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2019 DIGILAW 2326 (ALL)

Birju v. State Of Uttar Pradesh

2019-10-14

PRITINKER DIWAKER, RAJ BEER SINGH

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JUDGMENT : Pritinker Diwaker, J. This appeal arises out of impugned judgment and order dated 11.2.1987 passed by IV Additional Sessions Judge, Bulandshahr in Sessions Trial No.471 of 1985, convicting the appellant under Sections 302 and 452 of IPC and sentencing him to undergo imprisonment for life and two years rigorous imprisonment respectively. 2. As per prosecution case, in the night intervening 18/19.7.1985, accused appellant Birju, acquitted accused Rame and two other persons entered the house of deceased-Kunvar Pal and caused gunshot injury to him. Injured was immediately taken to the Government Hospital, Bulandshahr from where, considering his serious condition, he was referred to All India Institute of Medical Sciences, (AIIMS) New Delhi where, during treatment, he died on 24.7.1985. In the meanwhile, on 21.7.1985, on the basis of written report Ex.Ka.1 lodged by (PW-1) Fatah Singh, FIR Ex. Ka.16 was registered against the accused appellant, acquitted accused Rame and two other unknown persons under Sections 452 and 307 of IPC. Further case of the prosecution is that prior to the incident, there was some quarrel between the appellant and the deceased over a dispute relating to one wall as a result of which, the deceased was done to death by the accused appellant. The incident is said to have been witnessed by (PW-2) Smt. Surajwati, wife of the deceased in the light of earthen lamp (Lantern) which was burning in the house of the deceased. Upon hearing the cries of Smt. Surajwati and the sound of gunshot, (PW-1) Fatah Singh, who was incidentally sleeping inside the house of the deceased, rushed to the place of occurrence and saw accused persons fleeing from the spot. (PW-1) Fatah Singh and (PW-2) Smt. Surajwati both have identified appellant Birju, to be one of the assailants. 3. After the death of the deceased, inquest Ex.Ka.11 was conducted on his body on 24.7.1985 and the body was sent for postmortem which was conducted on the same day by (PW-4) Dr Rohitashwa, vide Ex.Ka.7. As per Autopsy Surgeon, following ante-mortem injuries were found on the body of deceased Kunvar Pal: "1. Infected stitched wound of semi circular shape present over of tempo parietal region 23.0 cm in length starting from tragus of ear to parietal eminence. 2. Infected abraded contusion 1.5 cm above (Rt) eyebrow with healing margin of 3 x 1.0 cm size in frontal region. 3. Infected stitched wound of semi circular shape present over of tempo parietal region 23.0 cm in length starting from tragus of ear to parietal eminence. 2. Infected abraded contusion 1.5 cm above (Rt) eyebrow with healing margin of 3 x 1.0 cm size in frontal region. 3. Tracheotomy wound of 2 x 1.0 cm size in middle with 2 stitches at lower end in vertical present 3.0 cm above the suprasternal Notch. Scalp - as mentioned & hoematoma under mentioned injuries (1) & (2) Skull - linear fracture in left middle cranial fosa extending upto left mandibular joint & maxillary bone hole of 5.0 cm diameter at tempo frontal (L) region with destruction of meninges and brain tissues. Brain - extradural hoematoma over left frontal lobe on anterio superior surface laceration involving left front of tempo-parietal region of 13 x 7 x 0.5 cm size with contusion of variable size at places, two pellets found in brain tissue & are in muscle tissue." Cause of death of the deceased was due to coma as a result of ante mortem head injury, likely to be caused by gunshot injury. Injury No.(1) is sufficient to cause death in ordinary course of nature. 4. During investigation, police could not get the two unknown persons and had filed charge-sheet against the appellant and the acquitted accused Rame. 5. While framing charge, the trial Judge has framed charge against the appellant under Sections 302 and 452 of IPC, whereas against accquited accused Rame, charge was framed under Sections 452 and 302/34 of IPC. 6. So as to hold accused persons guilty, prosecution has examined seven witnesses. Statements of the accused persons were recorded under Section 313 Cr PC in which, they pleaded their innocence and false implication. 7. By the impugned judgment, the trial Judge has acquitted co-accused Rame of all the charges, whereas the appellant has been convicted and sentenced, as mentioned in para-1 of this judgment. Hence, this appeal. 8. Learned counsel for the appellant submits:- (i) that a very improbable story has been put forth by the prosecution that on account of a minor wall dispute, the deceased was done to death by the appellant. (ii) that the incident occurred in the midnight, at 2:00 am on 19.7.1985 and, therefore, question of identification of the appellant in the dark night becomes doubtful. (ii) that the incident occurred in the midnight, at 2:00 am on 19.7.1985 and, therefore, question of identification of the appellant in the dark night becomes doubtful. (iii) that there was no sufficient source of light at the place of occurrence. (iv) that there is inordinate delay of two days in lodging the FIR and no reasonable explanation has been offered by the prosecution regarding this delay. Considering the delay in lodging the FIR, possibility of false implication of the appellant cannot be