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2024 DIGILAW 2520 (ALL)

Nauratan Singh v. State of U. P.

2024-12-13

SIDDHARTHA VARMA, SYED QAMAR HASAN RIZVI

body2024
JUDGMENT : 1. Upon an incident having occurred in the early hours of 29.03.1982 a first information report was got lodged on the very same date at 09:45 AM. The case as taken by the first informant was that the first informant, Bhure Singh, alongwith his two other brothers Sultan Singh and Sadhu Singh were all staying together in the same house. Sadhu Singh was to purchase some land from Vijay Swaroop of Shikohabad and, therefore, he had started from his house at Village Farida, District Mainpuri for Shikohabad alongwith some money. Alongwith him, Nauratan son of one Ganesh was also there. It had been stated in the first information report that in the morning of 29.03.1982 Sadhu Singh, the brother of the first informant, had woken up and had asked for the Rs. 8,000/- which he had given to the first informant for safe custody the previous night and the first informant, Bhure Singh had therefore given the money to Sadhu Singh. It had also been stated in the first information report that the wife of the deceased had also given some jewellary to Sadhu Singh. The first informant thereafter had stated that when Sadhu Singh was leaving the house then Sultan Singh, the third brother, who was asleep in the same house alongwith one Ram Das woke up and it had been stated that Nauratan also came to the house of the first informant and he sat at the cot where Sadhu Singh was used to sleep. In the first information report, it had been stated that Sadhu Singh alongwith Nauratan were going towards the canal (nahar) and had told the first informant that he had to take the first bus from Mustafabad. The fact that the brother of the first informant Bhura Singh had been killed by Nauratan was alleged in the F.I.R. as he felt that he was last seen with Nauratan by Sultan Singh and Ram Das. The first information report further had stated that at around 08:30 AM Jamuna Das of the village came and informed that the dead-body of Sadhu Singh was lying in the agricultural field of Raghuveer Singh. Upon getting this information, the first informant ran to look up his brother and found that his dead-body was lying in the fields as had been informed by Jamuna Das. Upon getting this information, the first informant ran to look up his brother and found that his dead-body was lying in the fields as had been informed by Jamuna Das. He had stated in the first information report itself that in the neck he had found a slight injury and that blood was also flowing out of that injury. By means of the first information report after giving the information, the first informant prayed for investigation and punishment of the guilty. 2. Thereafter, investigation commenced. During investigation, the police had on 31.03.1982 in the presence of certain independent witnesses recovered certain jewellery. The recovery was done on the pointing of Nauratan, one of the accused. It has been stated that he had alongwith the police party entered his own room and from there in the North-Western corner of the house behind some hay (bhunsa) there was an old plastic bag which was torn from various places and from it, the jewellery was recovered. The recovery memo of the jewellery was prepared and was numbered as Exhibit Ka-2. During the investigation, further on the pointing of Nauratan even the knife by which he had murdered Sadhu Singh was recovered and recovery memo of it was prepared as Exhbit Ka-3. A rope (rassi) which was found near the dead-body and had blood on it was also recovered and was numbed as Exhibit Ka-13. The plain soil and the soil which had blood was also recovered from the place where the dead-body was lying and the recovery memo was prepared and was numbered as Exhibit Ka-12. The clothes of the deceased were also taken into custody and a recovery memo of it was also prepared and was numbered as Exhibit Ka-14. 3. On 29.03.1982 itself, the panchayatnama was prepared and while the preparation of it commenced at 10:45 AM, it came to an end at 12.05 PM. The body was thereafter sent for postmortem. The postmortem was conducted on 30.03.1982 at 11:30 AM. The son of the deceased, Chandrapal, and his two wives, Smt. Devi and Smt. Kamla Devi were made to participate in the process of identification of the jewellery on the 15.05.1982. The body was thereafter sent for postmortem. The postmortem was conducted on 30.03.1982 at 11:30 AM. The son of the deceased, Chandrapal, and his two wives, Smt. Devi and Smt. Kamla Devi were made to participate in the process of identification of the jewellery on the 15.05.1982. Thereafter, when the police had submitted its report, the Court took cognizance of the matter and charged Nauratan and Abhay Singh under Section 302 read with section 34 of I.P.C. They were also charged under Section 404 of the I.P.C. This was done by the Court on 09.05.1983. Thereafter, the trial commenced and from the side of the prosecution as many as 13 witnesses were produced. 