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2024 DIGILAW 2529 (ALL)

Jageshwar Singh v. State of U. P.

2024-12-16

RAM MANOHAR NARAYAN MISHRA, SIDDHARTHA VARMA

body2024
JUDGMENT : 1. Heard Sri M.P. Yadav, learned counsel for the appellants, learned counsel for the informant, learned A.G.A. Sri Rahul Asthana, for the State and perused the material available on record. 2. Present criminal appeal has been filed against the judgment and order of conviction dated 20.12.1983, passed by learned Special Judge, Banda, in Sessions Trial No.112 of 1981, whereby the learned Special Judge, Banda (hereinafter referred as ‘trial court’) has convicted the appellants under Sections 447 , 302/34, 394 IPC and sentenced them as under:- (I) to undergo 3 months rigorous imprisonment under Section 447 IPC ; (II) to undergo life imprisonment under Section 302/34 IPC ; and (III) to undergo 7 years rigorous imprisonment under Section 394 IPC . All the sentences were directed to run concurrently. 3. The factual matrix of the case is that upon an incident having taken place in the midnight of 19/20.1.1981, wherein Saroj, the wife of PW-1 Ram Adhar had died, a First Information Report was got lodged on 20.1.1981 at 11:15 AM by Ramadhar Singh. The case as has been taken in FIR is that while Ramadhar Singh and his wife were asleep in their house on the first floor in the midnight of 19/20.1.1981, four miscreants entered the house. In the FIR, a complete detail has been given as to who and where people were sleeping on the ground floor. It has been stated that the mother of the first informant Smt. Bilasiya and his sister Shyama Bai were sleeping in the eastern side of the ground floor and when there was some noise from the roof of the first floor, then the mother and wife of the first informant woke up. When the wife of the first informant reached the place from where the noise was coming, the four miscreants, who were carrying firearms, fired upon the neck of the deceased and the deceased, who was wife of the first informant fell down on the empty cot, which was lying over there. Upon her falling down, one of the miscreants took out from the neck of his wife a piece of jewellery (panch moharo ka gajra, sone ka). Upon her falling down, one of the miscreants took out from the neck of his wife a piece of jewellery (panch moharo ka gajra, sone ka). After the incident had taken place, PW-1 Ramadhar ran towards the miscreants and tried to catch hold of them and when he had caught hold of one of the miscreants, the others, with the butts of their guns started beating the PW-1. However, upon a hue and cry being raised by the first informant, his two brothers namely, Moti Lal Singh and Heera Lal Singh came armed with their guns and started firing upon the miscreants. When the guns were fired, upon hearing the sounds of the firearms, Ramraj Singh and Valle Singh also came with their validly licensed guns. Upon this, the miscreants jumped out from the eastern side of the house. While they were running away, the two brothers of the first informant alongwith Valle Singh and Ramraj Singh and others, who had assembled at the place of incident saw them running away. However, since the miscreants were firing upon the collected crowd, no one dared to further run towards them and catch hold of them. It has further been stated in the FIR that the miscreants had covered their faces with a piece of cloth (angauchha). In the scuffle which followed the firing, the three persons who had covered their faces with the pieces of cloths, could not hold their coverings back and the coverings fell away and, therefore, the first informant recognized them as Jageshwar Singh, son of Prahlad Singh, Vichitra Singh son of Baijnath Singh and Sriman, son of Jageshwar Singh. He has stated that he recognized the three miscreants fairly well in the light which was coming out from the lantern and the moon light. He has stated that his brothers had also recognized the three miscreants while they were running away. They were seen by the brothers and the others, who were collected at the place of incident in the lights of torches and in the moon light. The fourth miscreant whom the first informant had not recognized, had been described as a young man with an average built wearing dhoti, kurta and sadri. He has stated that if he was brought before him, he would recognize him. The fourth miscreant whom the first informant had not recognized, had been described as a young man with an average built wearing dhoti, kurta and sadri. He has stated that if he was brought before him, he would recognize him. Still further, it has been stated that the wife of the first informant upon falling on the cot, had immediately died and that her dead body was lying on the cot. He has also stated about his injury in the FIR and has stated that on the right side of his face, there were injuries. He has also given the value of the ornament, which was stolen away. He has still further given the reason for not having lodged the FIR immediately at the time of the incident. Upon the FIR having been lodged, the police got into action and reached the spot and took into its custody the lantern and a recovery memo with regard to which was prepared as Exhibit Ka-2. The other ornaments, which the deceased was wearing were also taken into custody and their recovery memo was prepared as Exhibit Ka-3. The torch