Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 511 (ALL)

GIRDHARI v. STATE OF U. P.

2018-02-27

HARSH KUMAR, P.K.S.BAGHEL

body2018
JUDGMENT : (Delivered by Hon'ble Pradeep Kumar Singh Baghel, J.) The appellant, Girdhari, has been convicted by the Sessions Court under Section 302 of the Indian Penal Code1 to undergo life imprisonment. He has preferred this appeal under Section 374(2) of the Criminal Procedure Code, 19732 to challenge the judgment and order dated 14th March, 1988 passed by the Additional Sessions Judge, Ballia in Session Trial No. 90 of 1987 (State of Uttar Pradesh v. Girdhari and others) whereby he has been convicted for the offence punishable under Section 302 I.P.C. and sentenced to rigorous imprisonment for life. The appellant was charge-sheeted along with four other accused, who have been acquitted by the Sessions Court by the same judgment and order. Briefly stated the case of the prosecution is that P.W.-1 Ganga Sagar Verma made a written complaint to the Station House Officer, Maniyar, District Ballia on 01st February, 1987, which was registered there at 07.10 A.M. in the morning as Case Crime No. 7 of 1987, under Sections 147, 148, 149, 302 I.P.C., stating therein that in the previous night of 31st January/ 01st February, 1987 his brother Lallan has been murdered by his nephew Girdhari (the appellant) and his friends, namely, Shanker, Kanhaiya Bhar, Shiv Kumar Bhar, Swami Bhar, residents of Tukra Doyam Diyra, and Butan, resident of Diyara. It is mentioned therein that his nephew Girdhari fell in a bad company and his brother Lallan (deceased) had serious objection to such conduct of Girdhari and sometimes he had beaten Girdhari for such reason. The appellant, Girdhari, was nursing grudges against his deceased brother Lallan for such reason. Girdhari had told several persons of the village that either Lallan or he will remain alive. Yesterday night (31st January/ 01st February, 1987) after having meal, Lallan had gone to his tube-well for staying there at night. It is stated that in the night suddenly P.W.-1 woke up and thought to go to his brother Lallan and do some irrigation in the field. When he reached in the field with his torch it was a mid-night. Suddenly, he heard screaming of Lallan. Thereupon P.W.-1 raised alarm, upon which Vikram Verma, P.W.-3, Gulab Chandra Verma, P.W.-2, and Raj Narayan Verma, P.W.-4, rushed towards his tube-well and they had also their torches. P.W.-1 along with the aforesaid persons saw that all the accused persons were assaulting his brother Lallan. Suddenly, he heard screaming of Lallan. Thereupon P.W.-1 raised alarm, upon which Vikram Verma, P.W.-3, Gulab Chandra Verma, P.W.-2, and Raj Narayan Verma, P.W.-4, rushed towards his tube-well and they had also their torches. P.W.-1 along with the aforesaid persons saw that all the accused persons were assaulting his brother Lallan. Girdhari was armed with Lathi; Shankar, Kanhaiya Bhar and Shiv Kumar had knife and Butan had Gandasa. It is also stated that all the aforesaid witnesses by raising voice in the light of torch rushed towards tube-well to save Lallan, then seeing them Girdhari, the appellant, shouted that in hurry he has also received injury and he exhorted other accused persons to run away from the place of incident. When P.W.-1 and other persons, mentioned above, entered the room, they found that ensanguined body of Lallan was lying there. The chik first information report3 was prepared by P.W.-6 Jiledar Singh, H.C. No. 93, Harijan Prakoshtha, Police Office, Ballia, and the investigation was entrusted to one Ram Shiromani Singh, S.O, P.W.-8, who reached the place of occurrence. He prepared fard of the bloodstained earth from the place of occurrence and also he recovered a bloodstained hand-gloves, which was identified by the villagers to be of the appellant. P.W.-8 prepared the inquest report, which is Exh.Ka-5. After the inquest was prepared, dead body was sent for autopsy, which was conducted by P.W.-5 Dr. B.P. Singh. The post-mortem report is Exh.Ka-2. In the opinion of the Doctor, P.W.