RESERVED
Case :- CRIMINAL APPEAL No. - 1243 of 1989 Appellant :- Ashok Kr. And Ors.
Respondent :- State Counsel for Appellant :- S.S.Shukla Counsel for Respondent :- D.G.A.,A.G.A.
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Mukhtar Ahmad,J.
1. Assailing the judgment and order dated 06.06.1989 passed by Sessions Judge, Ghaziabad in Sessions Trial No. 85 of 1988 (State Vs. Ashok and others) under Section 302, 302/34 I.P.C. this appeal has been preferred whereby all the accused persons were convicted and sentenced to undergo life imprisonment. During pendency of this appeal Smt. Hansa-appellant no. 2 passed away and appeal has been abated on her behalf vide order dated 6.9.2014. Appellant no. 1-Ashok Kumar is absconding. Now this appeal is being pressed on behalf of appellant no. 3- Brahm Prakash only.
2. F.I.R. of the incident was lodged by the first informant Janeshwar Dayal PW1 stating that on 15.11.1987 some altercation took place between Manoj and accused Ashok Kumar in a cricket match. His son Manoj returned and was washing his clothes near the tap in his house, at that time informant, his son Rakesh, neighbour Ashey, Sukhpal and Jai Singh were also present in the house. At about 2.00 p.m. accused persons Ashok, his mother Smt. Hansa and their relative Brahm Prakash suddenly entered into his house and reached near his son Manoj. He was caught hold by appellant Brahm Prakash and appellant Hansa exhorted Ashok to assault with Chhuri on which Ashok gave a blow in the chest of Manoj who fell down and succumbed to the injuries. Accused persons succeeded in running there from.
3. The investigation was conducted by the Raj Pal Singh, PW-5.
He rushed to the spot, conducted the inquest and prepared Chitthi R.I. , Photoo Lash, Challan Lash, Ex. Ka 3 to 6. The dead body was sealed and handed over to constable Satpal and Tejpal for post mortem. He also collected simple and blood stained mud from the spot. He inspected the place of occurrence and prepared site plan Ex. Ka-8. He also recorded statement of the witnesses. At the instance of the accused Ashok, the weapon of assault i.e. Chhuri was also recovered in presence of the witnesses and Fard was prepared. Accused persons were arrested and sent to jail. After concluding the investigation charge sheet was submitted against all the accused persons. The case being triable by Session, was committed to the court of sessions where charges were framed. Accused persons pleaded not guilty and claimed to be tried.
4. To bring the guilt at home, as many as seven witnesses were adduced on behalf of the prosecution.
5. P.W.1 Janeshwar Dayal is the first informant and father of the deceased Manoj Kumar. It has been stated by him that on the day of incident at about 2.00 p.m. his son Manoj was washing his clothes near the tap in the house. At that time his other son Pintoo, wife Shakuntala, neighbour Ashey and Sukhpal were also present in the house. Accused Ashok Kumar, Hansa and Brahm Prakash came in his house together and reached near Manoj. Ashok was having Chhuri in his hand. Accused Hansa exhorted Ashok to kill Manoj. Appellant Brahm Prakash caught hold Manoj and Ashok gave a fatal blow on the chest of Manoj. He fell down on the earth and succumbed to the injuries. Thereafter accused persons succeeded in running therefrom. When they were running Sukhpal PW.-2 also came on the spot. P.W. 2 Sukhpal has stated in his oral testimony that he was making wall in nearby and Manoj was washing his clothes then Ashok gave blow of Chhuri on the chest of Manoj. At that time no other was with him, he was alone. Accused appellants Brahm Prakash and mother of Ashok were at the door. This witness was declared hostile. P.W. 3 Asey was also adduced as an eye witness of the incident but he did not support the prosecution version and stated that on the date of occurrence at about 3.00 p.m. when he returned after duty, there was whisper in the village that Manoj was murdered by Ashok. The dead body of Manoj was lying near the tap in his house. This witness was also declared hostile. P.W. 4 Smt. Shakuntala is the mother of the deceased. It has been stated by this witness that on the day of incident at about 2.00 p.m. his son Manoj was washing his clothes near the tap. Ashok, Hansa and Brahm Prakash entered into her house. Suddenly Brahm Prakash caught hold Manoj and on the exhortation of Hansa, Ashok gave a blow on the chest of the Manoj with Chhuri. He fell down and succumbed to the injuries sustained. Thereafter all the accused persons succeeded in running there from. P.W. 5 S.I. Raj Pal Singh is the I.O. of this case. He has proved the charge sheet, inquest and other papers prepared by him during investigation. The memo of recoveries of simple, blood stained mud and weapon of assault got recovered by Ashok was also proved by this witness. The site plan prepared by him has also been proved. P.W. 6 Constable Prem Chandra Sharma is a witness who had registered the F.I.R. and prepared G.D. which were proved by this witness. P.W. 7 Dr. S.C. Banga is a witness who had conducted autopsy on the dead body of the deceased and he noted following injury on the dead body of the deceased- Manoj-
“Incised would 3 cm x 1.5 cm x chest cavity deep margins sharp spindle shaped on the left side front of chest 1 cm away from the left nipple at 9 O' clock position.”
