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2018 DIGILAW 310 (ALL)

BALBEER v. STATE OF U. P.

2018-02-06

MAHBOOB ALI, RAJESH DAYAL KHARE

body2018
JUDGMENT Hon’ble Mahboob Ali, J.—Heard learned counsel for the appellant and learned A.G.A. for the State respondent. 2. The present appeal has been preferred against the judgement and order dated 18.1.2005 passed by Additional Sessions Judge/FTC No. 4, Muzaffar Nagar convicting and sentencing the appellants to undergo life imprisonment and a fine of Rs. 5,000/- for the offence under Section 302/34 IPC and in case of default of payment of fine to further undergo one year R.I. in sessions trial No. 1183 of 2003. Appellant No. 1 Balbeer has since expired, appeal filed on his behalf has been abated vide order of this Court dated 24.1.2017. 3. After lodging of the First Information Report, investigation was conducted, which resulted into filing of charge-sheet and as the appellants pleaded not guilty, they were put to trial. 4. The incident of the present case is alleged to have taken place on 21.6.2003 at about 06.15 p.m. regarding which a First Information Report was lodged by Amit Kumar (P.W.1) son of deceased in case crime No. 156 of 2003 under Section 302/34 IPC, P.S. Budhana District Muzaffar Nagar on 21.6.2003 at 2010 hours. 5. It is contended by the learned counsel for the appellants that the distance between police station and place of incident is about 09 kilometres and as per First Information Report the deceased had gone to his sugar-cane field at about 04.00 p.m. on 21.6.2003 where his tube-well was also installed for irrigating the same. At about 06.00 p.m. son of his maternal uncle, namely, Ram Niwas, was taken by first informant alongwith Sukhvir son of Ram Das, Omi Lal son of Jagram and paternal uncle of informant Kishan Pal, to the tube-well of deceased and when they reached near the tube-well they saw that appellant No. 1 armed with farsa and appellant No. 2 armed with balkati, were assaulting the deceased, when the deceased was sleeping. When these people raised alarm, the assailants ran away. When these people raised alarm, the assailants ran away. It is further contended that thereafter the appellant No. 2 was arrested on 6.7.2003 the recovery of alleged weapon of assault was shown to have been made on the pointing out of appellant No. 2 when, he was in police custody and it is argued on behalf of the appellants that the said recovery was not proved and further stains on the said weapon were not ascertained whether it was human blood or animal blood. 6. The post-mortem of the deceased was conducted by Dr. V.K. Shukla, who found four incised wound on the body of deceased; that during trial P.W. 1 Amit Kumar, (son of deceased), P.W. 2 Ram Niwas, (close relative of deceased), P.W. 3, Sukhvir Singh, (resident of same village), P.W.4 Dr. V.K. Shukla, who conducted the post-mortem, P.W. 5 S.I. Deviram Gahlot, P.W. 6 Constable Shishupal Singh and P.W.-7 Inspector H.P. Gautam, who investigated the matter, were examined. 7. It is also contended on behalf of the appellants that perusal of the statements of witnesses of fact would go to show that P.W. 1 and other witnesses had gone to meet the informant’s father with regard to a marriage proposal of the son of his maternal uncle’s son Sri Ram Niwas at about 04.00 p.m. and it was summer afternoon and it is argued that it is highly improbable that any person would start from his village in the afternoon at the peak of heat and after reaching his uncle’s house, would straight away go, with his cousin and other persons, who had no concern or knowledge about the purpose of the visit and reach the place of occurrence (tubewell) at the same time when the assailants were assaulting the deceased. It is further argued that the aforesaid motive or reason for the informant and others for going to the tube-well is also belied by the fact that said witness namely Ram Niwas also states that he was informed by his uncle over the telephone regarding the marriage proposal of his son but he did not know from whom proposal had come and who is the girl for whom proposal was being sent, therefore, it is highly improbable that on such vague information any person would go in the peak of the after noon and also why the nephew and P.W.1 went to the deceased’s tube-well for the aforesaid reason and there was no reason for other persons to accompany them and thus it is contended that such a story has been shown only to create evidence against the appellants to falsely implicate them on account of old animosity between the deceased and appellant with regard to sharing of electricity power for their respective tube-wells. Learned counsel for the appellants has also drawn the attention of this Court to the site-plan which goes to show that it is highly improbable that the said witnesses would witness the incident from that place, as alleged by the prosecution and thus, it is argued that some other persons must have committed the murder of the father of informant for whatever reason, for which appellants are being falsely implicated. 