ruled out. (v) that motive part has not been proved by the prosecution. (vi) that presence of lodger of FIR Fatah Singh (PW-1) at the place of occurrence is doubtful. (vii) that, in fact, some unknown thieves have entered the house of the deceased, committed his murder and that is why, while recording the inquest, this fact has been mentioned and likewise, in the postmortem report, this fact has been narrated. (viii) that had the appellant killed the deceased and the incident had been witnessed by (PW-1) Fatah Singh and (PW-2) Smt. Surajwati, a prompt report would have been lodged and, at least, while giving the history of the case, it ought to have been disclosed before the treating Doctors that it is the appellant who caused gunshot injuries to the deceased. (ix) that no weapon has been seized from the possession of the appellant. 9. On the other hand, supporting the impugned judgment, learned State Counsel submits that conviction of the appellant is in accordance with law and there is no infirmity in the same. He submits that even assuming that there is two days delay in lodging the FIR, the same appears to be justified because the family members of the deceased, including (PW-1) and (PW-2) were first taking care of the health of the deceased and then the report was lodged. He submits that there is no proper cross-examination of the witnesses regarding presence of source of light and thus, the identification of the appellant cannot be questioned at the appellate stage. 10. We have heard learned counsel for the parties and perused the record. 11. (Pw-1) Fatah Singh, is a cousin of the deceased. He submits that there is no proper cross-examination of the witnesses regarding presence of source of light and thus, the identification of the appellant cannot be questioned at the appellate stage. 10. We have heard learned counsel for the parties and perused the record. 11. (Pw-1) Fatah Singh, is a cousin of the deceased. He states that a day prior to the incident, he came to the house of his maternal uncle (Chater Singh) and had a talk with the family members, he was informed that on account of a wall between his house and the house of appellant, there was some dispute. He states that in the night, he slept in the Varandah, whereas his maternal uncle and aunt were sleeping adjacent to him. His cousin Kunvar Pal and his wife Smt. Surajwati were sleeping in another Varahdah, where an earthen lamp was burning. At about 2:00-2:30 in the midnight, he heard the sound of gunshot and as he was having his torch with him, in the torch light, he saw the appellant and other accused persons and that the appellant was having country made pistol with him. He also saw his cousin Kunvar Pal in the injured condition and thereafter, accused persons fled away from the spot. He further states that the injured was taken to Government Hospital, Bulandshahr from where, on the advice of the Doctor, he was taken to All India Institute of Medical Sciences, New Delhi. He further states that after three days of the incident, he returned from New Delhi and then lodged the report vide Ex.Ka.1. In the cross-examination, he states that for about 3-4 days he was there along with the deceased in New Delhi. He further states that from the persons present at New Delhi, Doctor had inquired as to how the injuries were sustained by the deceased, but no such personal query was made from him. In paragraph 8, he has stated that it was a dark night, but an earthen lamp was burning. He has further stated that light of earthen lamp was not sufficient to identify the accused persons and therefore, in the report lodged by him, he had disclosed that he identified the appellant in the light of earthen lamp and also in the torch light. He has further stated that light of earthen lamp was not sufficient to identify the accused persons and therefore, in the report lodged by him, he had disclosed that he identified the appellant in the light of earthen lamp and also in the torch light. He has categorically stated that he had not seen any one causing firearm injury to the deceased and he reached to the place of occurrence after the incident. He admits that there was a lane behind the house of his maternal uncle and he identified the accused while they were running from the said lane. He further states that the accused persons have crossed the wall of about five feet and he identified the accused persons after peeping from the said wall. He further states that while the accused persons were running, they turned back and that is why he could identify them. He states that acquitted accused Rame has nothing to do with his maternal uncle and likewise, he has nothing to do with the accused. 