4. PW-1 was the first informant, Bhura Singh, and the real brother of the deceased. He had in his examination-in-chief stated that Sadhu Singh was the eldest brother and the one younger to him was Sultan Singh and that he himself was the youngest brother. He had in his statement-in-chief once again narrated as to why the deceased went out of the house in the early hours of 29.03.1982 and had stated that he was to buy some property from one Vijay Singh of Shikohabad and, therefore, he had to give some advance. He had stated that a day prior to the date of incident, the deceased had told the first informant that he had to go Shikohabad alongwith Nauratan in whom the deceased had faith. He had stated that the appellant Abhay Singh was his distant relative and had given out the relationship as Chacha Jaat Behnoi and that Abhay Singh used to visit the house of Nauratan. On the date of incident, he had stated that the deceased had woken him up at around 04:00 AM and had asked for the money which was required to be given as advance for the purchase of land from Vijay Singh of Shikohabad. Thereupon, he had stated that he had given Rs. 8,000/-. Alongwith the Rs. 8,000/-, which was given by him, it had been stated that, his wife had also given the deceased a chadar, a jacket and a small packet which contained some jewellery. Thereupon, he had stated that he had given Rs. 8,000/-. Alongwith the Rs. 8,000/-, which was given by him, it had been stated that, his wife had also given the deceased a chadar, a jacket and a small packet which contained some jewellery. In the examination-in-chief itself he had stated that in the house of the deceased and the first informant, Sultan Singh the third brother and one Ramdas were also sleeping and they had also got up when Sadhu Singh was leaving early in the morning. After they had left at around 08:30 AM, Jamuna Das of the village came and informed that Sadhu Singh had been killed and his body was lying in the agricultural field of Raghubeer Singh and with his help he had got the first information report scribed and after putting his signature on the first information report he had lodged the same. He had stated that when he had comeback after lodging the first information report, the wife of the deceased had told him that the jewellery of the wives of her son Chandrapal had also been given to the deceased and the jewellery which was given in a packet had two haslis which had a covering of gold; two silver kardhanis; one pair of bara and one pair of kundal (earring) of gold. In addition to that a gold chain was also given. In the cross-examination by the counsel of the other accused Abhay Singh, the first informant had stated that when he had reached the place of incident then he had not seen anybody else other than Rajendra with whose help he had got the first information report lodged. Upon being asked as to why he had not mentioned the name of Abhay Singh while lodging the first information report, he had replied he had not known the fact that Abhay Singh was also one of the culprits. Upon being cross- examined by the defence counsel of Nauratan, the PW-1 had stood firm with what he had stated with regard to the purchasing of the land which was to be done by the deceased and that how the deceased had gone alongwith Nauratan to give the advance to Vijay Singh of Shikohabad. He had stated that around Rs. 15,000 to 16,000 had to be given and for that reason the PW-1 had given Rs. He had stated that around Rs. 15,000 to 16,000 had to be given and for that reason the PW-1 had given Rs. 8,000/- and the wife of the deceased had given some jewellery which had to be mortgaged. If any amount remained then arrangements had to be made for that. He had however stated that he had not actually seen that Sadhu Singh had taken the jewellery. He had thereafter stated that in fact he had also offered to go alongwith his brother Sadhu Singh as he was carrying Rs. 8,000/- and to this offer of his Sadhu Singh had replied that he was not required to go with him as Nauratan upon whom he had a lot of faith was already going with him. Thereafter, he had stated that after he was informed of the murder at around 08:30 AM by Jamuna Das, he had gone to the police station and on the way he had met Phool Singh and Rajendra Singh who had helped him in lodging the first information report. 5. PW-2, Rajendra Singh, the person who was present at the place where the dead-body was lying when the PW-1 had gone to see the dead-body upon being informed by Jamuna Das, had in his examination-in-chief stated that on the date of incident at around 04:30 AM he was returning from his agricultural field where he met the deceased Sadhu Singh, Nauratan and another person by the name of Abhay Singh. He had thereafter stated that he had met Sadhu Singh who had asked as to where the PW-2 was going. To this the PW-2 had replied that he had visited his agricultural fields and was coming back. He used to go his agricultural fields early in the morning as there was also the fear of cattle grazing his fields. When a pointed question was asked by him as to who all were going with Sadhu Singh i.e. Nauratan and Abhay Singh, to this question before Sadhu Singh could give an answer Nauratan had stated that he was also going with Sadhu Singh to Shikohabad. Abhay Singh had stated that he was going to the canal (nahar) to ease himself there and thereafter he would return. The PW-2 thereafter had stated that he then returned to his house. He was thereafter at around 10:00 AM informed of the death of Sadhu Singh. Abhay Singh had stated that he was going to the canal (nahar) to ease himself there and thereafter he would return. The PW-2 thereafter had stated that he then returned to his house. He was thereafter at around 10:00 AM informed of the death of Sadhu Singh. He had thereafter stated that he had gone to his in-laws place to look up his mother-in-law who was ailing. In the cross- examination, he had stated that the police had recorded his statement 5-6 days after the incident. He had very categorically stated that when he had met the deceased and the accused persons then there was no other person present. With regard to the fact that the accused and Sadhu Singh had met the PW-2, information was given to Bhure Singh at 04:00 PM in the evening. He had stated that he used to see Abhay Singh virtually everyday in the village. He had stated very categorically in paragraphs 18 of his cross- examination that the head of the deceased was severed from the body by a gap of around 2-3 fingers. 