8. It is next contended that false implication of the appellants is also evident from the fact that in the inquest report only two injuries were shown on the body of deceased while four injuries were found in the post-mortem report; further the fact regarding the reason for the first informant and his maternal cousin to go to the deceased is also missing in their statement recorded under Section 161, Cr.P.C.; that the chak of P.W. 3, who is a chance witness, and chak of first informant and his father too far away therefore, there was no business for the said witness to go alongwith the first informant on the date and time of alleged incident. 9. Learned counsel for the appellants has further drawn the attention of this Court to the statement of accused recorded under Section 313, Cr.P.C., in which they had completely denied the prosecution version. 9. Learned counsel for the appellants has further drawn the attention of this Court to the statement of accused recorded under Section 313, Cr.P.C., in which they had completely denied the prosecution version. It is further contended that in the examination of D.W.1 Satish Latiyan, D.W. 2 Iqbal Singh alias Inkhpal Singh and D.W. 3 Satyendra Kumar, who have also completely denied the prosecution case; that all the eye-witness, mainly, P.W.1, 2 and 3 are chance and interested witnesses and as the incident took place at the tube-well in open field, which was surrounded by land owned by other persons, therefore, it is argued that it is highly improbable that any other persons working in their fields were not present at the time of occurrence, thus, all the witnesses are interested witnesses, therefore, their testimony cannot be relied upon; that it also very unnatural that there is nothing to show that these persons who were five in number, did not attempt to save the deceased while he was being assaulted by the two accused persons; that alleged recovery of weapon of assault after 15 days that too, from open filed at the pointing out of appellant No. 2 while he was in police custody cannot be believed as said open place is easily accessible to everyone; that presence of P.W.1 alongwith others at the place and time of alleged incident is highly unnatural, which itself shows that none of the said persons were present at the time and place of the alleged incident nor they had seen the incident; that perusal of the statement of P.W. 5 S.I. Deviram Gahlot would reveal that said witness has stated that in the papers sent while sending the dead body for autopsy (Ext. Ka. 5 to 7) and fard of blood stained and simple earth (Ext. Ka. 8) names of accused has not been mentioned and names of accused have also not been mentioned in the inquest report and there was manipulation. It is also contended that the eye-witnesses Sukhvir and Omi Lal whose names find mention in the written report of the first informant (Ext. Ka. 8) names of accused has not been mentioned and names of accused have also not been mentioned in the inquest report and there was manipulation. It is also contended that the eye-witnesses Sukhvir and Omi Lal whose names find mention in the written report of the first informant (Ext. Ka-1) have been made witnesses in the inquest report also which itself shows manipulation in the First Information Report, which was lodged in collusion with police personnel, thus, it is argued that there is no credible evidence to connect the appellants in the complicity of the alleged offence; that at the time of alleged incident the appellant No. 1 Balbeer was an old person aged about 75 years suffering from Asthma, who expired during pendency of appeal, was also implicated and the said fact also shows false implication of appellant No. 1 in the alleged incident. Learned counsel for the appellant has made reference to the statement of prosecution witnesses, who had stated that when the deceased was at the tube-well, he was wearing Kurta-Payajama but same was not recovered by the police, therefore, it is contended that alleged offence was committed by somebody else for which the appellants have been falsely implicated. It is also contended that there is material contradictions in the prosecution evidence, which also falsify the prosecution version. 10. Learned A.G.A., on the contrary, has contended that it is a case of direct evidence and it is a broad-day light murder for which motive is also present; that P.W. 2 and 3 are not chance witnesses and that recovery of weapon of assault has been made at the pointing out of the appellant; that the prosecution evidence is supported by medical evidence and reference in this regard has been made to the statement of Doctor at page 39 of the paper-book. 11. After hearing the matter and after considering the facts and circumstances of the case on record, the Court below rendered the judgment and conviction dated 18.1.2005, which is under challenge in the present appeal. 12. 