-5, the death of the deceased was due to hemorrhage and ante-mortem injuries of the deceased. The appellant, who had also sustained injuries, was admitted to the P.H.C., Maniyar, Ballia. The injury report of Girdhari is Exh.Ka-15. The injury report discloses that he had sustained two injuries: one, incised wound (3 x 4 inches) at the right palm bone deep along with muscles, and another incised wound (2 x ½ inches) bone deep just below the right knee. The Doctor had advised him X-ray of right palm and right knee. It was mentioned that said injuries might have been caused by the sharp heavy weapons. The Investigating Officer4 has recorded the statements of the witnesses mentioned above under Section 161 Cr.P.C. and submitted a charge-sheet against the appellant and five others, who were named in the FIR. Since Shanker Bhar, one of the co-accused, was absconding, his case was separately registered. The Investigating Officer4 has recorded the statements of the witnesses mentioned above under Section 161 Cr.P.C. and submitted a charge-sheet against the appellant and five others, who were named in the FIR. Since Shanker Bhar, one of the co-accused, was absconding, his case was separately registered. The Magistrate committed the trial to the Court of Sessions, who conducted the trial. The prosecution to prove its case examined 9 witnesses. P.W.-1 Ganga Sagar Verma is real younger brother of deceased Lallan and is complainant also. P.W.-1 was said to be an eye witness but he turned hostile. P.W.-2 Gulab Chand Verma, P.W.-3 Vikram and P.W.-4 Raj Narayan Verma, Advocate, are the eye witnesses; P.W.-5 Dr. B.P. Singh is the Doctor, who had conducted post-mortem on the dead body of deceased Lallan; P.W.-6 Jiledar Singh was Head Moharrir in Police Station Maniyar and he had prepared the chik FIR (Exh. Ka-3); P.W.-7 Gulab Singh is the Head Constable, who had brought the dead body of the deceased from the place of occurrence for the post-mortem; P.W.-8 Ram Shiromani Singh is the Investigating Officer and P.W.-9 Dr. B.P. Gupta is the Doctor, who had treated the injuries of the appellant at P.H.C. Maniyar, Ballia. The accused persons were given opportunity under Section 313 Cr.P.C. about the incriminating evidences and the circumstances, and the appellant and other accused persons pleaded not to be guilty. They did not produce any witness and have cross-examined all the prosecution witnesses. The trial Court after considering the ocular and documentary evidences came to hold that presence of all the witnesses was doubtful and it has also doubted the source of light which was a torch. Hence, it acquitted all the accused except the appellant. Though the trial Court disbelieved the prosecution witnesses and their presence on the spot yet it found the appellant guilty for the commission of offence under Section 302 I.P.C. basically on the ground of his injuries, which in its opinion the appellant had received from the weapon of his co-accused while assaulting deceased Lallan, and convicted and sentenced him for life imprisonment. We have heard Sri S.D. Singh Jadaun, learned counsel for the appellant, and Sri A.N. Mulla, learned A.G.A. Sri S.D. Singh Jadaun, learned counsel for the appellant, submitted that P.W.-1 had named only six persons who were said to be present at the time of incident. We have heard Sri S.D. Singh Jadaun, learned counsel for the appellant, and Sri A.N. Mulla, learned A.G.A. Sri S.D. Singh Jadaun, learned counsel for the appellant, submitted that P.W.-1 had named only six persons who were said to be present at the time of incident. When the trial Court has disbelieved all the witnesses of the prosecution and has acquitted five co-accused, who have been charge-sheeted on the same ground, the appellant could not have been convicted, however, the trial Court has convicted him only on the basis of his injury. He further submits that the appellant was assigned the role of assaulting Lallan with Lathi but there was no injury of Lathi. He has invited our attention to the statement of Doctor, who had treated Girdhari, to show that in paragraph-2 thereof, in examination in chief, he stated that the injuries may be of midnight of 31st January/01st February, 1987, whereas in the cross-examination in paragraph-3 of the statement he stated that his injuries may be of six hours variation from the time of examination, therefore, they might have been caused on 01st February, 1987 between 6 and 7 A.M. in the morning. He stated that due to said injuries it was not possible for the appellant to brisk walk or run. Learned counsel for the appellant has laid emphasis on the fact that time of the incident was around midnight and there was power failure, hence there was no source of light coupled with the fact that there was fog during the night. Therefore, the only source of light, which the prosecution witnesses alleged, was their torches, which they were carrying with them when reached on the seen. He pointed out that fard of the torches of the witnesses was not made nor P.W.