On internal examination 1 liter blood was found in the chest cavity. Heart membranes and right chamber of the heart were cut. He has proved the post mortem report.
6. After concluding the prosecution evidence statement of the accused persons were recorded under Section 313 Cr.P.C. The accused persons denied the prosecution version and evidence adduced against them. It was additionally stated by the appellant Brahm Prakash that he reside in Delhi. Smt. Hansa was also serving in his department and he had come to meet Smt. Hansa.
7. On behalf of the defence Shiv Charan was also examined as DW1. It has been stated by this witness that on the day of incident co-villager Itwari had expired. His dead body was taken to Cremation Ground at about 2.00 p.m. In his last cremation villagers of all the communities took participation because he was an age old and gentle person. This witness also stated that at about 3.45 p.m. one boy came to cremation ground and disclosed that Manoj sustained injuries. He and Janeshwar reached to the house where Manoj was lying dead on a cot.
8. Learned trial court after hearing both the parties observed that the presence of the witness Janeshwar Dayal, PW-1 and his wife Shakuntala PW-4 was natural. The evidence of P.W.2 Sukhpal was considered partly supporting prosecution version. Evidence of P.W. 3 Asey was ignored observing that this witness has stated that he was not present at the time of incidence meaning thereby he would not be able to narrate the incident in minute detail and in the last it was observed that prosecution succeeded in proving his case against the accused persons beyond reasonable doubt and all the accused persons were convicted and awarded the sentence, as stated above. Feeling aggrieved with the judgment and order impugned this appeal has been preferred.
9. We have heard Sri S.S. Shukla, learned counsel for the appellants and Sri I.P. Srivastava, learned Additional Government Advocate I along with Sri Rajesh Kumar Mishra, Brief Holding for the State of U.P..
10. Before appreciating the arguments made on behalf of the rival parties it would be proper to mention some admitted facts. Admittedly, this appeal is being heard in respect of appellant Brahm Prakash only. During pendency of the appeal accused Hansa has passed away, hence appeal has been abated in her respect. It is also admitted fact that the main role of stabbing was attributed to appellant Ashok Kumar. The role of exhortation was assigned to appellant no. 2 Hansa and role of catching hold has been attributed to appellant Brahm Prakash on whose instance this appeal is being argued. It is also to be stated that P.W. 2 Sukhpal and P.W. 3 Asey were adduced on behalf of the prosecution as eye witnesses but they did not support the prosecution version and were declared hostile. It is also a fact that only single incised would was found on the body of the deceased.
11. Learned counsel appearing on behalf of the appellant has assailed the impugned judgment on various grounds. He has submitted that there is no evidence worthy of credence to establish the prosecution case and impugned judgment lies more on surmises than on facts proved beyond reasonable doubt. It has been stated by him that F.I.R. is ante timed. In this regard he submits that the incident is said to have taken place at 2.00 p.m. and F.I.R. was registered at 2.45 p.m. while police station is only about km away from the place of occurrence. He further says that PW4 Shakuntala, mother of the deceased has stated in her oral testimony that she does not know the name of Brahm Prakash, whose name could be known after the death of Manoj but in the F.I.R. name of Brahm Prakash has been disclosed. and all these circumstances suggest that the F.I.R. was lodged after due consultation and knowing the name of the appellant Brahm Prakash.He also added that FIR shows that special report was sent next day and no reason of delay has been shown from the side of prosecution. It is also submitted that there is unnatural conduct of the first informant P.W.1 Janeshwar Dayal and his wife P.W.4 Shakuntala, who are the parents of the deceased and incident is said to have taken place in their house but at the time of incident parents and other witnesses made no attempt to take the victim out of the grapple of the appellant and after the incident none of them put the deceased in their laps nor put the dead body on any cot. It is also contented that appellant – Brahm Prakash is not the resident of the village Rajapur where the incident took place rather he is a resident of Delhi and he had no motive for committing the murder of the deceased. It has also been vehemently argued by learned counsel for the appellant that role of catching hold has been attributed to the appellant but the presence and role assigned to the appellant has not been established by reliable evidence. The prosecution witness PW-2 and PW-3 Sukhpal and Asey have denied this fact in their oral testimony. DW-1 Shiv Charan has stated that in cremation ground he had heard the news about 3.45 p.m. that Manoj was injured and PW-1 Janeshwar Dayal remained with him from 2.00 p.m .to 4.00 p.m. Further role of catching is a very week type of evidence. It is case of single injury caused by Ashok Kumar and the weapon of assault(Chhuri) was also recovered at his instance and there was no any common intention of the accused with other co-accused persons so appellant is not liable to be convicted under Section 302 I.P.C. With the help of Section 34 I.P.C. It is further contented that learned trial court has scrutinized the prosecution evidence in slip shod manner and arrived at a wrong conclusion.