11. After hearing the matter and after considering the facts and circumstances of the case on record, the Court below rendered the judgment and conviction dated 18.1.2005, which is under challenge in the present appeal. 12. After hearing the learned counsel for appellants, learned A.G.A., and after perusing the paper book as well as averments made in the present appeal, it is borne out that the eye-witness-P.W.1 the first informant, who is the son of the deceased, and Ram Niwas P.W.2 (nephew of the deceased) are close relatives of the deceased and also that the P.W.3 Sukhbir Singh, who is resident of the same village are said to have witnessed the incident and all of them had gone to the tubewell of the deceased with regard to the marriage proposal of the son of Ram Niwas. It is also borne out that Ram Niwas was previously telephonically informed about the marriage proposal for his son by the deceased but he had no knowledge from where marriage proposal had come and who is the girl for whom the proposal had come. It is also intriguing as to how any person, on such a vague information, would go out to visit in the afternoon at the peak of heat hours for such a vague marriage proposal and after reaching the uncle’s house, (deceased) he was immediately taken to his uncle’s tubewell by his cousin and others who had no business to accompany him and his cousin to the tubewell as the other persons aforenamed were not aware of the purpose of the visit nor had any relations with Ram Niwas. Further the conduct of the said witnesses that they did not even raise a finger to save the deceased at the time of assault which they allegedly witnessed, also casts shadow of doubt on the prosecution story and the contradiction which is borne out from the prosecution version and the medical evidence has also not been explained by the prosecution with regard to the injuries sustained by the deceased on his person, the clothes which were shown to be worn by the deceased at the time of incident were also not recovered. The site plan also does not give confidence so far as prosecution version is concerned as it has been pointed out and argued that it is not possible for the said witnesses to have seen the alleged incident from the place it is shown in the site plan because the view to the place of occurrence was obstructed. Further the recovery of the alleged weapon of assault is said to have been made on the pointing of appellant No. 2 from the open field at the time when he was in police custody which recovery has also not been proved by the prosecution and therefore, the said recovery cannot be relied upon as per well-settled principles of law. The motive which is shown for commission of alleged offence with regard to sharing of electricity power for their respective tube well by the deceased and the accused appellants, is also a weak motive to have insisted any person to commit such an offence. It is further noteable that the field and the tubewell of the deceased was surrounded by the field of other persons and it is very strange that no other tenure holder was present on their fields at the time of the incident and no independent witness was examined or named by the prosecution, despite the contradiction of the named witnesses under Section 161 Cr.P.C., and their statement given before the Court below. The defence version that offence must have been committed by somebody else for which the appellants have been falsely implicated in the present case cannot be ignored in the facts and circumstances of the case as the chain of events is not complete and it is not proved beyond reasonable doubt that it is the appellants who have committed the alleged offence. Further as has been pointed out, in the statement of P.W. 5 S.I.Devi Ram Gahlot that in relevant papers which were prepared while sending the body for autopsy, the name of the accused were not mentioned and also the name of the accused persons were not mentioned in the inquest report and there was manipulation in the First Information Report which is also indicative of the fact that the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt. It is not out of place to mention here that the appellant No. 1 namely Balbeer was aged about 75 years at the time of alleged incident and was suffering from Asthama, who had since expired during pendency of the appeal and who has also been implicated. Therefore, the contention on behalf of the appellants that they have been falsely implicated cannot be ruled out. 13. For the aforesaid reasons, this appeal is allowed. The impugned Judgement and order dated 18.1.2005 is set aside. 14. The surviving appellant No. 2 is acquitted from all the charges levelled against him. The appellant No. 2 shall be released forthwith unless wanted in any other case and his personal bond and sureties bonds are cancelled and sureties stand discharged from their liability. 15. Let a certified copy of this Judgement and order be transmitted to the concerned Court/C.J.M. for necessary compliance.