-2, P.W.-3 and P.W.-4 have produced their torches before the Court. Learned counsel for the appellant lastly submitted that the trial Court after analysing the oral evidences of the eye witnesses i.e. P.W.-2, P.W.-3 and P.W.-4 has disbelieved them and has also recorded a finding that their testimonies are not worthy and their presence on the spot at the time of occurrence of the incident itself has been found to be doubtful. But the trial Court in spite of recording the said finding only on the basis of surmises and conjectures convicted the appellant relying on the statements of those witnesses, who have been disbelieved in respect of his presence on the spot and the injuries sustained by him. The trial Court ignoring the deposition of the Doctor, P.W.-9, has inferred that the appellant had received those injuries while the appellant and the other accused, who have been acquitted, were assaulting deceased Lallan. Sri A.N. Mulla, learned A.G.A., submitted that it is a consistent version of all the witnesses regarding presence of the appellant on the spot. There is a evidence on the record that the role of the appellant is of catching hold of deceased Lallan. Hence, the trial Court has rightly convicted him under Section 302 I.P.C. We have heard learned counsel for the parties at great length and perused the material placed on the record and the judgment of the trial Court. Deceased Lallan was younger brother of the first informant--P.W.-1. The first informant--P.W.-1 was three brothers--P.W.-1 Ganga Sagar Verma, Udai Narain and deceased Lallan. The appellant, Girdhari, is son of Udain Narain, elder brother of the deceased. There was joint family. The prosecution has produced the first informant as P.W.-1 and has declared him hostile. In his examination in chief he has stated that his brother Lallan was murdered at his tube-well, which is at the outskirt of the village towards south. He deposed that he does not know as to who have killed his brother. As stated above, he was declared hostile. The prosecution has cross-examined him. In his cross-examination he has stated that he came to know about the death of his brother at 07.00 A.M. in the morning. Upon hearing the clamor, when he reached at the spot, he saw the dead body of his brother, who was killed in the night with the sharp-edged weapon. When he was confronted with the F.I.R., which bears his signature, he stated that the S.H.O. had got his signatures on the blank papers and he denied his handwriting of the F.I.R. on such papers. He also denied his statement purported to be recorded by the I.O. under Section 161 Cr.P.C. P.W.-2 Gulab Chandra Verma is also related to Girdhari. When he was confronted with the F.I.R., which bears his signature, he stated that the S.H.O. had got his signatures on the blank papers and he denied his handwriting of the F.I.R. on such papers. He also denied his statement purported to be recorded by the I.O. under Section 161 Cr.P.C. P.W.-2 Gulab Chandra Verma is also related to Girdhari. He stated that the deceased was his cousin brother and the appellant is his nephew (chachera bhatija) and is real nephew of deceased Lallan. He deposed that tube-well of Lallan is at the outside of the village. His field is near the tube-well of Lallan. In the night of the incident he was sleeping in his field to guard his potato crops and at about midnight when he heard the noise, he rushed towards the tube-well, where he found that P.W.-1 Ganga Sagar, P.W.-3 Vikram and P.W.-4 Raj Narain also reached there by flashing their torches and he saw that the appellant along with other accused persons were assaulting Lallan with their weapons. This witness has given the description of the different weapons, with which the accused persons were armed, such as knife, Gandasa, Dav-chhoora and Lathi. According to him, the appellant was armed with Lathi. In his statement he has stated that in his statement under Section 161 Cr.P.C. given to the I.O. he did not mention the fact regarding guarding of potato crops. In his statement he has stated that on the said date when the incident occurred there was no electric supply and it was dark. He saw the incident in the light of his torch. He has little torch of two batteries. He had shown his torch to I.O. and he did not bring it along with him in the Court on the date when his statement was recorded. P.W.