6. PW-3, Dhayan Pal Singh, who was alleged to be an independent witness, had accompanied Nauratan and police party for the recovery of the ornaments and the knife. 7. P.W. 4 is one Ram Das whose name found place in the First Information Report. The first informant Bhure Singh had stated that Ram Das was sleeping in the same house where Sultan Singh, another brother of Bhure Singh and the deceased Sadhu Singh were sleeping. He has stated in his examination-in-chief that on the date of incident, he had woken up at around 04:00 AM to ease himself and he had therefore to urinate gone in the open and then he had found that Sadhu Singh was, in fact, getting ready to go out of his house. He states in his examination-in-chief that Sultan Singh and Bhure Singh along with Navratan were standing and thereafter Sadhu Singh and Navratan had taken the passage which was running by the side of the Neher and they had gone away. At around 11:30 to 12:00 in the noon, the news of the murder reached him. In his cross-examination, he had stated that police had recorded the statement on the 7 th day of the incident. 8. At around 11:30 to 12:00 in the noon, the news of the murder reached him. In his cross-examination, he had stated that police had recorded the statement on the 7 th day of the incident. 8. P.W.5, Aidal Singh is another witness who was produced by the prosecution to state that while he was going to ease himself in the morning at around 04:30 AM, he had seen Sadhu Singh, Navratan and Abhay Singh. In his cross-examination has stated that his statement was taken by the police after 5-6 days after the incident had occurred. 9. P.W.-6 Jamuna Das is the person who had given the information about the murder to Bhure Singh the brother of the deceased at around 08:00 AM in the morning. He has also stated in his cross-examination that his statement was recorded by the police about 5-6 days after the incident had occurred. 10. P.W.7 is the Executive Magistrate (Special), in whose presence the identification of the ornaments took place on the 15.05.1982. 11. P.W.-8 is the Doctor who had conducted the post mortem and had given the details of the injury on the body of the deceased. He has nowhere stated that the head was separated from the rest of the body as had been stated by P.W.2- Rajendra Singh. 12. P.W.9 is the In-charge of the Malkhana, Sadar, Mainpuri and had stated that the ornaments etc. reached his Malkhana on 14.05.1982 and it was brought by the constable Ram Saharey Dixit. 13. P.W.-10 is the writer of the Chik. He also proved the same. 14. P.W.-11 is the Jeweller, who had claimed that he was the person who had made all the ornaments which were recovered from the possession of Navratan, one of the accused. Upon being asked about the Hasli and the Kardhani, he had stated that in the last 15-20 years, he had made many of those kinds but he did not know the names of the persons for whom he had got made those jewellery. 15. P.W.12 is Chandrapal Singh, the son of the deceased. Upon being asked about the Hasli and the Kardhani, he had stated that in the last 15-20 years, he had made many of those kinds but he did not know the names of the persons for whom he had got made those jewellery. 15. P.W.12 is Chandrapal Singh, the son of the deceased. His examination-in-chief got recorded the fact that he was posted as a Head Constable at Kanpur and that he had two wives by the names of Smt. Devi and Smt. Kamla Devi and because there was shortage of space at the place of posting he had got kept his jewellery in the safe custody of his mother. In paragraph 10 of his cross- examination, he had stated that he had not stated anything about the fact that he had got kept the jewellery in the safe custody of mother as his room at the place of posting was very small. He has also stated in the very same paragraph that he had not told the police that Baburam Sonar had, infact, made the jewellery. He had stated that at the time of the recovery of the jewellery, he was not present. 16. P.W.13 is the Investigating Officer. His statement got recorded as to how he had got done the investigation. However, in the paragraph Nos. 11, 12, 13, 14 and 15 he had stated as to when he had recorded the statements of the various witnesses and of all the accused persons. 17. Thereafter, the statements of the accused were got recorded under Section 313 Cr.P.C ., wherein they had denied the commission of the crime. 18. From the side of the defence, two witnesses appeared before the Court. Puttu Lal appeared as D.W.