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2022 DIGILAW 1398 (ALL)

Girish Singh v. State of U. P.

2022-09-02

ARVIND KUMAR MISHRA I, MAYANK KUMAR JAIN

body2022
JUDGMENT : 1. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 31.10.1984 passed by IV Additional Sessions Judge, Ghazipur, in Session Trial No.37 of 1984, State Vs. Girish Singh, arising out of Case Crime No.76 of 1983, under Section 302 I.P.C., Police Station-Khanpur, District-Ghazipur whereby the appellant Girish Singh has been sentenced to life imprisonment. 2. Heard Mr. Rajrshi Gupta, Mr. Rahul Yadav and Jai Prakash Singh, learned counsel for the appellant, Mr. Om Prakash, Mr. Alok Kumar Tripathi, Mr. Sunil Kumar Tripathi and Mr. M.P. Singh Gaur, A.G.As. for the State and perused the record. 3. The prosecution story as unfolded through the record reflects that one Rani Devi wife of late Jainath Singh, resident of Village Nayakdih, Police Station Khanpur, District Ghazipur, lodged the written report at Police Station Khanpur on 19.06.1983 at 7:45 a.m. regarding some incident that took place yesterday night at 11:45 p.m. in village Nayakdih which was 9 kms. away from the police station Khanpur, with the description that the informant is the resident of within Police Station Khanpur. Her nephew Ramagya Singh son of Dashrath Singh was not having any issue and had given his landed property to the son of his uncle, Ujagir Singh, Shriraj Singh, Giriraj Singh by way of the Will. It so happened that for the last one year, there was some dispute with Shriraj Singh, therefore, the deceased Ramagya Singh began to reside with the son of his uncle, Jairaj Singh. Some property was sold out by the deceased and the sale consideration was given to Jairaj Singh due to which the accused were inimical with the deceased. 4. It so happened that on 18.06.1983 in the night, the deceased Ramagya Singh was sleeping on the cot in front of the door of Bhagwati. It was around 11:30 p.m. when Girish Singh came to the house of the informant and asked whereabouts of Jairaj Singh whereupon she told that Jairaj singh has gone to attend marriage ceremony. Upon this, the accused said that he will kill Ramagya Singh today and he will see as to how he sold out his land. He went away from there. Upon this, the accused said that he will kill Ramagya Singh today and he will see as to how he sold out his land. He went away from there. As soon as Girish Singh left her home, she raised alarm whereupon Rama Shanker Singh from her neighbourhood got up and intercepted the accused by saying that have you become mad, whereupon Girish Singh went away from the scene and saying that he proceeded on to take tobacco (Surti) and proceeded towards tubewell where the informant along with Rama Shanker Singh arrived. Thereafter, they rested in front of their houses. 5. It was around 11:45 p.m., the appellant possessing lance (Ballam) proceeded towards Rama Shanker Singh where he was sleeping and threatened him that in case he got up, he will be killed. Thereafter, the appellant proceeded towards house of Ramagya whereupon Rama Shanker Singh raised alarm then Kripa Shanker Singh and others rushed to the spot lightening torches in their hands. At that point of time, the appellant assaulted Ramagya Singh on his stomach with lance (Ballam). Ramagya Singh shouted that he will be killed. Thereafter, Kripa Shanker Singh, Rama Shanker Singh and the informant reached near Ramagya Singh. They saw lance (Ballam) being extracted by the appellant Girish Singh from the stomach (of deceased) in the torch light. Upon seeing the informant and others, the appellant fled away from the scene. Thereafter, lance (Ballam) was taken out of stomach of Ramagya Singh. No one chased the appellant out of fear. The informant could not come to lodge the first information report in the night. The report was scribed / written in the following morning and the matter was reported as such. The written report is Ext. Ka 1. 6. Contents of the aforesaid information were taken down in the Check FIR on 19.06.1983 at 7:45 a.m. at aforesaid police station at Case Crime No.76 of 1983 under Section 302 I.P.C. Check FIR is Ext. Ka-6. On the basis of entries so made in the check F.I.R., a case was registered in the relevant G.D. at serial no.10 on 19.06.1983 at 07:45 a.m. at aforesaid case crime number at Police Station Khanpur, under aforesaid section of I.P.C. against appellant, which is Exhibit Ka-7. 7. The investigation ensued and was taken over by S.P. Shukla, PW-5. He arrived on the spot. 7. The investigation ensued and was taken over by S.P. Shukla, PW-5. He arrived on the spot. In his investigation, he has proved several documents apart from Check FIR, registration of the case in the general diary, and statement of the informant as recorded by him under Section 161 Cr.P.C. Thereafter, inquest report of the deceased Ramagya Singh was prepared by the Investigating Officer. Inquest report reveals that process commenced around 9:55 a.m. and ended at 11:55 p.m. on 19.06.1983. Inquest report is Ext. Ka-9. In the opinion of inquest witnesses, it was thought proper to send the dead body for post mortem examination so that cause of death could be ascertained properly. 