-3 Vikram is also an eye witness. He made the same statement that he was guarding his potato and brinjal crops and after hearing cries of Lallan, he ran towards his tube-well, where he saw that P.W.-1 Ganga Sagar Verma, P.W.-2 Gulab Chand and P.W.-4 Raj Narain were also present there along with torches. He saw that the appellant was armed with Lathi and the other accused persons, namely, Shanker & Kanhaiya were armed with knife and Butan with Gandasa, one of the accused had Karauli in his hand and another had knife. He saw that the appellant was armed with Lathi and the other accused persons, namely, Shanker & Kanhaiya were armed with knife and Butan with Gandasa, one of the accused had Karauli in his hand and another had knife. All the accused were assaulting Lallan simultaneously. He mentioned that the appellant was trying to catch hold the deceased Lallan with his waist. When P.W.-1, P.W.-2 and P.W.-4 raised alarm, all the accused fled away from the spot. In his cross-examination this witness could not state the make of his torch, and he failed to bring the torch in the Court when he gave his statement. The I.O. had not taken his torch in his possession. P.W.-4 Raj Narayan Verma is also an eye witness. He stated that he was running a brick kiln in the partnership of deceased Lallan. At the time of occurrence of the incident, he was sleeping at his brick kiln, which was hardly 100 paces from the tube-well i.e. the place of occurrence. He has reiterated the same fact which was stated by P.W.-2 and P.W.-3. He had also failed to bring his torch. He said that he had shown his torch to I.O., who had returned it to him after preparing the Fard. This witness has stated that in his statement to the I.O. he has not mentioned the names of six accused. He showed his ignorance as to how the I.O. has mentioned six names in his statement. About the source of light, he stated that there was power failure at that time as the transformer, through which supply of electricity is made to the tube well, was not in order as it got some defect. He has stated an important fact that in the morning of 01st February, 1987 he brought Girdhari, the appellant, to the hospital from his house in the injured condition. This fact has escaped the notice of the trial Court. P.W.-5 Dr. B.P. Singh is the doctor, who had conducted the autopsy on the dead body of deceased Lallan. In his statement he has stated that he found 18 ante-mortem injuries on the body of the deceased. All the incised wounds were caused by sharp-edged weapon. He has stated that cause of death was incised wounds. P.W.-5 Dr. B.P. Singh is the doctor, who had conducted the autopsy on the dead body of deceased Lallan. In his statement he has stated that he found 18 ante-mortem injuries on the body of the deceased. All the incised wounds were caused by sharp-edged weapon. He has stated that cause of death was incised wounds. According to his opinion, the injuries on the body of the deceased were caused by Karauli, knife, Gandasa and similar sharp-edged weapons and these injuries were sufficient to cause death. His injuries were mostly on the head, forehead, nose, lower side of the face, neck, chest, thigh, hands, fingers and back. Injury Nos. 1 and 2 were bone deep on the right side of the head; injury nos. 3 and 4 were bone deep on the forehead; injury no. 5 was cartilage deep on the nose; injury no. 6 was flesh and bone deep at the right side of the face and upper side of the neck; injury no. 7 was flesh deep at the right side of the neck and it was just below the injury no. 6 and it also cut trachea; injury no. 8 was bone deep behind the right ear; injury no. 9 was on the right side of the head and it was skulp deep; injury nos. 10 and 11 were muscle deep on the left side of chest; injury no. 12 was muscle deep at the left thigh; injury no. 13 was bone deep at the middle finger of the right hand; injury no. 14 was on the ring finger of the right hand and some portion of the finger was amputated and not available; injury no. 15 was amputated incised wound on the little finger of the right hand and its 3/4th portion was not available; injury no. 16 two incised wound bone deep at the backside of right hand and elbow; injury no. 17 was muscle deep at the right side of the back; and, injury no. 18 was two incised muscle deep wounds at the front side of the right arm. In the internal examination it was found that the brain was congested; trachea was cut; and, undigested food was found in the stomach. 