12. In view of the submissions made on behalf of the learned counsel for the appellant the record shows that the incident is said to have been taken at 2.00 p.m. and F.I.R. was lodged at 2.45 p.m. in which special report is shown to be sent to the magistrate on 16.11.1987 but on these grounds alone it cannot be said that F.I.R. was ante timed and the submission in respect of lodging the F.I.R. after knowing the name of the appellant too,cannot be accepted in this regard.
13. Now we have to decide the role and participation of the appellant. As per FIR version appellant Brahm Prakash caught hold the deceased and on the exhortation of Hansa, co-accused Ashok assaulted the deceased with Chhuri. This fact is also disclosed by P.W.1 in his oral testimony. P.W.2 Sukhpal in his oral testimony has stated that at the time of incident deceased Manoj was washing his clothes and accused Ashok assaulted him by Chhuri and at that time no other was with Ashok and he was alone. Further it has been stated by this witness that Brahm Prakash and Hansa were standing at the door. P.W.3 Asey has stated that in his presence nobody assaulted the deceased. He had come to his house after duty and there was whisper in the village that Manoj was murdered by Ashok. P.W. 4 Shakuntala in her examination in chief says that she was not knowing Brahm Prakash earlier but in cross examination it has been stated by her that though she was knowing Brahm Prakash but could know his name after the death of Manoj. P.W.1 Janeshwar Dayal and P.W. 4 Shakuntala in their oral testimony have stated that they did not touch the dead body of the deceased even after his death. There is no evidence on record to show that these witnesses being parents made any attempt to take the victim out of the grapples of accused appellant. This type of attitude of parents of deceased in the given situation is highly un-natural. It is very strange that P.W.-4 Shakuntala, mother of the deceased has stated that she could know about the death of Manoj on the saying of people on the spot ' ej x;k ej x;k ' and at that time 50-60 co- villagers were gathered on the spot soon after the incident. She further says that after the incident neither her husband nor she or any other person touched the dead body nor put the dead body in their lap. Admittedly, role of catching hold has been attributed to the appellant and main role of stabbing has been assigned to co- accused Ashok Kumar. When appellant was catching hold the deceased then in normal way the cloths of appellant would contain blood stains but there is nothing on record to show that blood spots were found on the clothes of the appellant. The unnatural behaviour of the parents of the deceased coupled with the evidence of PW2 Sukh Pal and DW1 Shiv Charan creats a doubt in our mind with regard to the participation of the appellant Brahm Prakash.At this place it may also be a point to be noted that admittedly appellant is not the resident of village where incident is took place and he is resident of Delhi so it was very easy for him to escape from the spot but he was arrested from the house of Hansa after the incident,which also reflect some strength in his statement under section 313 Cr.P.C that he and Hansa serve in the same department and he had come to met Her.If he was involved in the crime then in normal situations he would like to hide himself. In Manoharan and others vs State, rep. By S.I. Of police 3003 A.Cr.R. 1564 Hon'ble Supreme Court gave benefit of doubt to the accused persons,who were assigned role of catching hold to facilitate stabbing by other accused, on the ground that no effort to save the victim, even an attempt to take the victim out of the grapple of accused persons was made. This law is applicable in the present situations of this case .
17. As a result of our above discussion and independent analyses of the evidence on record coupled with the infirmities which we have noticed above, has created an impression to our mind that prosecution has not been able to bring home the guilt to the appellant beyond a reasonable doubt. Consequently, appellant BrahmPrakash is entitled for benefit of doubt.
18. Accordingly appeal succeeds and is hereby allowed. The judgment and order of conviction and sentence dated 06.06.1989 passed by Sessions Judge, Ghaziabad in Sessions Trial No. 85 of 1988 (State Vs. Ashok and others) under Section 302, 302/34 I.P.C. Is set aside. Appellant BrahmPrakash is acquitted giving benefit of doubt. His bail bonds are cancelled and sureties are discharged from their liabilities.
Order Date :- 28.5.2018 M.A.Ansari