8. Thereafter relevant papers were prepared for sending the dead body for post mortem examination which paper are; Police Form 13 Challan of dead body Ext. Ka-10, Photonash Ext. Ka-11, letter to R.I. Ext. Ka-12, letters to C.M.O. Ghazipur Ext. Ka-13 and Ext. Ka-14, Specimen Seal Ext. Ka-15. Post mortem examination on the dead body of the deceased Ramagya was conducted by Dr. P.C. Srivastava, at District Hospital Ghazipur on 20.06.1983 at 2:00 p.m. wherein following ante mortem injuries were noted: 9. Punctured wound, margin sharp -mid line -on the abdomen 10 cm above umbilicus at 12 O' Clock position, oblique downward direction. 3 cm x 2 cm x abdominal cavity deep loops of bowel seen coming out of wound with faecal matter. 10. Cause of death was opined to be shock and haemorrhage as result of ante mortem injury no.1. Duration of death was said to be one and half day. This post mortem examination report is Ext. Ka-5. 11. During course of the investigation, Kathari, a sort of mattress used by the villagers was taken into possession, memo whereof was prepared by the investigation officer. The weapon of assault lance (Ballam) has been proved as material Ext. 1. The investigation officer also prepared site plan of the place of occurrence which is Ext.16. The Investigating Officer after completing other formalities filed charge-sheet Ext. Ka-17 against the appellant. 12. Thereafter, the case was committed to the court of Sessions from where it was made over for hearing and disposal to the aforesaid court of IV-Additional Sessions Judge, Ghazipur, who after hearing the prosecution and accused-appellant on the point of charge was satisfied with prima facie case and framed charge against the accused-appellant under Section 302 IPC. 12. Thereafter, the case was committed to the court of Sessions from where it was made over for hearing and disposal to the aforesaid court of IV-Additional Sessions Judge, Ghazipur, who after hearing the prosecution and accused-appellant on the point of charge was satisfied with prima facie case and framed charge against the accused-appellant under Section 302 IPC. Charge was readover and explained in Hindi to the accused-appellant who abjured charge and opted for trial. 13. In turn, the prosecution was asked to adduce its testimony whereupon the prosecution produced in all 5 witnesses. A brief sketch of witnesses is as under:- 14. Kripa Shanker Singh PW-1 and Rama Shanker Singh PW-2 both claim themselves to be witnesses of the incident and have given eye-account testimony of the occurrence. The informant Rama Devi PW-3 has turned hostile. Insofar as Dr. P.C. Srivastava PW-4 is concerned, he has conducted post mortem examination on the body of the deceased Ramagya Singh and noted ante mortem injury during course of the post mortem examination. S.P. Shukla, PW-5 is the investigation officer in this case. 15. No further evidence was adduced by the prosecution. Therefore, evidence for the prosecution was closed. The statement of the accused was recorded under Section 313 Cr.P.C. wherein in reply to the question no.11 and 12, specific statement has been made as to how and why PW-1 and PW-2 are deposing against the appellant basically on account of enmity in collusion with the police. PW-1 and PW-2 are agents of the police. No evidence, whatsoever, has been led by the appellant. 16. The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against appellant under Section 302 I.P.C. and sentenced the appellant to life imprisonment under Section 302 I.P.C. 17. Consequently, this appeal. 18. It has been vehemently submitted by learned counsel for the appellant that insofar as testimony of both PW-1 and PW-2 is concerned, when read cumulatively, it would come out that they did not see actual assailant causing injury with Ballam (lance) to the deceased Ramagya Singh. There was some incident of extending threat alone regarding which both the prosecution witnesses have testified with variation. There was some incident of extending threat alone regarding which both the prosecution witnesses have testified with variation. However, if testimony of one is taken to be true then it is noticeable that PW-1 Kripa Shanker Singh, who happened to be a doctor by profession, he cannot be expected to be a rustic man and unaware of the situation and not responding properly on the spot at the time of commission of the offence, for the reasons that the deceased Ramagya Singh remained alive after the occurrence for about 30 minutes. But this witness (PW-1) has tried to improve the case by stating that at the time when he reached to the spot, the deceased told him that he has been stabbed with Ballam (lance). The deceased Ramagya Singh was crying that the appellant had assaulted him. However, the statement under Section 161 Cr.P.C. is found not supported by him on this particular aspect of the case. It is noticeable that he being scribe (PW-1) of the report has not stated even a single word about the same in the first information report. If this piece of testimony is believed and taken to be true then it works in contrast to the testimony of Rama Shanker Singh PW-2. 