was also shown to the police and was given back to the persons who had shown them as the Supurdgars of the torches. However, recovery memo of it was prepared as Exhibit Ka-4. The plain soil and the blood stained soil were also taken into custody, the memo of which was prepared and exhibited as Exhibit Ka-15. The PW-1 first informant got his injuries treated by Dr. K.L. Agarwal and the medical report was exhibited as Exhibit Ka-17. Upon the police having come, panchayatnama was got prepared. The preparation of the panchayatnama commenced at 4:15 PM on 20.1.1981 and concluded at 5:45 PM. Thereafter, the dead body was sent for postmortem and the postmortem was conducted on 21.1.1981 at 3:00 PM. Upon the investigation having been completed, the police submitted its report and when the Court took cognizance, it framed charges under Sections 460, 302 read with Sections 34, 404, 394 IPC on 29.5.1981 against the three named accused persons namely, Jageshwar Singh, Vichitra Singh and Man Singh. 4. From the side of prosecution as many as seven prosecution witnesses were examined. PW-1 is the first informant and the husband of the deceased. He has in his examination-in-chief narrated the facts as were reported in the FIR. 4. From the side of prosecution as many as seven prosecution witnesses were examined. PW-1 is the first informant and the husband of the deceased. He has in his examination-in-chief narrated the facts as were reported in the FIR. He had stated that he had four brothers, known by the names of Heera Singh, Moti Singh, Ram Gopal Singh and Chhotey Lal. He had also stated that the name of his mother was Bilasiya and the name of his sister was Shyama Bai. The name of the wife of his brother Heera Singh was Smt. Mullan. In the statement-in-chief, he has also stated that the scribe of the FIR was one Binda Singh. Upon cross-examination, he has given various information with regard to various cases, which were pending between the first informant’s family and the accused persons. He had stated that Shyam Lal, who was real brother of Jageshwar Singh was also an accused in the murder of the uncle of the first informant namely, Jageshwar @ Jaggu. He had further stated that even Vichitra Singh, who was an accused in the instant case and was real brother of Jageshwar Singh was an accused in the murder case of Jageshwar @ Jaggu, the uncle of the first informant. 5. He has also stated that Sriman, the accused in the instant case, was the son of the Jageshwar Singh who was the accused in the murder case of Jageshwar @ Jaggu. He has thereafter also informed the Court that all the accused in the murder case of Jageshwar @ Jaggu had been acquitted. He has informed the Court that after the incident had taken place, the crowd which had collected at the place of incident had not told the first informant the names of the persons whom they had seen jumping from the eastern side of the house. The next litigation which, he had informed, was being contested between his family and the family of the accused persons, was that between Kallu and his own father, where there was a case with regard to land and he had stated that Vichitra Singh, one of the accused, was a witness against his father in that case and thereafter Kallu had won the case. The other case which he had informed of was where one Jagdish Singh son of Ram Avtar had been murdered in the village and in that case the younger brothers of the first informant Chhota Singh, Moti Lal Singh and another villager Bale Singh, his brother Gyan Prasad and his brother- in-law Satya Narayan were accused. They were all convicted and appeal had been filed against the conviction order. He has stated that Bale Singh who had been convicted in the murder of Jagdish was the prosecution witness in the instant case as well. He has thereafter also narrated that alongwith all the other accused in the murder of Jagdish Singh, Vichitra Singh and Jageshwar Singh were also accused in that case, but they had been acquitted. 6. After having narrated about a few other civil litigations, it had been brought to the notice of the Court by the learned counsel that certain evidence which was led by Moti Lal, the real brother of the first informant in the case of Rukmin Vs. Sadhu was also brought to the notice of the court in Original Suit No.1 of 1978 and in that case he had stated that Jamuniya, the widow of Sadhu, had willed her property to Sriman Singh and Rukmin the real sister of Sadhu Singh had contested the case against Sriman Singh (accused of this case) and had challenged the will. 7. Learned counsel has, therefore, submitted that when Moti Lal, the brother of the first informant had led his oral evidence in the above case, then there was enmity between Sriman Singh the accused (in the instant case) and the informants side and and therefore, the accused had been named by the first informant in the instant FIR. 8. Upon being asked as to whether there was any other literate person in the family of the first informant, the first informant had informed that Hira Lal was a Lekhpal and that he was educated upto class 8 th and that he was always visiting the house of the first informant. However, since he was not there on the date of incident, therefore, he had not got the report scribed by him. He has also stated that as everybody in the family was grieving, the report was not got scribed by Hira