Reserved
Case :- CRIMINAL APPEAL No. - 2207 of 1985 Appellant :- Deshraj Respondent :- State Of U.P.
Counsel for Appellant :- T. Rathore Counsel for Respondent :- D.G.A.
Hon'ble Govind Mathur, Chief Justice Hon'ble Chandra Dhari Singh,J.
[ Per: Hon'ble Chandra Dhari Singh,J.]
1. The instant criminal appeal has been preferred on behalf of the accused-appellant against the judgment and order dated 23.08.1985 passed by the II Additional Sessions Judge, Aligarh in Sessions Trial No. 99 of 1984 convicting all the appellants under Section 302/149 I.P.C. and sentencing them to life imprisonment and further convicting the appellants Deshraj and Khilli under Section 148 I.P.C. sentencing them two years imprisonment and further convicting the appellants Neksa, Niranjan, Debua @ Ganga Saran under Section 147 I.P.C. sentencing them one year rigorous imprisonment.
Brief Facts:
2. (I) Brief facts of the case giving rise to the present appeal is that the deceased Janak Singh, husband of the complainant Smt. Phoolwati, had given his land for cultivation on Batai to the accused Deshraj and there was some dispute over the sharing of the profits of the cultivated crop and due to this Janak Singh, the deceased, terminated the contract with the accused Deshraj for further cultivation on the said land. This behaviour of Janak Singh incurred ill-will between Deshraj and Janak Singh. It is also alleged by the complainant that there is some property dispute also in between Deshraj and Ram Pal, who is elder brother of the deceased Janak Singh. On 4.1.1983 at about 8.00AM in village Bilokhari the complainant Smt. Phoolwati alongwith her husband Janak Singh and her son Dinesh had gone to her fields when accused Deshraj, Neksa, Daua @ Ganga Saran, Niranjan and Khilli as well as Ram Pal forcibly took away the deceased Janak Singh in a Mandhiya and beaten him with danda and hansiya. The accused Deshraj and Khilli were armed with hansiya and the remaining accused were armed with danda. The complainant raised alarm but nobody came forward to help her. Besides, the accused also gave one or two danda blows to the complainant Smt. Phoolmati. The deceased Janak Singh succumbed to his injuries on the spot. Thereafter, the complainant leaving the dead body on the spot lodged a written FIR of this incident at police station Hathras Junction at 10.30 AM against the six accused persons. The distance of the police station from the place of occurrence is ten miles. Thereafter the matter was investigated and after completion of investigation all the accused were sent up before the concerned Magistrate, who committed them to the Court of Sessions.
(II). At the commencement of the sessions trial after hearing the parties charges under Sections 148, 302/149 IPC were framed against the accused Khilli and Deshraj. A separate charge-sheet under Sections 147, 302/149 was framed against the accused Ram Pal, Neksa, Daua @ Ganga Saran and Niranjan. All these accused pleaded not guilty to the charges and claimed a trial.
(III). The prosecution in this case originally examined only two witnesses i.e. PW-1 Smt. Phoolwati, the complainant, and PW-2 Dinesh, son of the complainant. All the formal documents, in this case, were admitted into evidence as their formal proof was waived by the learned counsel of the defence.
(IV). After recording the statement of the accused under Section 313 Cr.P.C. the case went upto judgment. At that stage, it was though desirable to examine Devi Sing Panwar, S.I. who investigated this case and Dr. V.D. Pathak, who conducted the postmortem examination of the deceased Janak Singh. They were, accordingly, examined as CW-1 and CW-2 respectively. Various police documents and postmortem examination report admitted into evidence as their formal proof was waived. After this additional evidence the accused were again re-examined under Section 313 Cr.P.C. to state about the version of these witnesses.
(IV). The trial court after concluding the proceedings vide judgment and order dated 23.08.1985, convicted the appellants herein for committing the murder and sentenced them to undergo life imprisonment.
