Allahabad High Court
Ujagar And 2 Others vs State Of U.P. on 30 May, 2024
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:100728-DB
AFR
Judgment Reserved on 01.04.2024
Judgment Delivered on 30.05.2024
Court No. 42
Case :- CRIMINAL APPEAL No. - 5696 of 2022
Appellant :- Ujagar And 2 Others
Respondent :- State of U.P.
Counsel for Appellant :- Rajeev Upadhyay, Vikas Singh
Counsel for Respondent :- G.A. G.P. Singh
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Mohd. Azhar Husain Idrisi,J.
(Delivered by Hon'ble Mohd. Azhar Husain Idrisi,J.)
1. The instant criminal appeal is directed against the judgment and order dated 24.05.2022, passed by the learned Additional Sessions Judge, Court No. 14, Bareilly, in Sessions Trial No. 1018 of 2012, arising out of case crime no. 242 of 2012 (State Vs. Ujagar and others), whereby each of the accused / appellant namely, Ujagar, Ram Prasad and Kalyan have been convicted under Section 302 I.P.C. and sentenced to life imprisonment and fine of Rs. 20,000/- and in default each of them had to serve additional simple imprisonment of six months.
2. The prosecution case proceeded on the basis of an application, under Section 156 (3) Cr.P.C. (Ext. Ka-1), moved by the first informant Roop Lal (PW- 1), Resident of village Bilauwa P.S. Faridpur, District- Bareilly, in the court of CJM, Bareilly, alleging therein that on 08.10.2011 at about 5.00 p.m. his co-villagers Ujagar, Kalyan and Ram Prashad called his son Rukampal from the house and took him away. At that time, his mother Smt. Bhagga and sister Kalawati were at the house. These people had stated that Rukampal is being taken for some work. Rukampal did not return to the house in the night. On 09.10.2011 in the morning he and other family members went to the house of Ujagar, Kalyan and Ram Prashad to inquire the whereabouts and location of Rukampal, but they did not give any satisfactory answer and equivocated. They queried/ inquired from co-villagers also. Thereafter at about 12.00 P.M. he was informed by the villagers that dead body of Rukampal is lying near Mulberry tree (Shahtoot) near village Nagariya. They rushed at the spot and identified the dead body of Rukampal, there were many injuries on his body. He (PW-1) immediately informed the Police Station, Faridpur. He (PW-1) was illiterate, police did not register his report. However, police launched inquest proceedings on 9.10.2011 at about 8.00 p.m. Inquest report is on record as Ext Ka- 11 and sent the corpse for autopsy. The post mortem was conducted on 10.10.2011 at 2.30 p.m. by Dr. S.C. Sundriyal (PW- 3). Duly proved, PMR is on record as Ext. Ka2.
3. Neither report of the informant was written, nor any action was taken by the police, against the accused persons. Hence, he gave an application to the Police Station Faridpur, Superintendent of Police (Rural) and Senior Superintendent of Police, Bareilly, but all in vain, no action was taken against the accused persons. The accused were roving around saying that Rukum Pal had opposed Ujagar in Pardhani elections, hence they killed him. On 08.10.2011 Kamlesh s/o Pothiram and Smt. Prema w/o Ganga Ram, had seen Rukampal with the accused persons. During conversation accused persons disclosed Prema that they had done Rukampal to death. Thus these accused have murdered his son Rukampal.
4. In view of the above, complainant Roop Lal moved an application (Ext Ka-1) under Section 156(3) Cr.P.C. for investigation of the matter, before the Chief Judicial Magistrate, Bareilly on 8.11.2011, Consequently, on the basis of the order passed on this application, FIR was registered on 24.4.2012, as case crime no. 242 of 2012, under Section 302 IPC, police station Faridpur, District Bareilly, against the accused persons. Needful entries were made in kaimi G.D., carbon copy is on record as Ext. Ka-5 and chik FIR Ext. Ka-3.
5. Initially, investigation was entrusted to S.I. Gajendra Singh Tyagi. In due course, he was transferred and another I.O. replaced him. I.O. has recorded the statement of witnesses under section 161 Cr.P.C, prepared site plans and arrested accused and later after due investigation, collecting credible and clinching evidence, showing the complicity of the accused appellants in the murder of Rukampal, S.S.F. P.N.Mishra, submitted charge sheet on 05.07.2012, under Section 302 IPC against the accused/ appellants namely Ujagar, Ram Prasad and Kalyan, in the court of Chief Judicial Magistrate, Bareilly.
6. Chief Judicial Magistrate, Bareilly took the cognizance of the case. Being exclusively triable by the court of Sessions, he committed it to Sessions, where it was registered as S.T. No. 1018 of 2012 and in the course of time Sessions Judge transmitted the same to the court of Additional Sessions Judge, Court No. 14 Bareilly, for trial.
7. The learned trial judge framed Charges against the accused Ujagar, Ram Prasad and Kalyan, under section 302 IPC. Accused abjured the charge, pleaded not guilty and claimed to be tried.
8. To bring the charge home, prosecution has adduced testimonies of following witnesses as ocular evidence:-
(i)- Pw-1 Roop Lal (complainant), (ii)- PW-2 Nanhe (village chaukidar), (iii)- PW-3 Dr. S.C. Sundriyal (Autopsy sergion), (iv)- PW-4 C- Shiv Kumar Singh, (v)- PW-5 Prema, (aunt of the deceased), (vi)- PW-6 S.I. Ganga Das Sagar (part I.O.), (vii)- PW-7 Kamlesh (independent witness), (viii)- PW-8 S.I. Gajendra Sinigh Tyagi (part I.O.), (ix)- Gajraj (witness of fact) and (x)- PW-10 C- Devi Dayal (formal witness).
9. Besides, the prosecution has also produced following documentary evidences:-
Sl. No. Particular of Documents Proved by Ext. Nos.
1.
Application u/s 156(3) Cr.P.C.