Singh. However, since he was not there on the date of incident, therefore, he had not got the report scribed by him. He has also stated that as everybody in the family was grieving, the report was not got scribed by Hira Singh. Upon a pointed question being asked as to why the FIR was got lodged very belatedly, PW1 had stated that the police station was around 13 miles away and that primarily was the reason for the delayed FIR. He denied the fact that the mulling over of various names as to who all could be implicated, was not the reason for the delay. Upon another pointed question being asked as to why other jewellery which his wife was wearing was not taken away, he had stated that the dacoits had only taken the jewellery which was there in the neck of the deceased and the other jewellery was not touched by them. 9. PW-2 Moti Lal, the brother of the first informant, had also given more or less the same sequence of events as was given by the first informant. He had also reiterated in his cross-examination the fact that there was enmity between the family of the first informant and the various accused persons. He had very categorically stated that he had no knowledge before the FIR was lodged as to who were the persons to be made accused in the case. He has stated that the moment Ram Adhar Singh had fallen down, the accused persons had fled away from the place or occurrence. 10. PW-3 Ram Raj Singh, was the son of Balwant and uncle of the first informant, and he was thus the cousin of the first informant. In his examination in chief, he has chiefly informed that he had seen the incident in torch light and that he had in the Court also got the torch which he could also submit in the court. Upon being asked as to where he was standing at the time of the incident, he had stated that he had informed the Darogaji, the Investigating Officer, about the place where he was standing and if that place was not provided in the site plan then he did not know the reason for that. Upon being asked as to where he was standing at the time of the incident, he had stated that he had informed the Darogaji, the Investigating Officer, about the place where he was standing and if that place was not provided in the site plan then he did not know the reason for that. He had however, spoken something which was against what the PW-1 had spoken and that was that he had seen the faces of the accused which were not covered and that they were only having a piece of cloth for covering, which was insufficient. 11. PW-4 is Bale Singh, a villager who had also reached the place of incident armed with his licensed gun. He has also stated that he had seen the four persons jumping down from the eastern side of the house of Ram Adhar. He has, however, stated that Ram Adhar was lying in an unconscious state in his house. In the cross-examination, he has also divulged all the litigations which were pending between the families of the first informant and the accused persons. He has, however, consistently stated that the first informant Ram Adhar was lying in an unconscious state when he had reached the house. 12. PW-5 is Munnu Singh, Head Constable who had proven the chik FIR and the entries of the general diary. 13. The Investigating Officer Sri Manni Lal Mishra was produced as PW No.6 and he has stated the manner in which the investigation had taken place. He had very categorically stated that nowhere at the place of incident was any wad or empty cartridges etc. found. He has denied the fact that there were any manipulation with the FIR or with the Panchayatnama. Upon a question being asked as to whether Moti Lal, the brother of the first informant had shown the empty cartridges and the wad which had fallen down as a result of the firing which he had done, he had stated that though these objects were shown to him, but he had not taken them in to his possession. 14. PW-7 is a doctor, who had conducted the medical examination on the PW-1. He had also done the postmortem of the deceased Smt. Saroj. He has proven the medical report and the postmortem report. 15. 14. PW-7 is a doctor, who had conducted the medical examination on the PW-1. He had also done the postmortem of the deceased Smt. Saroj. He has proven the medical report and the postmortem report. 15. Upon the conclusion of the testimonies which were recorded of the prosecution witnesses, the statements of three accused were recorded under Section 313 Cr.P.C. When the judgment and order dated 20.12.1983 was delivered by the trial court, the instant Criminal Appeal was filed. During the pendency of the criminal appeal two of the appellants namely Jageshwar Singh and Vichitra Singh had died and, therefore, the appeal vis-a-vis appellant No.1 Jageshwar Singh and appellant No.2 Vichitra Singh stood abated. The appeal was only argued vis-a-vis appellant No.3 Sriman Singh by Sri M.P. Yadav, Advocate. 16. Learned counsel for the appellants has stated that if the allegations made in the FIR are perused it would be clear that the three named accused persons namely Jageshwar Singh, Vichitra Singh and Sriman Singh had covered their faces with pieces of cloths and, therefore, initially the PW-1 had not been able to recognize them but when the PW-1 had entered into a scuffle with them, the pieces of clothes which were covering the faces of the three accused persons had come off and he had recognized them as Jageshwar Singh, Vichitra Singh and Sriman Singh. 