-1. He had stated that Navratan was actually taken into custody at the time when the cremation of the deceased Sadhu Sing was being done and had very categorically stated that it was wrong to say that he was arrested on 31 st of March, 1982 at around 06:30 AM. 19. D.W.2 is Kunwar Pal Singh, the brother of Navratan, one of the accused. He has very categorically stated that at an earlier point of time, quite a few jewellery articles were stolen from his house and he had narrated exactly what was stolen from his house. The stolen articles virtually included all that had been recovered from the house of Navratan. He has very categorically stated that at an earlier point of time, quite a few jewellery articles were stolen from his house and he had narrated exactly what was stolen from his house. The stolen articles virtually included all that had been recovered from the house of Navratan. He has, in fact, stated about the theft which had taken place at his house. His brother Gurudayal Singh had also informed the police but since he himself was staying away because of his job, he had not been able to pursue the case. He has stated that all the jewellery which had been taken away from his house, half of it was shown as that belonging to the wives of Chandra Pal Singh and half of it was taken away by the police. 20. Upon conclusion of the trial, when the VI-Additional Sessions Judge, Mainpuri convicted the two appellants under Section 302 read with Section 34 I.P.C. along with Section 404 I.P.C. on 15.03.1984, the present criminal appeal was filed. When the case was called out on earlier occasions and no one appeared, notices were issued to the appellants and when the notice was also not got served and search was still going on of the two appellants, this Court appointed Sri Sayujya Singh as an Amicus Curie to argue the case. The case was heard with the help of the learned Amicus Curie. 21. Learned Amicus Curie has submitted that the appellants were innocent and to support his contention he has made the following submissions. (i) Learned Amicus Curie has submitted that the entire case was a case of circumstantial evidence and there was no direct evidence whatsoever. He has submitted that when on the 29.03.1982, the deceased Sadhu Singh had left his house, as per the first informant, he was accompanied by one Navratan. At the relevant point of time when the deceased Sadhu Singh was leaving Sultan Sing-the third brother of the first informant and Sadhu Singh were present in his house. Also present in the house was one Ram Das and they had all seen the deceased Sadhu Singh leave the house along with Navratan. Learned counsel for the appellants thereafter states that who actually killed the deceased was not seen by any eye witness. Also present in the house was one Ram Das and they had all seen the deceased Sadhu Singh leave the house along with Navratan. Learned counsel for the appellants thereafter states that who actually killed the deceased was not seen by any eye witness. Learned counsel for the appellants states that even though in the First Information Report it has been stated that Ram Das was present in the same house from where the deceased was leaving, he points out from the testimony of Ram Das that he had, in fact, stated that he was at his own house and had woken up at the exact point of time when Sadhu Singh was leaving his house along with Navratan. Learned counsel for the appellants states that this is a major contradiction and he submits that, in fact, the first informant was coming up with a falsity when he had stated that Ram Das was also in the same house where Sultan Singh, the third brother of Sadhu Singh and Bhure Singh were sleeping. (ii) Learned counsel for the appellants from the testimony of P.W.4 has submitted that Ram Das had from his house only seen Sadhu Singh leave and that he had stated that along with him were standing Sultan Singh, the third brother, Bhure Singh, the first informant and another brother of the deceased and Navratan Singh. Since, learned counsel for the appellants heavily relied upon the statement of P.W.4, the paragraph No.2 of it is being reproduced hereinunder:- (iii) Learned counsel for the appellants to bolster his argument that in this case of circumstantial evidence there was, in fact, no eye witness, he further states that P.W.-2 Rajendra Singh was a witness who was also an absolutely brought up witness. He has stated that he was not even a chance witness. He was nowhere to be seen and, in fact, he has relied upon paragraph No. 6 of the cross-examination of the P.W.1. Learned counsel for the appellants further stated that P.W.1 had gone to see the dead body of the deceased. However, he had not found Rajendra at the place of incident. Paragraph No. 6 of the statement of P.W.1 is being reproduced hereinunder:- (iv) Learned counsel for the appellant has further submitted that for the first time, P.W.2 had introduced the other accused Abhay Singh in the case. However, he had not found Rajendra at the place of incident. Paragraph No. 6 of the statement of P.W.1 is being reproduced hereinunder:- (iv) Learned counsel for the appellant has further submitted that for the first time, P.W.2 had introduced the other accused Abhay Singh in the case. He has submitted that Abhay Singh was not seen by anybody, not even the first informant and his brother Sultan Singh and, therefore, Abhay Singh was not even the person with whom the deceased was seen for the last time by the persons who had bade good bye to him from his house. Learned counsel for the appellant relying upon a decision of Hon’ble the Apex Court in case of Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 , has submitted that for the conviction of an accused in a case of circumstantial evidence, five very important aspects were required to be seen by the Court and has stated that if that was not possible then definitely conviction could not have been done. Since learned counsel for the appellant relied upon paragraph No. 152 and 153 of the aforesaid judgment, they are being reproduced hereinunder:- 152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, MANU/SC/0167/1973 : 1973 Cri LJ 1783 where the following observations were made: 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 distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. (v) Learned counsel for the appellant thereafter has submitted that the identification as was done of the recovered articles was a bogus identification. From the statement of Incharge of Malkhana, P.W.