PW-1 Ext Ka-1
2. Post mortem Report PW-3 Ext Ka-2
3. Chik FIR PW-4 Ext Ka-3
4. Application to S. P. PW-
Ext Ka-4
5. Kaimi G. D. PW-4 Ext Ka-5
6. Sample Seal PW-6 Ext Ka-6
7. Challan Lash PW-6 Ext Ka-7
8. Photo Lash PW-6 Ext Ka-8
9. Request to R.I. PW-6 Ext Ka-9
10. Letter for CMO PW-6 Ext Ka-10
11. Inquest Report PW-10 Ext Ka-11
12. Charge sheet PW-4
-
10. On conclusion of the prosecution evidence, accused/appellants were confronted with the evidence led against them during trial, and recorded their statements under Section 313 Cr.P.C. wherein all the accused/ appellants denied the prosecution evidence and allegations against them. They stated and asserted that they have been falsely implicated on account of enmity and village partibandi. They had pleaded innocence. They did not adduce any defence witness.
11. Learned trial court after examining the testimony of the prosecution witnesses and other material on record, came to the conclusion that the accused/ appellant are guilty of committing the murder of Rukampal Singh and accordingly convicted them under section 302 IPC and sentenced for life imprisonment and fine with default clause, vide judgment and order dated 24.05.2022. Felt aggrieved, the appellants preferred the present appeal.
12. Heard learned counsel for the appellant Sri Rajeev Upadhyay and learned AGA for the State and Sri G.P. Singh, learned counsel for the informant. Perused the record.
13. Learned counsel for the accused/ appellants has urged that prosecution has not assigned to any of the appellants any specific role of causing fatal injuries to which deceased succumbed. There are material inconsistencies and discrepancies in the prosecution version. Some of the prosecution witnesses had made improvements in their deposition and had narrated the manner of incident in such a way, which cannot be perceived in ordinary course of diligence and prudence. The investigation was also done in a pedantic and lackadaisical manner with the oblique motive of implicating the accused appellants, on the undue pressure of complainant. No incriminating article has been recovered from any of the appellants or on their pointing. It creates prosecution story highly improbable, untrustworthy and dubious. There is no material from the side of the prosecution to evince that the accused appellants had harbored vengeance to eliminate Rukampal (now deceased). The presence of the prosecution witnesses at the place of occurrence has not been proved, hence their testimony is highly doubtful and incredulous and not really commends any acceptance. No tangible material is elicited from the evidence of the prosecution witnesses in cross examination by which their testimony was found to be highly doubtful and untrustworthy. The chain of evidence and circumstances is also not complete, so as to conclusively establish that the accused appellants are the actual perpetrator of dreadful crime of murder of Rukampal. The victim Rukampal was a man of felonious nature and was having to his credit so many antagonists. Some unknown persons were nurturing animus and grudge against him, they succeeded in their venomous and filthy design of liquidating him in the darkness of night. The appellants had no animus against the deceased Rukampal. It is also argued that the prosecution could not prove any motive against the accused/ appellants which actuated them to take such a drastic step. There is no independent and impartial witness to support the prosecution version. Many of them turned hostile. The evidence of some of them is not consistent with the hypothesis of the guilt of the accused/ appellants. There is general and omnibus allegation in the first information report. The charge sheet has also been submitted relying upon such evidence which is not even formally proved. There is not an iota of evidence pointing towards the guilt of the accused appellants. The trial court wrongly drew the inference that the appellants are the mastermind to commit the murder of Rukampal. The trial court has not analyzed and appreciated the evidence objectively and proper perspective. The prosecution has failed to prove its case beyond reasonable doubt. Therefore appeal deserve to be allowed.
14. Per contra, learned A.G.A. has submitted that there is no embellishment in the prosecution version. The victim died on account of inflicting of injuries on his person by the appellants. The entire incident has been narrated in a very intrinsic and natural way. It is a case of homicidal death. The murder has taken place in a planned manner. The prosecution witnesses had supported the case completely. Whosoever had turned hostile, is on account of undue pressure of the accused persons and his adherents. There is a chain of evidence to demonstrate that Rukampal was inflicted serious injuries on the vital part of body with gunshot in a fit of anger and ire, as a result of which he succumbed to injuries. The causing of injury on the vital part is sufficient to demonstrate that the accused appellants had already nurtured animus and grudge to eliminate the victim. The accused appellants are influential person and had good approach, on account of which FIR was not registered while on information, the police personnel had come at the spot. The inquest report was prepared by the police personnel after appointing witnesses of the inquest. The post mortem had also been done in presence of police personnel. The non-registration of first information report in such a gruesome and diabolical case by police personnel shows their utter recklessness and irresponsibility. In case there is any variation or omission in the examination, cross examination or examination in chief that will not destroy the entire prosecution version and will not absolve the accused /appellants from the charge.
15. Aforesaid rival submissions of the learned counsels of appellant as well as learned counsel for informant and A.G.A., has to be tested upon the touchstone of evidence adduced by the parties.
16. Elaborating his arguments, learned counsel for appellants, has urged that prosecution has failed to produce any independent witnesses and the witnesses produced are not trustworthy. They are interested and partisan witnesses. Hence, their evidence could not be relied upon. Learned A.G.A. opposed the contention.
17. The law relating to evaluation of relative, interested and partisan witnesses was considered elaborately by the Apex Court, in Dalip Singh and others V/s State of Punjab, AIR 1953 SC 364, wherein the testimonies of the two women witnesses were impeached on the ground that they were close relatives of the deceased. the Hon'ble Apex Court observed that ordinarily a close relative would not spare the real culprit who has caused the death and implicate an innocent person. His/ her evidence can only be discarded when it is established that the witnesses has a cause, due to enmity to implicate him falsely. Dalip Singh (supra) has been followed and reiterated in a series of the cases. A reference may also be made Piara Singh V/s State of Punjab (1977) 4 SCC 452, Kamta Yadav vs. State of Bihar (2016) 16 SCC 164 and Nand Kumar vs. State of Chhatisgarh (2015) 1 SCC 776.
18. In Hari Obula Reddy V/s state of A.P. (1981) 3 SCC 675, the Apex Court observed as under :-
13.........it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
19 Again in S. Sudershan Reddy and others Vs. State of A.P. (2006) 10 SCC 163, the Hon'ble Apex Court has held that :-
"12. .....Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an 22 of 24 innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible.
15. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses."
20. Thus, we find unbroken line of authorities to the effect that the evidence of eye-witness, if found forceful, can not be discarded simply because witness is a relative of the deceased. The only caveat is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. Thus, close scrutiny of testimony of eye-witness is required, to reach the conclusion that they have seen the incident, in question.
21. Learned counsel for the appellant has submitted that present case is based on circumstantial evidence and plea of last seen. So far as 'last seen' segment of the occurrence goes, as per prosecution case, on 08.10.2011 at about 5 o' clock appellants Ujagar, Kalyan and Ram Prasad, resident of bilauwa had called the son of the complainant Rukampal from his house on the pretext of some work and taken him away. At that time, mother (Smt. Bhagga) and sister (Kalwati) of the deceased Rukampal,were present in the house. The prosecution has examined three witnesses regarding last seen. PW- 1 Roop Lal, is the father of the deceased, PW-2 Nannhe claimed to be independent witness, PW- 5 Smt. Prema wife of Ganga Ram, who is the brother of complainant and aunt of the deceased Rukam Pal and further she is sister in law of PW-1 Roop Lal, PW- 7 Kamlesh is the cousin of the complainant, PW- 9 Gajraj claimed to be independent witness of fact. They are also claimed to be witnesses of facts. The argument is that PW-1 Roop Lal and PW-5 Smt. Prema and PW-7 Kamlesh are close relatives of the deceased. Their testimonies are not credible.
22. P.W-1 Rooplal is the father of the deceased. He no where in his statement acceded that in his presence appellants came to his house and took away his son Rukampal. Rather, in his cross examination, he has admitted that, at that time he was not present at his house. He was at some other place and out of his house. The other persons, mother (Smt. Bhagga) and sister (Kalawati) of the deceased, who are said to be present at that time in the house, have not been examined by the prosecution. PW- 2 Nanhe, who is village chaukidar and who informed the occurrence to police station, has also not averred that on the day of occurrence he saw Rukampal going with the appellant. PW-5 Prema Devi, who is the aunt of the deceased has deposed that she was at her home at the time of occurrence. She turned hostile by saying that in her presence no one called Rukampal and took him from his house. PW-7 Kamlesh, who is the cousin of complainant and who was in constant touch with the complainant has also disowned his presence at the time of happening of incident. PW-9 Girja Shanker has also acceded that he has not seen the incident or appellants coming to the house of the deceased Rukampal and took him away for some work. Thus the prosecution has failed to prove the genesis of the incident. PW- 1 complainant, PW- 2 Nanhe, PW- 5 Prema Devi, PW- 7 and PW- 9 are not the eye witnesses, nor have seen the appellant taking away the deceased from his house at 5.00 P.M. on the day of occurrence. PW- 5 Smt. Prema, PW-7 Kamlesh and PW-9 Girija Shankar has turned hostile and nothing could be elicited from them supporting prosecution case. Besides, as discussed above, PW- 1, PW- 5, PW- 7 are related to the deceased in one way or the other. So, their evidence is not credible and worthy of reliability in the absence of corroboration. Rest of the witnesses are formal, their evidence has to be minutely scrutinized. The deposition of all the witnesses of fact, mentioned above, would reveal that prosecution has failed to prove by any cognate and credible evidence the last seen part of the prosecution case. Anyway, only last seen evidence cannot form the basis for conviction. Thus prosecution has failed to prove its last seen story.
23. So far the second segment of the prosecution case, i.e. participation of the appellant in murdering the Rukampal and other relevant facts goes, it will be pertinent to describe relevant prosecution evidence in this behalf.
(1)- PW-1 complainant Roop Lal, has deposed that about five years ago, the accused persons namely Ujagar, Kalyan and Ram Prasad called to his son Rukampal and took him away for some work. At that moment, his daughter Kalawati and his wife Bhagga Devi, were present in the house. When Rukampal did not come back at night, he along with other members of the family went at the residence of the accused persons on the next morning, to inquire about his where about. The accused persons equivocated and avoided talking about the where about of his son Rukampal. They enquired from the native villagers also and came to know at about 12 o'clock, that the corpse of Rukampal was lying near a Mulberry (Shahtoot) tree near Nagariya. He reached at the place stated by the informers in Nagariya, he saw the corpse of his son Rukampal. There were multiple injuries on his person. There was a gunshot wound on the backbone. He informed to the police station concerned, about the incident. The police personnel came on the spot and launched inquest of the dead body and after preparing relevant documents sealed the dead body and handed over to police constables to deliver it to the district hospital for autopsy. Since the complainant was highly nervous and upset, he could not take notice whether the first information report was lodged at the police station or not. When the accused persons were roaming undauntedly and were extending threats to him, he raked up his grievance by submitting application before the higher police authorities. The accused persons were murmuring and buzzing in the village that Rukampal had been done to death on account of being in opposition to Ujagar in the pradhani election. On the fateful day of occurrence, Kamlesh s/o Pothiram and Prema Devi w/o Ganga Ram had seen Rukampal going in the company with accused persons. The first information report with respect to the said incident was registered pursuant to the order of the court. He proved his thumb impression on the application given by him in the court of CJM. He duly proved the application, as Ext.Ka.1. Thereafter the Station Officer concerned recorded the statement of the complainant. The complainant went to the spot of inspection done by the investigating officer concerned.