17. Learned counsel for the appellants states that the fact of the matter was that certain complete outsiders had entered the house of the first informant for committing robbery etc. and that the first informant had not been able to recognize them at all but after the completion of incident, he had thought it best that the incident be not wasted away and that it be used against his enemies who were contesting various cases with his family and, therefore the names of Jageshwar, Vichitra Singh and Sriman Singh were introduced in the case. 18. Learned counsel for the appellant has relied upon the statements which were made a part of the evidence and has stated that since Moti Lal, the brother of the first informant had given evidence against Sriman Singh in the Civil Case No. 1 of 1978 (Rukmin Vs. 18. Learned counsel for the appellant has relied upon the statements which were made a part of the evidence and has stated that since Moti Lal, the brother of the first informant had given evidence against Sriman Singh in the Civil Case No. 1 of 1978 (Rukmin Vs. Sadhu) and because Ramraj had appeared in the witness box and had testified against the accused Sriman Singh, there was a definite enmity between the families of the first informant and the accused persons and, therefore, they were falsely implicated in the case. 19. Learned counsel for the appellants states that in the cross- examinations PW-1 and PW-2 had very truthfully come up with the answers that there were other criminal and civil cases pending between the parties and that, he submits, must have been a definite reason for the false implication of the accused persons. 20. Learned counsel for the appellants has further stated that the source of light had not been categorically mentioned by the prosecution. He submits that the torch and lantern which had been mentioned by the prosecution had nowhere been taken into custody by the police and, therefore, the entire case of the prosecution became baseless in the absence of any light. In this regard, learned counsel for the appellants has relied upon the judgment of this Court in Manzoor vs State Of Uttar Pradesh, AIR 1983 SC 295 . Learned counsel for the appellants specifically relied upon paragraph No.12 of the judgment and submits that when torches etc. had not been produced in the evidence, the Investigating Officer could not simply say that he had seen the torches and had returned them back to the persons who had shown the torches, would not be taken as a proper evidence. The exact portion of paragraph No.12, which is relevant for the case is being reproduced here as under:- “12. There is then the evidence of P.Ws. 1 and 2, the home- guards of whom only P.W. 2 had identified the appellants in the identification parade held on 17.11.1978. The four home- guards including P.Ws. 1 and 2 are stated to have flashed their torch lights and to have seen the two persons running away from the scene of occurrence after they had heard the alarm of the injured Gul Bahar near the railway line. The four home- guards including P.Ws. 1 and 2 are stated to have flashed their torch lights and to have seen the two persons running away from the scene of occurrence after they had heard the alarm of the injured Gul Bahar near the railway line. The torches have not been produced in evidence, and the investigating officer P.W. 12 would say in his evidence that he saw those torches 30 and returned them to the home- guards. It is not known why the investigating officer P.W. 12 thought it fit to return the torches with the aid of which the home-guards are stated to have seen the two persons running away from the scene of occurrence though that will be a relevant piece of material evidence in the case. P.W. 12 has stated that after recording the statement (Ex. Ka. 11) of the deceased Gul Bahar at the District hospital, Saharanpur he went to the mela and recorded the statements of the four home-guards.” 21. Learned counsel for the appellants further relied upon the judgment of this Court in Bhup Singh Vs. State of U.P. 2014 SCC Online ALL 11723 wherein he specifically relies upon paragraph No.19 and the same is being reproduced here as under :- “….19. As discussed above, non production of torch in the court also creates a doubt regarding truthfulness of the statements of the witnesses that they had recognized the accused persons in the torch light. In this regard, the Hon'ble Supreme Court in the case of Manzoor v. State of Uttar Pradesh, AIR 1983 Supreme Court 295 held that the accused persons were identified by the witnesses in torch light but the torch was not produced in court, the Hon'ble Apex Court held that torch has not been produced in evidence and Investigating Officer PW-12 says in his evidence that he saw those torches and returned them to Home guards. It is not known why the Investigating Officer PW-12 thought it fit to return the torch with the help of which the Home Guards are said to have seen the persons running away from the scene of occurrence though it was a relevant piece of evidence.” 22. Learned counsel for the appellants stated that it was highly improbable that one person i.e. PW-1 had a scuffle with four able-bodied persons who had come to the house of the PW-1 to commit robbery etc. Learned counsel for the appellants stated that it was highly improbable that one person i.e. PW-1 had a scuffle with four able-bodied persons who had come to the house of the PW-1 to commit robbery etc. He submits that no person in his senses would have indulged in the scuffle as had been stated by the PW-1, specially when the four accused persons were carrying firearms. 