19. As per testimony of PW-1, he did not see anyone committing the crime in question. When he arrived on the spot, he did not see anyone committing assault on the deceased with Ballam (lance). Either of the two versions of PW-1 or PW-2 may be true. As per testimony of Rama Shanker Singh PW-2, he arrived on the spot along with Kripa Shanker Singh PW-1. There is no case that Kripa Shanker Singh PW-1 did not arrive on the spot in company with Ram Shanker Singh. 20. It has been further submitted that insofar as the first information report is concerned that this is highly belated, for which no plausible reason has been assigned in the testimony of the informant PW-3 as to how the first information report was so belatedly lodged by her. However, it has been stated in the first information report that it being night hours, the first information report could not be lodged with the police station concerned that by itself is nothing but deliberate attempt to avoid the prevailing situation. 21. However, it has been stated in the first information report that it being night hours, the first information report could not be lodged with the police station concerned that by itself is nothing but deliberate attempt to avoid the prevailing situation. 21. It is noticeable that in the testimony of Kripa Shanker Singh PW-1, it has surfaced that the police had arrived on the spot prior to 10:00 a.m. on 19.06.1983 and after deliberation with the police, Daroga Ji asked that report should be written / scribed, thereafter, the report was written and lodged with the police station concerned, that fact by itself is fair enough to throw away the entire prosecution case, for the reason that as per the prosecution claim, the first information report was lodged at 7:45 a.m. on 19.06.1983, Police Station Khanpur, District Ghazipur, whereas, testimony of PW-2 is reflective of fact that the dead body was taken to the police station on tractor prior to arrival of Daroga Ji at 10:00 a.m. 22. Based upon that fact position and testified by PW-2, claim is that insofar as preparation of inquest report Ext. Ka-9 is concerned, arrival of the police on the spot was stated to be around 9:45 a.m. It was time when the preparation of inquest commenced, however the inquest was completed around 11:55 a.m. That being admitted position how can the dead body be brought to the police station Khanpur prior to 11:55 a.m. But as per testimony of the prosecution witnesses, the dead body had already been taken to the police station Khanpur, that by itself is connotative to fact that the police were acting hand in glove with the scribe and the other prosecution witnesses of this case. 23. Insofar as PW-3, informant of this case is concerned, she has denied, out and out lodging of any first information report in the shape as claimed by the prosecution witnesses. She has not supported the prosecution version. She has not accused the appellant of any act of assault being caused by him as such. The enmity with the appellant on the one hand and Kripa Shanker Singh PW-1 and Rama Shanker Singh PW-2 on the other hand is admitted. She has not supported the prosecution version. She has not accused the appellant of any act of assault being caused by him as such. The enmity with the appellant on the one hand and Kripa Shanker Singh PW-1 and Rama Shanker Singh PW-2 on the other hand is admitted. In view of the statement of the accused under Section 313 Cr.P.C. as given in reply to question no.11, both the witnesses were inimical towards the appellant, and the fact of grudge and animosity is very much proved. It is highly improbable that the appellant had killed the deceased Ramagya Singh. 24. Learned counsel for the appellant has further contended that testimony of witnesses of fact is, on the face, contradictory and full of inherent infirmities. There is no point for making charge under Section 302 I.P.C. Charge itself is erroneous. Learned trial Judge while appraising facts and evaluating evidence and circumstances misread the same and recorded erroneous and illegal finding of conviction and sentence. 25. Per contra, the learned A.G.A. retorted to aforesaid arguments by submitting that the entire scene has been described in the testimony of the Kripa Shanker Singh PW-1 and Rama Shanker Singh PW-2. Ram Devi PW-3 has not supported the prosecution case although circumstances of the case are consistently proved by PW-1 and PW-2 that prior to the incident, the appellant was threatening and he proceeded possessing Ballam (lance) towards the house / spot where the deceased Ramagya Singh was sleeping in front of the door of Bhagawati. 26. The learned counsel proceeded to add that no doubt can be raised on the innocuous testimony of PW-1 and PW-2 which positively proves guilt of the accused-appellant beyond reasonable doubt. There is no material contradiction in the testimony of the prosecution witnesses. Learned trial court has judiciously recorded conviction and has passed appropriate sentence. 27. We have also considered the rival submissions and taken into consideration rival claims. 28. In view of above, the point for determination of this appeal relates to fact as to whether the offence under Section 302 I.P.C. was committed by the accused-appellant by stabbing the deceased Ramagya Singh with Ballam (lance) on 19.06.1983 around 11:45 p.m. and he was seen by the witnesses and the prosecution has proved charge under Section 302 I.P.C. beyond reasonable doubt? 