(1-a)- During cross examination, PW-1 averred that he had two brothers. One of them have died and the second is Ganga Ram, whose wife is Prema Devi. Prema Devi is his sister-in-law. The complainant was well familiar with Kamlesh s/o Pothi Ram, Vimlesh, as well as Chheda Lal. They are his cousins. Those persons were in contact with him, because of their living in the same locality. Deceased Rukampal was married to Geeta. She had gone to her parental house, before fifteen days of the occurrence. There were amicable and cordial relation between Rukampal and his wife. Geeta had immediately come to her in-laws on getting the information with respect to murder of her husband. The deceased Rukampal was neither fond of gambling nor drinking. It was disclosed by the complainant that there was a criminal case against Rukampal launched by Nanhe Lal. The wife of complainant was burnt three /four days before the incident on account on pushing of chirag (lamp) with the tail of bullock, but she did not lodge any report with respect to demand of dowry against the deceased. He had seen that his son Rukampal was called and taken away by the accused person at about 5.00 p.m. The complainant went at the house of the accused again and again, at about 6.00 p.m., 7.30 p.m. and 9.30 p.m., but they did not meet. He had enquired from their family members also, however, he added that they met on that very day at 9.30 p.m. at their residences, they avoided to meet him, showing their non-presence. Jagat's mother told him about laying of the dead body of the Rukam Pal in the Jungle. Jagat's mother has expired. He came to learn about the dead body at about 12.00 o'clock next day. He acceded that I.O. has correctly recorded his statement about his going to the field on 08.10.2011 and returning to home at 5.00 p.m. After registration of the first information report, the station officer concerned recorded his statement. Later he acceded that his statement was recorded on 8.10.2011. He reached at the place where the corpse of Rukampal was lying at about one o' clock, there was a gathering of villagers including Chheda Lal, Chandra Pal, Mihilal, Gajram etc. The distance of place, where the corpse of Rukampal was lying from his house, is about half kilometer. He, along with the chaukidar of the village, reached at the police station at about 1.00 o' clock and informed about the incident and the dead body, thereafter returned back to the dead body. The police had reached at the house of complainant at about nine o' clock. The dead body of Rukampal was lying in the field till the arrival of police personnel. The panchayat nama was conducted after bringing the corpse on the road. The police personnel did not make any enquiry from the complainant and took away the dead body of Rukampal. Ujagar Lal and Natthoo Pradhan did not come at the place where the corpse of Rukampal was lying. The corpse of Rukampal was handed over to the complainant after autopsy. The first information report was registered pursuant to the order of the learned Magistrate. The complainant had heard about the murder of his son Rukampal committed by Ujagar Lal, Kalyan and Ram Prasad after six or seven days. The complainant had confirmed that the dead body of Rukampal was lying in the field near (Mulberry tree) Shahtoot. He had seen the dead body of the Rukampal. His body was turned. There was a gunshot injury on the back of neck. The inquest report was prepared by the police within fifteen minutes. When the police personnel took the dead body of Rukampal at the police station, the complainant had also joined them. Natthoo Pradhan did not join him. The station officer concerned had recorded the statement of the complainant and witnesses at the police station concerned. There has not been any litigation between complainant and the accused persons barring this case. There has been some quarrel between the complainant and the accused persons at the time of election. It was also stated by him that the brother of Vijendra namely Brij Lal was done to death. The first information report was lodged by Vijendra naming to the complainant (Roop Lal), Prem Pal, Chandra Pal and Suresh in the murder of Brij Lal. The complainant was sent to jail in the said murder. Munni Devi w/o Sannoo had got a first information report registered against Rukampal under section 325 IPC.
(2)- Prosecution has examined PW-2 Nanhe, who stated that he was discharging the duty of Chawkidar on 9.10.2011. On that day he got an information at about 4.30 p.m. that the corpse of Rukampal was lying in the field of Bhagwan Das. The victim used to drink liquor occasionally. He had seen the corpse of Rukampal. He, in association with P.W.1 Roop Lal and others had gone at the police station concerned. The station officer had prepared the inquest and recorded his statement. It was stated by Nande P.W.2 that he had been discharging the duty of Chawkidar for the last twenty years. He was well conversant with Rukampal.
(2-a)- In his cross examination PW-2, divulged that Rukampal used to drink liquor but had never quarreled in intoxication. He had got information about the dead body of Rukampal at about 4.30 p.m. from the murmuring and buzzing in the village. When he reached at the place of occurrence,there was a gathering of his village folk and also people of Nagaria. The family members of Rukampal were also present there. He does not remember that the accused persons were present at the spot or not. He had informed to the Station Officer concerned on telephone . At the behest of Station Officer concerned, he reached at the police station in the company of family members of deceased Rukampal. In addition to oral information, written information was also given by Roop Lal at the police station. Roop Lal did not mention name of any accused in the written information. He did not come to know about the assailants of Rukamlal in the murmuring of village folk. It was not within his knowledge that there was any quarrel between Ujagar and the family members of Rukampal.
(3)- In corroboration of occurrence and oral evidence, prosecution has also examined P.W.3 Dr. S.C.Sundriyal, who has deposed that during his posting as Sr. Consultant Eye Surgeon, District Hospital Bareilly on 10.10.2011, he was on post mortem duty. He had conducted post mortem of Rukampal, whose corpse was brought by C.P. Devi Dayal and C.P. Rajeev Kumar, Police Station Faridpur, in a sealed cover with requisite papers. He had tallied the seal. The constables identified the dead body of the deceased Rukampal and after being satisfied, conducted the post mortem of Rukampal at 2.30 p.m.on 10.10.2011 and prepared post-mortem report in his handwriting and signature. He proved P.M. R. as Ext. Ka- 2 .
(3-a). As per PW- 3 Dr. Sundriyal, he noticed following facts about the corps of Rukampal during autopsy;-
(I)- internal examination: Dr. noted fracture of cervical vertebrate, membrances congested,,brain congested , base fractured, spinal cord opened, ,left and right lung congested, pericardium congested, heart right full , left empty wt. 180 gm. Small and large intestines empty congested, gall bladder full, liver congested ,spleen congested, kidney congested.
(II)- External Examination: rigor morti was absent from both extremities.
(III)- Ante-mortem Injuries; A fire arm wound of entry about 3 cm x 3 cm on the posterior aspect of root of neck in line with scapula muscle uper border, in middle region of margins of wound inverted and lacerated. Blackening seen,11 pieces of metallic and a plastic wad recovered from the body.
(IV)- Doctor opined that the Cause of Death was due to coma as a result of ante mortem fire arm injury. Organs/ Viscera was preserved for chemical examination. Death of deceased is possible to happen on 08.10.2011 after 5.00 o' clock by fire-arm.
