIR in the night itself and instead the informant rushed to his relative Arun Kumar Singh, who was residing in Gandhi Nagar, Mahoba in the town and not in the village where the incident happened, for noting the report and thereafter the FIR was lodged at 9:00 a.m. next morning. He further submitted that as per the statement of the PW-1 Mannoo, the accused was having a heated argument with the deceased about the land dispute between the father of the accused and the deceased and that he was also carrying an axe in his hand at 10 p.m. in the night and the three eye witnesses were only 15-20 steps or 20-25 steps as stated later, away from the site where the murder took place but neither of the three persons rushed to save the deceased and tried to apprehend the accused who was alone and was inflicting axe blows on the deceased. It cannot be believed that the eye witnesses could not cover the distance of 15-20 steps before six blows have further been rained upon the deceased by the accused. 12. The learned counsel further submitted that as per the statement of PW-1 being summer time, day light begins between 4-5 a.m. and if that be so why was the FIR not lodged at that time. 13. 12. The learned counsel further submitted that as per the statement of PW-1 being summer time, day light begins between 4-5 a.m. and if that be so why was the FIR not lodged at that time. 13. The learned Amicus Curiae also submitted that the Investigating Officer in his statement during trial has stated that on 25.3.2004 the accused had disclosed to him the location of the murder weapon namely the axe and on the basis of the information given by the accused he went to the site namely the hillock and on 26.3.2004 he searched for the murder weapon but could not find it and it was only on 2.4.2004 that the Investigating Officer along with other persons took the accused to the site and the murder weapon namely the axe was found hidden under some stones. The learned Amicus Curiae submitted that in the first instance there is nothing to show that Police had recovered the murder weapon on the pointing out of the accused. The learned Amicus Curiae further submitted that none of the eye witnesses who were present at the time of recovery of the murder weapon were ever examined as prosecution witnesses to prove the statement of the Investigating Officer. 14. We have gone through the original records of the case. The statement of the eye witnesses does not lend credence for the reason that at one place the PW-1 stated that they were 15-20 steps from the site of the murder and at another place he stated that they were 20-25 steps from the site of the murder and though the exact distance may vary but even if it is accepted to be 20 -25 steps, it is surprising that none of them rushed to the aid of their father or even tried to catch the assailant. It can hardly be accepted that three persons were present at the spot and witnessed the incident and yet the accused ran away in the west and was not even given a chase by the PW-1 or his brother Kallu Singh or by the other eye witness PW-2. In his deposition P.W. 1 has specifically stated that before their arrival the accused has already inflicted 2 - 3 blows of axe and rest of the axe blows were inflicted in their presence and because of fear they have not tried to save his father. In his deposition P.W. 1 has specifically stated that before their arrival the accused has already inflicted 2 - 3 blows of axe and rest of the axe blows were inflicted in their presence and because of fear they have not tried to save his father. It is surprising that the eye witnesses were three in number and the accused was alone even then they did not rush forward to save his father nor they have tried to apprehend the accused. It is equally clearly surprising and infact incredulous that the father of the PW-1 and Kallu Singh is murdered 15-20 steps from them and instead of rushing to the Police Station to immediately lodge the FIR, the PW-1 rushed to one Arun Kumar Singh who is stated to be their relative and who is residing in Gandhi Nagar, Mahoba town and not in the same village where the incident occurred and through him got the facts noted down which was reported to the Police at 9:00 in the morning, next day on 17.3.2004. 15. The PW-1 and PW-2 who claimed to be eye witnesses have stated that they saw the accused and identified him in the light of a torch but the existence of the torch was never mentioned in the FIR which would ordinarily have been expected considering that the incident happened at about 10-10:30 in the night. 16. It is also surprising that from 10:30 p.m. in the night till 9:00 a.m. in the morning the body was left in the open field, may be under the care of other villagers managing their own fields, but it does not lend credence as it has nowhere been stated that the PW-1 or his brother Kallu Singh after the incident went again to the field to keep a watch over the body of their father. 