(V). Aggrieved by the judgment and order dated 23.08.1985 passed by the II Additional Sessions Judge, Aligarh in Sessions Trial No. 99 of 1984 (State vs. Ram Pal and five others) under Sections 148, 302/149 and 147, 302/149 IPC, the instant criminal appeal was preferred by the appellants.
3. P.W.-1 Smt. Phoolwati, widow of deceased Janak Singh, lodged a written FIR at police station Hathras Junction soon after the occurrence at 10.30 A.M. The distance of the village Bilokhari from police station Hathras Junction is 10 miles. P.W.-1 stated in her testimony that after incident had taken place, she went to police station Hathras Junction and got FIR scribed from a boy outside the police station and secured her thumb impression thereon. She, thereafter, presented that written complaint to the police Inspector of the concerned police station. On that written report, FIR was lodged. It is further stated in the deposition that the said boy who had scribed that FIR did not read over to her. The FIR was exhibited as Exhibit Ka-1. In her cross-examination the P.W.-1 deposed that when she dictated the FIR to the scribe, the S.O. Was present at the police station. She also stated that the S.O. dictated this FIR.
4. P.W.-2 Dinesh, minor son of deceased Janak Singh, has stated in his testimony that on the date of occurrence that he and his mother went to the field together because these accused persons were planning to kill his father. He also stated about the ill-will of the accused persons against his father. P.W.-2 in his testimony stated that there were some dispute between the deceased and the accused persons regarding property and the caste rivalry. P.W.-2 has fully supported the version of P.W.-1 and there are no contradictions in their statement.
5. The postmortem of the dead body of the deceased was conducted by C.W.-2 Dr. V.D. Pathak and there were 15 ante-mortem injuries, which are as under:
1 Incised wound 2.1/2” x 1” x bone deep over left occapital region, under injury bone cut, and brain matter coming out. Margins of wound are clean cut.
2 Incised wound 2.1/2 x 1.1/2” x bone deep over left side head 1.1/2” above injury no. 1. Bone fractured and brain matter coming out. Margins of wound sharp clean cut.
3 Incised wound 1.1/2” x 1/2” x bone deep over left side vault skull 4.1/2” above left ear margins clean cut.
4 Incised wound 1.1/2” x 1/2” x bone deep 1.1/2” above injury no.3 margins of wound are clean cut.
5 Incised wound 1” x 1/2” x bone just above left ear, left side of skull tamporal region.
6 Incised wound 1.1/2” x 1/2” x bone over left side forehead, bone under injury is depressed.
7 Incised wound 2” x 1” x bone deep, bone depressed under injury in pieces fractured 1.1/2” above right eye brow.
8 Incised wound 1.1/2” x 1/2” x bone deep over pareatal region mid line, bone under injury fractured.
9 Incised wound 1.1/2” x 1” x bone deep over right occipital region. Margins of wound are sharp and clean cut. Brain matter coming out.
10 Incised wound 1/2” x 1/4” x bone upper eye lid, bone fractured.
11 Incised wound 1.1/2” x 1” x orbit deep. Bone fractured, orbit cut and eye damaged.
12 Incised wound 1/2” x 1/4” x bone deep over bridge of nose over face.
13 Incised wound 1” x 1/2” x through and through whole thickness of lower lip and chin. Bone fractured and teeth broken.
14 Incised wound 1” x 1/2” x bone deep behind lobule of right ear.
15 Abrasion 2.1/2” x 1” over back lower part.
6. C.W.-1 S.I. Devi Singh Panwar has stated in his testimony that he was posted as S.O. Hathras Junction on 4.1.1983. He further stated that he examined Smt. Phoolwati, the complainant, soon after the registration of FIR and reached the place of occurrence. He took the statement of P.W.-2 Dinesh at the place of occurrence. He made a spot inspection and, thereafter, prepared and proved site plan as Exhibit Ka-4. He further stated that he also took the sample of blood stained earth and simple earth from the place of occurrence and exhibited as Exhibit Ka-7. He also ceased two blood stained Dandas as Exhibit Ka-8 and one Hansiya as Exhibit Ka-9. The recovered articles were also sealed at the spot. The inquest report of dead body of Janak Singh was also prepared at the spot as Exhibit Ka-15. The body was sent to the hospital at Aligarh for postmortem examination vide challan of dead body as Exhibit Ka-16.