17 was muscle deep at the right side of the back; and, injury no. 18 was two incised muscle deep wounds at the front side of the right arm. In the internal examination it was found that the brain was congested; trachea was cut; and, undigested food was found in the stomach. As mentioned above, according to the Doctor, time of death was in the midnight of 31st January/01st February, 1987 or in the early morning (3-4 A.M.) of 01st February, 1987 or at about 8-9 P.M. in the night of 31st January, 1987. P.W.-8 Ram Shiromani Singh, I.O., in his statement has stated that he had prepared the Fard of the torch but the said Fard was not found on the record. The trial Court after analysing the statements of P.W.-2, P.W.-3 and P.W.-4 found that their presence on the spot was doubtful. We have carefully perused the statements of P.W.-1, P.W.-2, P.W.-3 and P.W.-4.. P.W.-1, who is real brother of the victim, was declared hostile. In his cross-examination he has stated that he came to know about the death of his brother at about 07.00 A.M. In the F.I.R. it was mentioned that he woke up in the dead of night and thought to get woken up his brother Lallan, who was sleeping at the tube-well, for irrigation. The tube-well was adjacent to the village. Admittedly, there was no supply of electricity in the night as the transformer was out of order for the last several days, as mentioned by P.W.-4 Raj Narain Verma, Advocate. When there was no electricity in the night on the date of occurrence of the incident, the F.I.R. version that he was going to tube-well does not inspire confidence. Presence of P.W.-1 was shown on the spot by the P.W.-2, P.W.-3 and P.W.-4. All these witnesses have stated that when they reached on the spot, they found there P.W.-1 with his torch. In his statement P.W.-1 has denied the contents of the F.I.R. also. As regards P.W.-2, P.W.-3 and P.W.-4, their presence on the spot has been found doubtful by the trial Court. P.W.-2 and P.W.-3 have justified their presence on the ground that they were guarding their potato crops during night. P.W.-3 Vikram has deposed that he was sitting in the open field and at that time there was fog. It was also stated that the fog had started since the evening. P.W.-2 and P.W.-3 have justified their presence on the ground that they were guarding their potato crops during night. P.W.-3 Vikram has deposed that he was sitting in the open field and at that time there was fog. It was also stated that the fog had started since the evening. Presence of this witness--P.W.-3 during winter in the open field itself is doubtful. For the same reason, the presence of P.W.-2 Gulab Chand is also doubtful. Regard may be had to the fact that all the witnesses have admitted that there was complete power failure and there was no electricity supply at the tube-well. Thus, there was complete dark coupled with the fact that there was fog also, according to P.W.-3. All the eye witnesses claimed that they had seen occurrence of the incident in the light of their torch. According to P.W.-8, I.O., he had prepared the fard, but concededly the fard was not found on the record. It is also pertinent to mention that no fard of the torches of P.W.-2, P.W.-3 and P.W.-4 was produced nor they have produced their torches when made their statements in the Court. After analysing the statements of the eye witnesses i.e. P.W.-2, P.W.-3 and P.W.-4, we find that the source of light on the spot was doubtful. Hence, we are of the view that the finding recorded by the trial Court disbelieving the statements of all the eye witnesses does not suffer from any perversity. However, in our view, the trial Court fell in serious error in convicting the appellant on the basis of the evidences, which have been disbelieved by it. The trial Court, in our view, has rightly doubted the presence of the witnesses on the spot at the time of occurrence of the incident. Once it has recorded a categorical finding regarding their presence on the spot, then it was not justified for it to convict the appellant on the statements of those witnesses, whose presence itself was found doubtful. The only ground on which the trial Court has convicted the appellant is his injuries, which he alleged to have sustained during the assault on the deceased. The only ground on which the trial Court has convicted the appellant is his injuries, which he alleged to have sustained during the assault on the deceased. If the witnesses who were not present on the spot and their statements cannot be believed, then only on the basis of their statement that the appellant before fleeing from the spot had said that "vjs lkys Hkkxks eq>s Hkh pksV vk xbZ gSA", the appellant could not have been made guilty. According to P.W.