(V)- Pw- 3 Dr. Sundriyal has further stated that the metallic pieces and plastic wad were sealed by him and returned to police personnel.
(4). The prosecution has also examined, PW-4, C.P. 1244 Sheo Kumar Singh. He stated that, at that time he was posted as Constable Clerk at Police Station Faridpur District Bareilly. Pursuant to the order of Chief Judicial Magistrate Bareilly, passed on the application under section 156 (3) Cr.P.C. he had registered case crime No. 242/12 under section 302 IPC against Ujagar and others and necessary enteries were made in kaimi GD no. 38 at about 20.30. Original GD was destroyed ,the carbon copy of GD which was prepared in the same process with original marked as Ext.Ka.5, which is on record. Entries were also entered and the chik FIR (Ext.Ka.3) was prepared . The copy of the order passed by the Chief Judicial Magistrate Bareilly was received on 24.4.2012 by Dak.
(4-a)- In his cross-examination the PW-4 has divulged that at the time of registration of the first information report, the complainant was not present at the police station. Investigating officer S.S.I., P.N.Mishra has expired. He was posted with him, he is aware of his hand writing. S.I. P.N.Mishra had taken over the charge of investigation of this case after transfer of erstwhile investigating officer Gavendra Mishra. The witnesses of inquest namely Gauram;, Mihilal, Ganga Ram ,Krishna Pal and Tikaram were entered in the Parcha No. 5 on 25.5.2012. He had also entered the description of affidavits given by Roop Lal, Vimlesh Dutta Sharma,Kamlesh, Chheta Lal etc. in the C.D. The name of complainant Rooplal, and the witnesses Smt. Prema, Kamlesh, Vimlesh and Chheda Lal were entered in the case diary. The site plan was prepared on the pointing of the complainant Roop Lal. The site plan and charge sheet were prepared by S.S.I., P.N.Mishra, whose writing and signature were identified by him. He had given detail of investigation in Parcha no.11. On the basis of material collected during investigation, charge sheet was submitted against the accused Ujagar, Kalyan and Ram Prasad under section 302 IPC. However, site plan paper no. 7Ka and charge sheet paper no. 6Ka has not been formally given any Ext. Number. However, he verified the investigation done by S. S. I., P. N. Mishra as secondary evidence.
(5)- P.W.5 Smt. Prema, is the wife of Ganga Ram and aunt of the deceased Rukampal. She stated on oath that 6-7 years ago, she was present at her house. Nobody had called to Rukampal in her presence in the house. She came to know in the morning that Rukampal had been done to death. The people of the locality had gone to see him. She disowned the paper no.16Ka/13 kept in the record in the shape of affidavit dated 28.5.2012. Prosecution has declared her hostile. She did not support the prosecution case rather denied her statement recorded under section `161 Cr.P.C.
(6). The prosecution has also examined P.W.6 S.I.Ganga Sagar. He stated on oath that he was posted at Bareilly as Sub-inspector on 9.10.2011. On the fateful day, on the information given by Nannhe (Chawkidar) he along with HM constable Devi Lal and Rajeev Kumar reached at the place of occurrence. He saw the corpse of Rukampal s/o Roop Lal lying in the field of Bhagwan Das. He conducted the inquest of the corpse of Rukampal. He had prepared the papers in relation to Panchnama namely . Specimen of seal Ext. Ka- 6, Challan Lash Ext. Ka- 7, Photo Lash Ext. Ka- 8, report to R.I. Ext. Ka- 9, request to CMO Ext. Ka- 10. Prepared inquest report in his writing and signature. Signature of the witnesses of inquest were obtained on the panchayatnama and proved it as Ext.Ka.11.
(7)- The prosecution further examined Kamlesh as P.W.7. He stated on oath that the said incident had taken place about quarter to eight years before. The corpse of Rukampal was lying in the east of Nagariya village , near the tree of mulberry. He had gone and seen the corpse of Rukampal. He had come to know that Rukampal was done to death. He is not an educated person. He identified and proved his thumb impression on paper no. 16Ka/5 but disowned his presence at the time of happening of incident. Prosecution has declared him, hostile and cross examined him.
(7-a) PW-7 in his cross examination did not support prosecution. He disowned his statement recorded under section 161 Cr.P.C. that on 08.10.2011 he have seen at five o' clock in the morning Rukampal going with Ujagar, Kalyan and Ram Prasad out of village and on that night Rukampal did not return home, next day his dead body was found in the field of village. He also denied furnishing of any affidavit to the police personnel.
(8)- P.W.-8 S.I. Gajendra Singh Tyagi has deposed that on 24.4.2012 he was posted as sub-inspector at Police station Faridpur District Bareilly. On that day, he was entrusted with the investigation of aforesaid case. He had entered in parcha no.1 the application moved under section 156 (3) Cr.P.C. He entered the order of the Judicial Magistrate Bareilly in the G.D. He received the copy of Panchayatnama from the police station concerned. He recorded the statement of scribe of F.I.R. On 26.4.2012, he recorded the statement of complainant vide parcha no.11.Subsequent thereto, he was transferred. The investigation was entrusted to someone else. The panchayatnama and post mortem report of the deceased, on the direction of Dy. Inspector General was consigned to record, by Sub-inspector Ganga Das Sagar. He disproved the paper no. 14Ka/2. S.I. Ganga Das Sagar had submitted the panchayatnama and post mortem report on the score that the deceased Rukampal had committed suicide. He had not recorded the statement of Ganga Sagar during investigation.
(9)- P.W.9 Gajraj on 24.9.2019 stated that the corpse of Rukampal was lying in the field. He could not remember the date. Panchayatnama was prepared in his presence and his signature was obtained on the report alongwith other witnesses. He proved the preparation of panchayatnama (Ext Ka-11). On the suggestions of the witnesses of inquest, post mortem was done in order to know real cause of death. In his cross examination he has stated that the dead body of the deceased Rukumapal was recovered near shrub at village Nagariya. The body was recovered at about half-a-km from the village of the deceased. He proved his presence at the time of preparation of panchyatnama as well as recovery of corpse of Rukampal in village Nagariya in the shrub. The corpse of Rukampal was seen by the people of village Nagariya and on their information, the people of his village came to know about the death of Rukampal. When he reached near the corpse of Rukampal, a number of people were already present there. The police personnel were not present there. The police personnel had come after 1 or 1.5 hours later. He did not confirm who had informed to police personnel. The father of Rukampal and other persons were present in the vicinity of corpse.