23. Learned counsel for the appellants also states that there is no evidence with regard to firing having been done from either side as no empty cartridge or wad etc. were found at the place of incident. 24. Learned counsel for the appellants further stated that despite the fact that the brother of the first informant was a Lekhpal and was a literate person, he was not asked to scribe the FIR but one Binda Singh had got the FIR scribed and he was also not produced in the witness box. 25. Learned counsel for the appellants states that if the statements of PW-2 and PW-3 are seen, it would become clear that before the FIR was lodged, they had not mentioned about any name of any person whom they had seen during the incident. Learned counsel for the appellants, therefore, submits that only after thoroughly thinking out as to who was to be made an accused, the FIR was lodged. 26. Learned counsel for the appellants further has stated that there was a contradiction in the sense that the PW-3 Ramraj Singh had at Page 62 of the paper book stated that he had seen the persons who had entered the house of PW-1 but he had stated that their faces were not covered. This was in direct contradiction to what the PW-1 had stated that all the faces of the accused persons were initially covered but the faces could be seen after there was a scuffle between the first informant and the accused persons and the pieces of clothes which were covering their faces had been removed. 27. Still further, learned counsel for the appellants states that if the statement of Bale Singh is seen then there was again a contradiction because all the witnesses had stated that PW-1 was fighting with the accused persons straight and erect, but PW-4 had stated that he had seen the PW-1 in a fainted state. 28. 27. Still further, learned counsel for the appellants states that if the statement of Bale Singh is seen then there was again a contradiction because all the witnesses had stated that PW-1 was fighting with the accused persons straight and erect, but PW-4 had stated that he had seen the PW-1 in a fainted state. 28. In effect learned counsel for the appellant states that pre-existing enmity was the reason for including the names of the accused persons in the FIR and that in fact they were not there on the spot and they were wrongly implicated in the case. 29. Learned AGA, however, in reply has submitted that the eye- witnesses could not be lightly brushed-aside and the testimony of the eye-witnesses had to be minutely looked into and minor aberrations could be brushed-aside. He submits that PW-1 was not an ordinary eye-witnesses but he was also an injured eye-witnesses and the testimony of an injured eye-witness could not be brushed-aside lightly. 30. Having heard the learned counsel for the appellant Sri M.P. Yadav and the learned AGA Sri Rahul Asthana, we do find that there were various civil and criminal cases which were either undergone between the parties or were pending on the date of incident in various courts and, therefore, the PW-1 was throughout knowing the names of the three accused persons, whom he had named in the FIR. 31. We are also of the view that when the incident had occurred and three young able bodied persons had entered the house with their faces covered and were also carrying fire arms, then the PW-1 would not have the audacity to have a scuffle with them and get the clothes, by which they were covering their faces, removed and thereafter recognize them. This appears to be a story which could not be believed at all. Further, we are of the view that when the incident had occurred and a full-fledged investigation had taken place and when no remnants of the firing were found, then also we are of the view that something fishy was there with regard to the prosecution story. This appears to be a story which could not be believed at all. Further, we are of the view that when the incident had occurred and a full-fledged investigation had taken place and when no remnants of the firing were found, then also we are of the view that something fishy was there with regard to the prosecution story. Also, relying upon the two judgments which had been cited by the learned counsel for the appellants, we are of the view that if the source of light namely torches and lanterns were shown to the police and the investigating agency, then the non-preparation of the inventories of the torches and lantern and the fact that they were not taken into custody, would go against the prosecution. 32. We, thus, for all the reasons stated above are of the view that the prosecution had not been able to prove the charges beyond reasonable doubt against the accused persons. The appellants Jageshwar Singh and Vichitra Singh have already died and the appeal against them stood abated. The appeal vis-a-vis Sriman Singh stands allowed. The judgment and order 20.12.1983 is set-aside. The appeal is thus allowed vis-a-vis Sriman Singh. 33. The appellant Sriman Singh, after non-bailable warrants were issued against him, is in jail. He be released forthwith if he is not required in any other case.