12. (Pw-2) Smt. Surajwati, is a wife of the deceased and an eye witness to the occurrence. She states that a day prior to the incident, there was a quarrel between her husband and the appellant over a dispute relating to a wall and that her husband was threatened. She further states that when the incident occurred, she heard that (PW-1) Fatah Singh came to her house. She further states that (PW-1) was sleeping along with her father-in-law and mother-in-law in a separate Varandah, whereas she was sleeping along with her husband in another Varandah. At about 2:00-2:30 in the midnight, she was cleaning her minor child who had gone to attend the nature's call and at that time, four persons jumped her wall and gained entry in the Varandah. According to her, out of four persons, she could identify the appellant and the acquitted accused Rame and that the appellant was having a firearm with him, caused gunshot injuries to her husband. After hearing her cries, her father-in-law, mother-in-law and (PW-1) Fatah Singh came at the place of occurrence after opening the door and at that time (PW-1) was having torch with him. She states that she identified the accused persons in the light of earthen lamp and after causing injuries to her husband, they fled away from the spot. After hearing her cries, her father-in-law, mother-in-law and (PW-1) Fatah Singh came at the place of occurrence after opening the door and at that time (PW-1) was having torch with him. She states that she identified the accused persons in the light of earthen lamp and after causing injuries to her husband, they fled away from the spot. She further states that her husband was immediately taken to Government Hospital, Bulandshahr from where, he was referred to the All India Institute of Medical Sciences, New Delhi and there he died after about five days. In the cross-examination, she states that three persons had covered their faces and she identified acquitted accused Rame from his voice. She further states that she might have committed a mistake in identifying the accused persons. She has also stated that the treating Doctor at Bulandshahr had never asked them as to how the injuries were sustained by the deceased nor there was any such talk while the x-ray of the deceased was being taken. She further states that she did not disclose to the Doctor as to why her husband was subjected to injuries. She further states that while she came to Bulandshahr along with the deceased, in between there was a police station, but nothing was informed to the police. She has clarified that prior to the incident, there was no marpeet between her husband and the appellant and that on account of rains, the wall fell down. She further states that when the accused persons had jumped her wall, at that time, she was cleaning her minor child who had returned after attending the nature's call and while doing so, she saw the accused persons. 13. (Pw-3) Chatar Singh, is a father of the deceased, has turned hostile. (PW-4) Dr Rohitashwa, conducted the postmortem on the body of the deceased. (PW-5) Sukhveer, is a Constable who at the relevant time was posted at All India Institute of Medical Sciences, New Delhi, has stated that on 19.7.1985, the injured was brought to the hospital. (PW-6) Chandra Pal Singh, registered FIR and did major part of investigation. (PW-7) Randeep Talwar, is a witness of inquest, has stated that, at the time of inquest, none of the accused was named and it was disclosed to him that the injuries have been caused to the deceased by thieves. 14. (PW-6) Chandra Pal Singh, registered FIR and did major part of investigation. (PW-7) Randeep Talwar, is a witness of inquest, has stated that, at the time of inquest, none of the accused was named and it was disclosed to him that the injuries have been caused to the deceased by thieves. 14. Close scrutiny of the evidence makes it clear that on or around 19.7.1985, deceased Kunvar Pal sustained gunshot injuries and was taken to Government Hospital, Bulandshahr from where, he was referred to All India Institute of Medical Sciences, New Delhi, where he succumbed to his injuries on 24.7.1985. In the meanwhile, on 21.7.1985, on the basis of written report Ex.Ka.1 lodged by (PW-1) Fatah Singh, FIR Ex.Ka.16 was registered against the appellant and three other accused persons under Sections 452 and 307 of IPC. According to prosecution, it is the appellant who caused firearm injuries to the deceased, resulting his death and the incident has been witnessed by (PW-2) Smt. Surajwati, wife of the deceased, who has stated that she saw the incident in the light of earthen lamp (Lantern) and, at the same time, she also states that she might have committed mistake in identifying the accused persons. 15. Another important witness of the prosecution (PW-1) was incidentally present at the place of occurrence. He states that after hearing the sound of gunshot, he along with his maternal uncle (hostile) and aunt (not examined) rushed to the place of occurrence and saw the appellant fleeing from the spot. He further states that he had a torch in his hand and saw the occurrence in the torch light and also in the light of earthen lamp (Lantern). Nowhere in his statement, he has clarified as to how all of a sudden he reached to the house of his maternal uncle. There is absolutely no justification as to what for he had gone to the house of the deceased. His presence at the place of occurrence becomes doubtful because the FIR is not a prompt one. Undisputedly, the FIR has been lodged after two days of the incident in which (PW-1) had shown himself to be present at the place of occurrence and allegedly saw the appellant fleeing from the spot. Even according to (PW-1), he saw the appellant in a lane after jumping the wall of about five feet. Undisputedly, the FIR has been lodged after two days of the incident in which (PW-1) had shown himself to be present at the place of occurrence and allegedly saw the appellant fleeing from the spot. Even according to (PW-1), he saw the appellant in a lane after jumping the wall of about five feet. If (PW-1) had seen the appellant in a lane, whether the light of earthen lamp (Lantern) was there or not, has not been made clear by the prosecution. According to prosecution itself, the earthen lamp was burning in the Varandah of the house, whereas (PW-1) saw the appellant in a lane. In the surrounding circumstances, presence of (PW-1) at the place of occurrence becomes doubtful and likewise, seeing the appellant by (PW-1) also becomes doubtful. The prosecution has further failed to establish that the light of earthen lamp (Lantern) was good enough where the accused persons could have been identified by the witnesses in a dark night when the incident occurred inside the house. 