(10)- To substantiate the charge levelled against the accused the prosecution has examined P.W.10 constable Devi Dayal. He stated on oath that on 9.10.2011 he was posted as Constable at Police Station Faridpur. On the fateful day from 8 o'clock to 10 o'clock ,the inquest of Rukampal was conducted . The panchayatnama was duly signed by all the witnesses after completing the necessary formalities. The signatures of P.W.10 Devi Dayal and Rajeev Kumar were also obtained on the same which is marked as Ext.Ka.11. After completion of necessary formalities, the corpse of Rukampal was handed over to him and Balajeet Kumar for carrying it to the mortuary.
(10-a). In his cross examination, P.W.10 C-Devi Dayal could not ascertain as to whether the father of the deceased Rukampal was present at the moment of preparing panchayatnama, as he could not identify him. The panchayatnama of deceased Rukampal was done on the intimation of Chawkidar Nanhe. The station officer concerned had called to the father of deceased Rukampal while filing up the Panchayatnama but he was not there. He has stated that there was no person of the locality, except the witnesses of Panchayatnama present, while carrying out the formalities of inquest. He confirmed that there were injuries on the person of deceased Rukampal.
24. On receiving the information that the dead body of Rukampal is lying near mulberry tree (shahtoot) situated near the village Nagariya, they reached there and witnessed dead body of Rukampal lying there in the field of Bhagwan Das. PW-2 Nannhe informed to the police station concerned. Police personnel reached there and completed formalities regarding the corpse of the Rukampal. Rest of the witnesses PW- 2 Nanhe, PW- 3 Dr. Sundryal, PW- 4 constable Shiv Kumar, is chik and G.D. writer, PW- 6 S.I. Ganga Sagar prepared formal papers for autopsy, PW-8 S.I. Gajendra is part I.O., PW-9 Gajraj is witness of inquest witness and PW-10 constable retired Devi Dyal is also the witness of inquest, are the formal witnesses. They have proved various papers relating to prosecution and autopsy surgeon or part I.O. None of them has deposed that, they have seen appellants taking away the deceased and they have seen them on the very day of the incident. The formal witnesses tried to support prosecution but discrepancies in their statements are glaring on the record are highly fatal to the prosecution case showing involvement of the appellant in the commission of the crime. None of them attributed any overt act to any of the appellants. Learned counsel for the appellant has urged that there is no independent and impartial witness to support the prosecution version. Pw- 1 Rooplal, is the father, while Pw- 5 Prema is the aunt of the deceased Rukampal and PW- 7 Kamlesh is the cousin of complainant, who was well in touch with him, as he was living in the same locality. These are claimed to be eye witnesses and the witness of facts, but they are related and interested witnesses. Therefore, as discussed above their testimony is not reliable.
25. Learned counsel for the appellants submitted that the present case hinges upon the circumstantial evidence, coupled with the plea of last seen. There is no eye witness account. None of the witnesses has seen appellants committing the gruesome murder of the Rukampal. Therefore it is apposite to bear in mind the settled legal proposition about the quality of evidence required for recording a finding of guilt against the accused persons in view of circumstantial evidence.
26. In most celebrated case, Sharad Birdhi Chand Sarda v. State of Maharashtra, (1984) 4 SCC 116, in para 153 (of the judgment), the Apex Court, have postulated five golden principles regarding the appreciation of circumstantial evidence. Whenever the case is based on circumstantial evidence the following principles are required to be complied with to convict the accused:-
"(i)- The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;
(ii)- 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;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent innocence of the accused and must show that in all human probability the act must have been done by the accused."
27. It is also a settled proposition of law that suspicion, howsoever strong, cannot take the character of proof.
28. Thus, in a case of circumstantial evidence each and every circumstance has to be proved by independent and cogent evidence. Each circumstance must be connected with each other as to complete the chain of event. Learned counsel for the appellants contended that in the present case chain of circumstances is broken at several places. The allegations against the appellant taking away Rukampal on the day of incident, could not be proved. None of the circumstance in the present matter have been independently proved and there is failure to establish a complete chain of circumstances by prosecution. Learned A.G.A. has refuted the argument and argued that it is a case of homicidal death. The victim died on account of inflicting injuries on his person by appellants. The murder had taken place in a planned way. It was a gruesome murder by causing serious injuries on the vital part of his body. The entire incident has been narrated in a very intrinsic manner. Although some of the witnesses turned hostile, but it may be remembered that appellants are influential persons. They took them under their pressure. Resultantly they turned hostile.
29. Scrutinizing the prosecution evidence in the aforesaid backdrop of legal scenario, it transpires that none of the prosecution witnesses has proved the fact that they have seen appellants calling and taking away the deceased from his house. Thus the very genesis of prosecution case has not been proved, which destroyed the very edifice of the prosecution case. The deceased was last seen with the appellants has also not been proved. It may be mentioned that there is no eye witness account of murdering the Rukampal by appellants. Verily, there is no prosecution witness who has seen appellant killing the deceased. Prosecution has not attributed any specific role to any of the appellants, in authoring the crime. No weapon of assault has been recovered from any of the appellants or on his pointing. In these circumstances the argument of learned counsel for the complainant regarding gruesome nature of the murder of the deceased cannot take the place of proof, thus deceased was done to death by the appellants does not inspire confidence. Similarly, the argument of learned A.G.A that witnesses turned hostile under the influence and pressure of the appellants is also not sustainable.