17. PW-1 has stated that it being summer time day light starts by 4-5 am. If that be so there is no explanation as to why the FIR was lodged only at 9 a.m. and not at the first break of light. 17. PW-1 has stated that it being summer time day light starts by 4-5 am. If that be so there is no explanation as to why the FIR was lodged only at 9 a.m. and not at the first break of light. The explanation of the PW-1 in his statement that he did not go to lodge the FIR in the night because he was frightened, can hardly be accepted when there were three people who had witnessed the incident, two sons of the deceased and one Munna Singh, and there was only one assailant and more so when they had left the body of the deceased under the care of other villagers who were stated to be managing their fields. Therefore, the statement that they were too frightened to lodge the FIR in the night itself can hardly be accepted as normal behaviour. 18. The Investigating Officer, Anil Kumar has stated that on 25.3.2004 he was informed by the accused of the site where the murder weapon namely the axe was hidden and on 26.3.2004 he searched the hillock where it was stated to be hidden, but could not find the murder weapon and it was only on 2.4.2004 that the murder weapon was recovered in the presence of witnesses on the pointing out of the accused. If the accused had indeed disclosed to the Investigating Officer the exact spot where the murder weapon was hidden there was no reason why it could not be found on 25.3.2004 or 26.3.2004 itself. The statement of Anil Kumar, Investigating Officer that the murder weapon was recovered on the pointing out of the accused also does not lend credence for the reason that none of the witnesses of the recovery of the murder weapon were ever examined during trial. If the murder weapon was recovered on the pointing out of the accused and there were witnesses who were present at the time of such recovery it was necessary that such witnesses should have been examined by the prosecution to prove the recovery of murder weapon on the pointing of the accused. 19. We have also examined the postmortem report and we find that the Doctor has clearly stated that the blood group could not be proved with that obtained on the murder weapon. 19. We have also examined the postmortem report and we find that the Doctor has clearly stated that the blood group could not be proved with that obtained on the murder weapon. In this view of the matter even if the axe, in question, had blood stains, it could not be proved that the said axe belonged to the accused. Infact there is nothing on record to show that the axe in question was proved to belong to the accused. 20. PW-2-Munna Singh has tried to lend weight to his statement by also stating that the night of the incident was moonlight night. If that be so it is surprising that none of the other farmers/villagers who were managing their own fields noticed the coming and going of Mannoo Khangar, accused, towards the field of the deceased nor heard the heated argument between the accused and the deceased. 21. The learned AGA has tried to justify the judgment of the Trial Court by submitting that the incident was witnessed by the PW-1 and PW-2 and the statements of the eye witnesses were incontrovertible and could not be ignored. He further submitted that the murder weapon namely the axe in question was stained with human blood which would show that it was the weapon used in the murder and that the murder weapon was also recovered on the pointing out of the accused. However, on an analysis of the facts of the case and the evidence on record we are unable to find ourselves agreeing with the submissions of the learned AGA. We also find that the contradictions in the testimony of P.W. 1 have not been examined by the Trial Court in its correct perspective 22. For reasons aforesaid, the judgement and order dated 14.3.2005 is set aside. The appeal stands allowed. The appellant is acquitted of the charges. 23. Perusal of the record shows that the appellant has not been granted bail by this court and he was also not on bail during trial, as per the order of this court dated 13.4.2005. Therefore, it seems that the appellant is still languishing in jail. If he is in jail, he shall be released forthwith unless wanted in any other case. 24. Let a copy of this order be sent to the C.J.M. Mahoba within one week from today for compliance. Therefore, it seems that the appellant is still languishing in jail. If he is in jail, he shall be released forthwith unless wanted in any other case. 24. Let a copy of this order be sent to the C.J.M. Mahoba within one week from today for compliance. The compliance report shall be sent by the C.J.M. Mahoba to this court within a further period of fifteen days. 25. We wish to place on record our appreciation for the assistance provided to the court by Shri Raghuraj Kishore, learned Amicus Curiae. We also direct that he shall be paid Rs.10,000/- as his fee.