29. 29. In that regard, we would like to discuss the point of the first information report to be ante timed as raised by the learned counsel for the appellant. In that regard, we come across detailed testimony of the scribe (PW-1) of the first information report who has testified to the ambit as appear on page 24 of the paper-book that Daroga Ji arrived on the spot around 9:00 a.m. -10:00 a.m. and the report was written after 10 to 15 minutes of his arrival. That piece of testimony reveals in no uncertain terms fact that the first information report was not existing at 10:00 a.m. on 19.06.1983. Moreover, Daroga Ji who arrived on the spot had surveyed the spot, prior to the report being scribed, took stock of the situation and directed the persons present over there to sribe the report. 30. It has been stated by PW-1 on page no.25 of the paper-book that Daroga Ji took the dead body to the police station concerned on tractor. This aspect of F.I.R. being ante timed overshadows the entire prosecution case, for the reason that the entire things looked vitiated and full of ambiguity cannot be believed on its face value. It appears that Daroga Ji played hand in glove with PW-1 and PW-2. PW-2 if taken to be true then his testimony vindicates that he neither saw the appellant commit the crime nor did he see the appellant in the nearby place (of occurrence) after the occurrence. 31. The prosecution has not clarified about the piece of testimony of PW-1 appearing on page no.24 of the paper-book, as discussed above, regarding arrival of Daroga Ji on the spot around 9:00 a.m. – 10:00 a.m. on 19.06.1983 and that piece of testimony by itself is established and admitted case against the prosecution and reexamination of PW-1 on this point as was required of the prosecution was waived off by it. That being the case, the other aspects of this case need not be looked into at this stage, for the reason that the informant PW-3 has not supported the prosecution story and has stated in categorical terms that report was not written on her dictation, for the reasons best known to her. Nothing adverse of the sort has emerged in the cross-examination of PW-3 by the prosecution itself. 32. Nothing adverse of the sort has emerged in the cross-examination of PW-3 by the prosecution itself. 32. It is settled principle of criminal jurisprudence that in cases where evidence and circumstances when weighed substantially and taken cumulatively raised strong suspicion about the manner and style of the occurrence that it was in fact so caused by the accused-appellant (as claimed by the prosecution), then benefit of doubt would be the only reasonable outcome of judicial scrutiny and this benefit of doubt always works in favour of the appellants. 33. The learned trial court could not appraise substantive facts and testimony of this case in right perspective and considered things from narrow angle without properly scrutinizing the same on its entirety and intrinsic potency, instead it read testimony and circumstances only on its face value, whereas, proper scrutiny of fact vis a vis testimony on record would have brought truth on the surface. It is very easy to consider and examine testimony recorded in examination in chief, whereas, the Court has to cautiously contemplate on the entire testimony as a whole and particularly as emerging from the cross examination and then to proceed to record finding on merit for arriving at just conclusion. 34. We may record our satisfaction that arguments extended on behalf of the present appellants carry force and the same are approved and sustained by us. Consequently we hold in unambiguous term that the prosecution has not been able to prove its case beyond reasonable doubt against the appellant. Thus charge framed against him become doubtful and he is entitled to the benefit of doubt. 35. In the wake of above discussion, we may sum up that the finding of conviction recorded by the trial court is on the face erroneous and perverse and the same cannot be sustained in the eye of law. Therefore, the judgment and order of conviction dated 31.10.1984 passed by IV Additional Sessions Judge, Ghazipur, in Session Trial No.37 of 1984, State Vs. Girish Singh, arising out of Case Crime No.76 of 1983, under Section 302 I.P.C., Police Station-Khanpur, District-Ghazipur, is hereby set aside. Accused-appellant is acquitted of charge as above. Accordingly, the instant appeal is allowed. 36. In this case, the accused-appellant is already on bail. He need not surrender in this case. His bail bonds cancelled and sureties discharged. Girish Singh, arising out of Case Crime No.76 of 1983, under Section 302 I.P.C., Police Station-Khanpur, District-Ghazipur, is hereby set aside. Accused-appellant is acquitted of charge as above. Accordingly, the instant appeal is allowed. 36. In this case, the accused-appellant is already on bail. He need not surrender in this case. His bail bonds cancelled and sureties discharged. However, he shall furnish surety bonds in compliance with Section 437A Cr.P.C. 37. Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action.