30. Learned AGA has argued that Rukampal was murdered gruesomely and this statement find support from the medical evidence, inquest report Ext. Ka- 11 and post mortem report Ka- 2. There was gun shot injury on the person of the deceased. There was a fracture of cervical vertebrate, membranes congested, brain congested, base fractured, spinal cord opened, left and right lung congested, pericardium congested, heart right full, left empty wt. 180 gm. Small and large intestines empty congested, gall bladder full, liver congested, spleen congested, kidney congested. Thus the deceased was murdered in a barbarous and ruthless manner, but as discussed above mere heinous and gruesome crime is not enough to punish appellant. Suspicion howsoever, strong it may be, cannot take place of legal proof. Prosecution has miserably failed to furnish satisfactory explanations about the serious infirmities, inconsistencies and contradiction in the prosecution case.
31. In the present case, the incident occurred on 08.10.2011 at about 5.00 P.M. the information about the dead body of Rukampal lying in the field of Bhgwandas nearby a mulberry tree, near the village Nagariya, to the witnesses of prosecution. PW-1 complainant, PW-5 Smt. Prema PW-7 Kamlesh and PW-9 Ganga Sagar also reached there and saw the dead body of the deceased Rukampal. According to PW-1 Roop Lal, who is the father of the deceased, he received the information on 09.10.2011 at about 01.00 p.m. from one mother of the Jagat. While PW-2 Nannhe (the village Chaukidar) stated that he got the information regarding lying of the dead body of the deceased Rukampal near mulberry tree at the Nagriya and informed PS concerned. He was directed to reach the PS by the police personnel along-with complainant at 04:30 p.m. He , in association with Rooplal had gone to the police station. Police reached at the place and conducted inquest and send the body for autopsy and that time there were many people including Informant Rooplal were present at the spot. He had received the information from the murmuring and buzzing in the village. According to PW- 2 he got the information on the murmuring and buzzing in the village at about 12:30 PM. Later he improved his statement by saying that he received the information from the mother of Jagat at about 12:00 P.M. In this gap of about 4.30 hours where was the complainant and what he was doing, it was not explained by the prosecution. These inconsistencies and contradiction goes to the root of the prosecution case. Thus, one of the witnesses is stating that he received information out of buzzing and murmuring of the people. Strongly, staying in the village the complainant could not know about the place where of dead body of Rukampal was found. This is highly improbable. Be that as it may, none of the prosecution witnesses have seen either of the appellants committing the murder of Rukampal.
32. It is also urged by the learned counsel for the appellant that the prosecution could not prove any motive against the accused appellants which actuated them to take such a drastic step. It is a trite law that in the case of direct evidence, the motive looses its significance. If the evidence of the eye-witness is trustworthy, there is no need to establish any motive. Since prosecution has failed to prove any role of the appellants in the incident, it is said that motive lies in the heart of the accused and if accused is falsely implicated this fact will also be within the knowledge of the complainant Rooplal, as to why he had implicated appellants and had roped them falsely in the present case. Learned counsel for the appellant has submitted that prosecution has failed to prove the motive behind the incident, which actuated accused appellant for committing such a brutal incident. In a case of circumstantial evidence motive occupies importance. As per prosecution case accused were roving by stating that Rukampal has opposed Ujagar in Pradhani election so he killed him but the same has not been proved by any credible evidence. However, the complainant in his application u/s 156(3) Ext. Ka- 1 has stated that after the incident appellant were roving and stating that Rukampal has opposed Ujagar in Pradhani Election hence, he killed him but prosecution has not proved this fact. So prosecution has failed to prove any motive against the appellant. There were some other statements of witnesses that there were some criminal cases instituted by both the parties against each other, but no evidence is on record in this respect also. In the absence of any proved motive there is no reason as to why the appellants would kill Rukampal.
33. So far recovery of the dead body of the deceased is concerned it was stated to be found about half a km away from the house of the deceased, near a mulberry (Shahtoot) tree, situated near village Nagariya on 09.10.2011 at about 12.00 o' clock. Pw- 1 complainant has deposed that he was informed by the villagers about the dead body lying at the place near village Nagariya. On being specifically questioned as to who furnished this information to him, he stated that mother of Jagat Pal has given this information to him. Mother of Jagat Pal has already expired. Yet another version about the source of information has been disclosed by PW- 1 complainant Rooplal and PW- 2 Nanhe (the village chaukidar). Pw- 2 stated that he received the information about the dead body at about 4.30 P.M. Then he reached at the place where the dead body was lying, thereafter PW- 1 Roop Lal and PW- 2 Nanhe went to police station and informed about the dead body of Rukampal. In this respect as per prosecution case the complainant was in search of missing Rukampal. One of the lady, the mother of Jagat, had informed him, but prosecution has not examined the so called lady mother of Jagat. On the other hand, Pw- 2 Nannhe the village chaukidar in his testimony stated that he got information at about 4.30 P.m. on 09.10.2011 that corpse of Rukampal was lying in the field of Bhagwan Das. On this information, He had informed to the station officer concerned on telephone. Leaving the dead body at the place where it was found, both of them had gone to police station concerned. He further stated that he had got information on the murmuring and buzzing in the village and when he reached at the place of occurrence, there was a gathering of village people and villagers of Nagariya. The family members of Rukampal were also present there. Thus, the evidence about the source of information as to who and how complainant came to know about the place where the dead body was found is contradictory. There is material contradiction and inconsistencies in the statement of PW- 1 and -PW 2 in this respect. According to PW- 2 he got the information on the murmuring and buzzing in the village at about 12.30 PM. Later he improved his statement by saying that he received the information from the mother of Jagat at about 12.00 P.M. In this gap of about 4.30 hours where was the complainant and what he was doing, it was not explained by the prosecution. These inconsistencies and contradiction goes to the root of the prosecution case.
34. There is no eye witness account of the fact appellants committing murder of the Rukampal. PW- 1 Roop Lal and all other prosecution witnesses of facts has only visited the place and dead body, where it was found lying i.e. near mulberry tree in the vicinity of Nagariya. They have also seen the condition of the body and the manner in which the crime was committed. PW-5 Smt. Prema has turned hostile. She is wife of the younger brother of the deceased Ganga Ram and aunt of the deceased. PW- 7 Kamlesh claimed to be independent witness. In his deposition, he has stated that he has not seen, deceased Rukampal going with the appellants on 08.10.2011 at 5.00 P.M. however, he saw the dead body of the deceased Rukampal, on 09.10.2011, but he has not seen occurrence. Similarly PW- 9 Gajraj has also not seen any culprit murdering Rukampal. He simply stated that he is the witness of Punchnama Ext. Ka- 11. He only witnessed the dead body of the deceased. Thus, this witness also do not throw any light about the murder, murderer or the manner in which the crime was committed and deceased was done to death by appellants.