7. C.W.-2 Dr. V.D. Pathak admitted in his cross-examination that 14 injuries out of 15 were found on the person of the deceased are on the head region and 15th injury is on a corner of the back. C.W.-2 has further stated that if the light weapon is used with force, the injury sustained by the deceased can be caused. C.W.-2 also gave a positive opinion that death can be caused on 4.1.1983 at about 08.00 A.M. However, he further stated that there can be difference of 6 to 8 hours in the time of death.
8. Learned counsel for the appellant by referring the statement of P.W.-1, who is the complainant of the present case, submits that in chief testimony the P.W.-1 stated that she has dictated the FIR to one boy and boy had written the same on her dictation and same was handed over to the S.O. for lodging the FIR but in the cross-examination she has stated that the dictation of FIR was made by the S.O. himself in the police station, therefore, the FIR is not genuine and same had been lodged only to implicate the present appellant. Learned counsel further submits that P.W.-1 and P.W.-2 are not reliable witnesses and they have not seen the occurrence. He submits that from the site plan Exhibit Ka-3 there was no place shown from where the witnesses P.W.-1 and P.W.-2 have seen the occurrence. He further submits that in the cross-examination C.W.-1, the Investigating Officer of the case, has stated that he indicated point D in the site plan from where the deceased was dragged up to the point A by the accused persons.
9. Learned counsel for the appellant further submits that there is no ante- mortem injury of the Lathi on the body of the deceased and it is doubtful that the accused who were alleged to have been armed with Lathi participated in the said murder. It is further submitted that the Hansiya, which was used in the said incident, is not such a weapon which can cause death normally by a single blow. Learned counsel submits that the names of the accused Deshraj, Khilli, Debua and Niranjan were added by the police in the FIR and they were not present at the spot and they had not participated in the alleged incident.
10. Learned AGA vehemently opposed the submissions advanced by learned counsel for the appellant by contending that P.W.-1 and P.W.-2 are the natural and truthful witnesses and there are no contradictions in their statements and they fully supported the version of the FIR. Learned AGA submits that there is no ground available to disbelief the testimony of P.W.-1 and P.W.-2. Learned AGA submits that the FIR, in the present case, was lodged promptly by P.W.-1 whereas the distance of police station from the place of occurrence is 10 miles. He further submits that the Investigating Officer and doctor, C.W.-1 and C.W.-2 respectively, supported the case of the prosecution and there were no contradictions in their testimony also. He submits that ocular evidence is supported by medical evidence and the weapons were recovered from the place of occurrence. Learned counsel for the State supported the view taken by the court below and submitted that having regard to the facts and circumstances, the trial court assessed them in proper perspective and delivered a reasoned judgment, which does not require interference of this Court.
11. Having heard the learned counsel for both the parties, we acknowledge that this case is a direct evidence case and based on statements of eye-witnesses which mandates us to observe statements of eye-witnesses for the disposal of case in hand.
12. A bare perusal of the evidence deposed by the complainant P.W.-1 Phoolwati, widow of the deceased Janak Singh, she lodged a written FIR at police station at 10.30 A.M. She stated that the FIR was scribed by a boy outside the police station and after that she has given her thumb impression thereon. The said written complaint was given to the Police Inspector in the police station Hathras Junction. She further stated that the said boy, who scribed the FIR, has not read over the contents of the said FIR to her. In her cross-examination, she stated that she dictated the FIR to the Station Officer, who was present at the police station. She further stated that entire FIR was dictated in the police station by Station Officer. So, there are material contradictions in the statement of the complainant P.W.-1 Smt. Phoolwati.