16. Yet another important aspect of the case is that injured was taken to two Government Hospitals, first at Government Hospital, Bulandshahr and thereafter, at All India Institute of Medical Sciences, New Delhi, but nowhere this fact was disclosed to the treating Doctors that it is the accused persons who caused gunshot injuries to the deceased. As per prosecution case, it was disclosed by the witnesses that some thieves have entered the house of the deceased and committed his murder and, therefore, possibility of false implication of the appellant, in a delayed FIR lodged by (PW-1) Fatah Singh, cannot be ruled out. True it is that delay in lodging the FIR in every case is not fatal, but if the facts of the present case are considered along with the evidence available on record, two days delay in lodging the FIR creates a serious doubt as to whether the report lodged by (PW-1) is genuine or not. Law in this respect is very clear. In Jai Prakash Singh vs. State of Bihar, (2012) 4 SCC 379 the Supreme Court, while dealing with similar issue, held as under: 12. The FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. Law in this respect is very clear. In Jai Prakash Singh vs. State of Bihar, (2012) 4 SCC 379 the Supreme Court, while dealing with similar issue, held as under: 12. The FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. (Vide: Thulia Kali vs. State of Tamil Nadu, (1973) AIR SC 501; State of Punjab vs. Surja Ram, (1995) AIR SC 2413; Girish Yadav & Ors. vs. State of MP, (1996) 8 SCC 186 ; and Takdir Samsuddin Sheikh vs. State of Gujarat & Anr., (2012) AIR SC 37)." 17. The evidence collected by the prosecution creates a doubt as to whether the incident has been witnessed by (PW-2) Smt. Surajdevi or not and likewise, whether (PW-1) Fatah Singh was present at the time of occurrence and saw the appellant fleeing from the spot. Furthermore, according to (PW-2) Smt. Surajwati, out of four accused persons, three had covered their faces and even she has not stated that it is the appellant only who was present with his uncovered face. In this view of the matter, we are of the view that the prosecution has failed to prove the guilt of the appellant beyond a reasonable doubt and in such a situation, the appellant deserves to be given benefit of doubt. In Kali Ram vs. State of Himachal Pradesh, (1973) AIR SC 2773 the Supreme Court, while dealing with the issue relating to withholding or affording benefit of doubt, observed as under: "26. In Kali Ram vs. State of Himachal Pradesh, (1973) AIR SC 2773 the Supreme Court, while dealing with the issue relating to withholding or affording benefit of doubt, observed as under: "26. It needs all the same to be re-emphasised that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. The courts would not be justified in withholding that benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, in our opinion, is more apparent than real. As observed on page 3 of the book entitled "The Accused" by J.A. Coutts 1966 Edition, "When once it is realised, however, that the public interest is limited to the conviction, not of the guilty, but of those proved guilty, so that the function of the prosecutor is limited to securing the conviction only of those who can legitimately be proved guilty, the clash of interest is seen to operate only within a very narrow limit, namely, where the evidence is such that the guilt of the accused should be established. In the case of an accused who is innocent, or whose guilt cannot be proved, the public interest and the interest of the accused alike require an acquittal. 27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiation. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether. It may in this connection be apposite to refer to the following observations of Sir Carleton Allen quoted on page 157 of "The Proof of Guilt" by Glanville Williams, Second Edition: "I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos." The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahabrao Bobade & Anr., (1973) AIR SC 2622 as is clear from the following observations : "Certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations". 18. 18. Having considered the aforesaid facts, law and the evidence available on record, in our opinion, present appeal deserves to be allowed. Order accordingly. The impugned judgment and order is set aside. Since the appellant is reported to be on bail, no further order is required in his respect. 19. Let a copy of this judgment be sent to the concerned trial Court forthwith for compliance. 20. We appreciate the assistance rendered by Sri Abrar Ahmad Siddiqui, learned Amicus and the State Government is directed to pay him Rs.7,000/- towards his remuneration.