35. From the facts and the circumstances of the case it emanates that the crime has been committed in a very brutal and diabolical manner shaking the conscience and heart of public at large. Multiple injuries were inflicted on the vital part of the victim with an intent to eliminate him. Thus, the victim Rukampal has been killed in a barbarous and ruthless manner. The nature of injuries inflicted on the person of the victim unleashed a reign of terror in the locality illustrating inhuman and barbarous slay of Rukampal. The circumstances were compatible with the innocence of the accused appellants as the witnesses of fact as well as witnesses of court did not support the prosecution version. No prosecution witness of facts has supported prosecution case. In fact they were not eye witness account. For the sake of argument if their testimony is accepted, this by itself will not lead to inference that it was accused appellant who has committed the said crime. There must be something more establishing connectivity between the accused and the crime. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis except that of the guilt of accused appellants.
36. Every criminal trial is a voyage of discovery in which truth is the quest. A duty is cast on the Presiding Officer to explore every avenue in order to discover the truth and advance the cause of justice. The learned trial judge has not analyzed the evidence on record in correct and right perspective. The learned trial Judge has passed the order of conviction and sentence on a fragile and feeble evidence. This Court is not in agreement with the view taken by the learned trial judge. The circumstances indicating the complicity of accused appellants be compared with the role of the accused appellants in the commission of the said crime. Accordingly, the judgment and order passed by the learned Special Judge may be sustained or upheld.
37. Learned counsel for appellant has argued that the first information report has been lodged after one month pursuant to the order of learned Magistrate passed on the application under section 156 (3) Cr.P.C. There is no convincing and credible explanation covering the delay. The name of the accused appellants surfaced after much consultation and deliberation. There is material laches in the investigation which has been done in a very pedantic and lackadaisical manner. The learned trial judge had cited a catena of decisions to buttress his verdict which are on different set of facts and circumstances and cannot be a basis for conviction. The prosecution has completely failed to prove the guilt beyond reasonable doubts against the accused appellants. The discrepancies in the evidence on the record are highly fatal to the prosecution case showing involvement of the accused appellants in the commission of crime, as no overt act has been attributed to any of the appellants. Thus, the appeal may be allowed and the accused appellants may be set at liberty.
38. Learned counsel for the appellants has argued that prosecution has not produced some of the central witnesses e.g. mother Smt. Bhagga and sister Kalawati and some other witnesses. In this respect it may be mentioned that court is not required to insist on plurality of witnesses in proof of any facts, it will be directly encouraging subornation of witnesses, if the situation and circumstance do arise that there is only a single person available to give evidence in support of the prosecution version, the court naturally has to weigh it carefully and cautiously such a testimony and if the court is satisfied that the evidence is trustworthy, reliable and free from all taints and flaws, then a duty is cast upon the court to act upon such testimony. In case the witnesses are not found to be reliable and there are some circumstances which may show that credibility is shaken by adverse circumstance, then the court will not insist upon such evidence. It is a platitude to elaborate here that it is the quality and not the plurality of witnesses who are required to prove the testimony. The dispensation of justice would be affected and hampered if number of witnesses are to be insisted upon.
39. Learned counsel for the appellants has stated that appellants were falsely implicated due to village partibandi. The evidence transpires that Ujagar fought election against deceased, the appellants in their statement under Section 313 Cr.P.C. has taken the same plea. However, the complainant has denied any enmity with the deceased. It is well known that enmity is a double edged weapon. It may be the actual reason for the incident and it may also be the basis of false implication. So it will depend upon the facts and circumstances of each case whether accused appellants were falsely implicated due to enmity. The defence has not adduced any evidence about the enmity with the deceased nor the complainant has established any such kind of enmity which could have resulted in to the murder of complainant son Rukampal.
40. Learned trial judge misread and mis-appreciated the entire evidence in convicting and sentencing the accused appellants under section 302 IPC. The circumstances from which the conclusion of guilt is to be drawn is not fully established. The prosecution has failed to show that in all human probability, the act must have been done by the accused appellants only. The conviction and sentence awarded to the appellants under section 302 IPC is not sustainable and the impugned judgment and order dated 24.5.2022 may be quashed and the accused/ appellants may be set at liberty. The witnesses of fact does not form a chain pointing towards the guilt of the accused appellants. The chain of circumstances are broken at several places. The allegation against the appellants taking away Rukampal on the day of incident, could not be proved. None of the circumstances in the present matter have been independently proved and there is failure to complete the chain of circumstances.
41. The non-examination of any witness who was illustrated in the list of charge sheet will not destroy the prosecution version in entirety. On appreciation of evidence, unless it is shown that a particular accused caused these injuries, no-one can be held responsible and guilty. Mere heinous and gruesome crime is not enough to punish the accused. Suspicion however, strong it may be, can not take place of legal proof. There is no satisfactory explanation about the serious infirmities, inconsistencies and contradictions in the prosecution case.
42. In the light of prolix and verbose discussion of evidence made herein above and also regard being had to the entire facts and circumstances of the case, we are of the opinion that the prosecution has completely failed to establish such a chain of circumstantial evidence as would fasten the guilt of the accused/ appellants leaving no room of reasonable doubt. The trial court has accepted the prosecution evidence holding the accused appellants guilty for the offence punishable under section 302 IPC on fragile and feeble evidence, while there are material contradictions in the statements of prosecution witnesses, medical testimony etc which does not inspire confidence .
43. Resultantly, the appeal is allowed. The conviction of the accused appellants under section 302 IPC and the sentence passed thereon by the trial court vide judgment and order dated 24.5.2022 are set aside. The accused appellants are acquitted of all the charges. They shall be released forthwith, if not required to be detained in any other offence.
44. Lower court record be sent back.
Order Date:- 30.05.2024 Israr