13. The Station Officer, Hathras Junction was also examined in this case as C.W.-1. He admitted that Exhibit Ka-1 i.e. FIR was presented at the police station in his presence and FIR registered was scribed by Head Moharrir Mohan Singh, which is Exhibit Ka-3. The extract of G.D. in this regard is Exhibit Ka-12, which was admitted into evidence without formal proof as formal proof was waived by the counsel for the accused. He was not asked in the cross-examination that whether he was participated in the dictation of the FIR i.e. Exhibit Ka-1.
14. Other court witnesse i.e. C.W.-2, Dr. V.D. Pathak admitted in his cross-examination that 14 injuries out of 15 were found on the person of the deceased are on the head region and 15th injury is on a corner of the back. These injuries cannot be caused by Hansiya. It is admitted fact that two accused were armed with Hansiya and others with Danda. Since Hansiya is a carved weapon it will first create the stab wound and then incised wound, therefore, the injuries sustained by the deceased are not caused from the Hansiya. Hansiya is a light weapon and cannot cause such serious injuries.
15. In the FIR Exhibit Ka-,1 the old enmity was alleged to be motive. The informant P.W.-1 corroborated with the contents made in the FIR. The witness P.W.-2 Dinesh, minor son of the deceased Janak Singh, also stated in the testimony that there was some previous enmity between the parties. It is an admitted position that all the accused except Ram Pal are from a particular caste and all are the neighbours. At the time of incident, the P.W.-2 was a student of class 7th and when the incident was taken place at about 9 or 9.30 A.M. he was in the school and there were no explanation about the fact that at the time of incident, P.W.-2 was in school, how he could seen the incident. It is also drawn our attention to the site plan Exhibit Ka-3 and argued that nowhere in the site plan, the place from where the witnesses saw the occurrence is indicated. There are no ante-mortem injuries on the body of the deceased Janak Singh and it is doubtful that the accused who was armed with Lathi participated in this matter.
16. From the account of eye-witnesses, postmortem report, we may observe that there are several different versions which substantially weaken the prosecution case.
17. After perusal of the entire injuries, the injuries sustained by the deceased were not caused by Hansiya or Lathi, as per the prosecution story. There are several contradictions in the statements of P.W.-1 and P.W.-2. The presence of P.W.-2 is also doubtful. Motive described as caste rivalry between the parties. In such a factual situation certainly motive may act as a double edged sword. Author of the FIR was also doubtful. As per testimony of P.W.-1 in the chief she has dictated the FIR and same was scribed by a boy and she only gave thumb impression on the FIR but in cross- examination she stated that FIR was dictated by S.O. in the police station.
18. The criminal justice must be above reproach. It is irrelevant whether the falsity lies in the statements of witnesses or the guilt of the accused. The investigative authority has authority to investigate in a fair manner and elicit truth at the cost of repetition.
19. Talking spot of the circumstances and deposition of prosecution witnesses in this case, it would be difficult to hold that the prosecution has laid the case on real circumstances and proved its case beyond reasonable doubt. We are not in agreement with the views drawn by the trial court while dealing with the matter. In our opinion, instead of dealing with the intrinsic merit of the evidence of witnesses, the court below has acted perversely. Once we arrive at the conclusion that we cannot lend credence to the genuineness of the FIR and the prosecution case, there is no need of further enquiry as assertion made by the prosecution is not proved beyond reasonable doubt. In the peculiar facts and circumstances of the case, definitely the benefit of doubt goes to the appellant-accused. Viewed in that angle, the judgment of the court below awarding conviction and sentence to the appellant-accused require to be set-aside.
20. In the result, the appeal stands allowed and the conviction and sentence awarded by the court below is set-aside. The appellant-accused stands acquitted from all the charges levelled against him. The appellant stated to be in jail, he may set at liberty forthwith, if not required in any other case.
Order Date :- 22.01.2019 Shekhar (Chandra Dhari Singh, J.) ( Govind Mathur, C.J.)