-9-Rajendra Narayan Singh, it would become clear that the recovered articles which were allegedly recovered on 31.03.1982 were kept in the Malkhana on 14.05.1982 and, therefore, he submits that the identification which done on 15.05.1982 was a bogus identification. (vi) Learned counsel for the appellants states that Chandrapal Singh and his two wives, who had gone to identify the stolen articles, definitely the articles were shown on 14.05.1982 after a period of full two months from the date when the recovered articles were put in the malkhana on 31.03.1982. Without any doubt, therefore, it could be said that the entire world had access to the recovered articles and, therefore, P.W.-12-Chandra Pal Singh and his two wives also had access to the jewellery which they identified on 15.05.1982. (vii) Learned counsel for the appellants states that when it was a case of circumstantial evidence and it was to be based on the evidence of the persons who had seen the deceased with Navratan Singh then, at least, Sultan Singh ought to have been produced. He further submits that non- production of Sultan Singh in the witness box became fatal for the case. (viii) Learned counsel for the appellants still further submitted that if the statements of the witnesses who had come forward to prove that Navratan and Abhay Singh were responsible for the murder of the deceased was seen then, it become clear that their statements under Section 161 Cr.P.C . (viii) Learned counsel for the appellants still further submitted that if the statements of the witnesses who had come forward to prove that Navratan and Abhay Singh were responsible for the murder of the deceased was seen then, it become clear that their statements under Section 161 Cr.P.C . were all recorded after 5-6 days of the incident and, therefore, he submits that the entire investigation was also a bogus one. 22. Learned AGA for the State has supported the judgment and has submitted that the conviction was based on the testimonies of P.W.1, P.W.2, P.W.3 and P.W.5. He has submitted that they were reliable witnesses and, therefore, their evidence could not be ignored lightly. He further submits that Chandra Pal Singh, the son of the deceased identified the jewellery of his wife and, therefore, there was nothing wrong in the identification which had taken place. 23. Having heard Sri Sayujya Singh, learned Amicus Curie and the learned AGA, we find that definitely in the instant case where it was a case of circumstantial evidence, the evidence which had been brought forth was not reliable. The P.W.1 had stated in the First Information Report itself that the deceased had left the house along with Navratan in the presence of Sultan Singh and one Ram Das. Sultan Singh was never produced in the witness box while Ramdas who came forward states that he has seen the incident from his own house and he was not sleeping in the house of Sadhu Singh and Sultan Singh. 24. Further, we find that P.W.-2 had, for the first time, introduced the other accused person, namely, Abhay Singh. Nobody had seen Abhay Singh along with deceased before he had left for Shikohabad and, therefore, it is evident that Abhay Singh was not, in fact, there at the place of incident. Still, further we find that all the statements which were recorded virtually of all the prosecution witness by the police were so recorded after 5-6 days of the incident and, therefore, the investigation also becomes doubtful and an absolutely tainted one. 25. Still, further we find that all the statements which were recorded virtually of all the prosecution witness by the police were so recorded after 5-6 days of the incident and, therefore, the investigation also becomes doubtful and an absolutely tainted one. 25. From the record we find, after reading the statement of Rajendra Narayan Singh, P.W.9, the Incharge of Malkhana at Mainpuri, that the recovered articles which were recovered on 31.03.1982 were, in fact, brought to the Malkhana on 14.05.1982, and therefore, the identification which had taken place on 15.05.1982 also becomes an absolutely bogus identification. 26. Thus, for the reasons stated above, we are of the view that the judgment and order dated 15.03.1984 cannot be sustained in the eyes of law. The appeal, therefore, is allowed. 27. Judgment dated 15.03.1984 is set-aside, the appellants are already on bail, they need not surrender. The sureties stands discharged. 28. For the hard work which has been put in by Sri Sayujya Singh, learned Amicus Curiae, we quantify his fee as Rs. 25,000/- which shall be paid to him by the High Court State Legal Services Authority, Allahabad High Court. The Registrar General of the High Court may oversee the payment.