-9 Dr. B.P. Gupta, he had treated Girdhari at 08.40 A.M. in the morning on 01st February, 1987 and has made entry in the accidental register. He had received an injury of incised wound of 3 x 4 inches at his right palm, which was bone deep, and the wound was profusely bleeding; the other injury which he had received near the right knee was 2 x ½ inches bone deep and both wounds were fresh. In his cross-examination he has stated that the injuries appear to have been sustained in the morning at 6-7 A.M. and he was brought on a cot and he was unable to move. He had also stated that his family members used to visit him in the hospital. P.W.-4 Raj Narayan in his cross-examination has stated that he had taken injured Girdhari from his house to Maniyar Hospital for his treatment. This important aspect has been glossed over by the trial Court. Pertinent, it would be to mention that P.W.-4 is an eye witness of the incident and in his deposition he has clearly stated that he had seen appellant--Girdhari assaulting the deceased Lallan with his Lathi and he was also trying to catch hold of Lallan. But he has also deposed that he took injured Girdhari from his house to Maniyar Hospital. Both the statements are clearly irreconcilable. He has not explained that when he had seen Girdhari committing offence, then why did he help him in admitting to hospital and in not informing the police regarding injuries. A close scrutiny of the statement of P.W.-4 goes to show that in all probability his presence was doubtful. As discussed above, when the presence of the eye witnesses have been found to be doubtful, the appellant cannot be convicted only on the ground of his injuries. A close scrutiny of the statement of P.W.-4 goes to show that in all probability his presence was doubtful. As discussed above, when the presence of the eye witnesses have been found to be doubtful, the appellant cannot be convicted only on the ground of his injuries. In his statement under Section 313 Cr.P.C. the appellant has explained his injuries that while he was cutting fodder, he had received the said injuries from fodder cutting machine and he was admitted to Maniyar Hospital. There is no evidence on the record to doubt the said statement. He cannot be convicted on the basis of the said statement of the eye witnesses, who were not present at the time of commission of the offence. We find that the finding of the trial Court holding him guilty is against the weight of evidence and it rests on the oral evidence of the witnesses, whose presence has been found doubtful. Hence, in our view, the finding of the trial Court on this aspect is perverse. In Arulvelu and another v. State represented by the Public Prosecutor and another5 the Supreme Court had the occasion to analyse the term "perverse finding". Paragraphs-24 and 25 of the judgment are relevant for this matter. It reads thus: "24. The expression "perverse" has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad6 this Court observed that the expression "perverse" means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity. 25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd.7 the Court observed that "perverse finding" means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE8 the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings." For the reasons mentioned above, we are of the view that the findings recorded by the trial Court for conviction of the appellant is not sustainable. Accordingly, we set aside the impugned judgment and order of the trial Court dated 14th March, 1988, which is under challenge in this appeal, convicting the appellant for the offence punishable under Section 302 I.P.C. and sentencing him for life imprisonment. The appellant is held not guilty of offence under Section 302 I.P.C. and is acquitted. He is on bail. He need not to surrender. His sureties are discharged. Accordingly, the appeal is allowed. Let the lower court record be sent back to the concerned Court below along with a copy of the judgment.