Allahabad High Court
Chandra Pal And Others vs State Of U.P. on 7 March, 2019
Bench: Bala Krishna Narayana, Ghandikota Sri Devi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 4 Case :- CRIMINAL APPEAL No. - 581 of 1986 Appellant :- Chandra Pal And Others Respondent :- State Of U.P. Counsel for Appellant :- M.K.Gupta,Apul Misra,Dharmendra Singhal,Varinder Singh Counsel for Respondent :- D.G.A. Hon'ble Bala Krishna Narayana,J.
Hon'ble Ghandikota Sri Devi,J.
Heard Sri Apul Misra, learned counsel for the appellants and Sri J. K. Upadhyay, learned A.G.A. for the State.
This appeal has been filed by Chandrapal (A1), Satya Pal (A2) and Shyam Lal (A3) against the judgement and order dated 13.02.1986 passed by the learned Additional Sessions Judge, Shahjahanpur in S.T. No. 630 of 1984, State Vs. Chandrapal connected with S.T. No. 107 of 1985, State Vs. Ram Laraitey and S.T. No. 269 of 1985, State Vs. Satya Pal, convicting the appellants and sentencing them to undergo life imprisonment u/s 302/149 I.P.C., one year rigorous imprisonment u/s 147 I.P.C., two years rigorous imprisonment u/s 201 I.P.C. and a fine of Rs. 200 each and in case of default in payment of fine, further rigorous imprisonment of two months. All the sentences were directed to run concurrently.
Briefly stated the facts of this case are that there was one Gajju of village- Amritapur who had died issueless and his sister Smt. Bataso had inherited his estate. She sold the land of her brother to Behari, P.W.2 Ram Bilas and P.W.3 Beni Ram etc. Asha Ram, the Pradhan of the village wanted that the property of Gajju be declared Gram Samaj property and framed Smt. Bishna against them and for that cause, litigation was pending in the Tehsil Court and also there was proceedings u/s 107/116 Cr.P.C. drawn which were pending in the Court of S.D.M. at Shahjahanpur. On 22.08.1984, P.W.1 informant Jaipal Singh, Behari (deceased) son of Godhan, P.W.2 Ram Bilas, P.W.3 Beni Ram, P.W.4 Jograj after attending the criminal case at Shahjahanpur on 21.08.1984, came to Jalalabad and stayed in the night at Jalalabad and after attending the revenue case in the Tehsil, they proceeded from Jalalabad to Amritapur through Khandhar. At about 3.00 to 4.00 p.m. on 22.08.1984 when they reached the village- Baldeopur and were near the field of Teja Teli of village- Chhipraula who was at present residing at village- Sohad and when they were in the south east of the field then from southern side amidst the bushes called "Katri ki Patel', Asha Ram, Ram Laraitey armed with S.B.B.L. guns and Shyam Lal (A3), Chandrapal (A1) and Satya Pal (A2) armed with lathis, emerged out of the "Katri ki Patel" and surrounded Behari and attacked him with lathis and when he fell down dead, then Shyam Lal (A3) and Satya Pal (A2) dragged Behari by his feet towards the bushes up to the field of Rewari Teli and then lifted the body of Behari and disappeared with his body. Ram Laraitey fired at the witnesses, saying that they should not follow them. At this, the witnesses receded and took shelter in the bushes and after some time they came out and proceeded to their homes searching Behari, who could not be traced. They then proceeded to the village. After reaching his home, P.W.1 informant Jaipal Singh scribed the report and proceeded to the police station and lodged the report at P.S.- Paraur at 7.30 p.m. This occurrence took place within the area of P.S.- Jalalabad. A Case Crime No. NIL was registered at P.S.- Paraur vide check F.I.R. no. 54 and the papers were sent to P.S.- Jalalabad.
After investigation was completed, charge-sheet was filed by P.W.5 S.I. B.N. Sehgal before Chief Judicial Magistrate, Shahjahanpur.
Since, the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions, Chief Judicial Magistrate, Shahjahanpur committed all the three accused for trial to the Court of Sessions Judge, Shahjahanpur where their case was registered as S.T. No. 630 of 1984, State Vs. Chandrapal connected with S.T. No. 107 of 1985, State Vs. Ram Laraitey and S.T. No. 269 of 1985, State Vs. Satya Pal,, and made over for trial from there to the Court of Additional Sessions Judge, Shahjahanpur who on the basis of material collected during the investigation and after hearing the prosecution as well as the accused on the point of charge, framed charge u/s 147, 302/149, 307/149 and 201 I.P.C. against Chandrapal (A1), Satya Pal (A2) and Shyam Lal (A3) and charge u/s 148, 302, 307/149 and 201 I.P.C. was framed against co-accused Ram Laraitey and Asha Ram. The accused-appellants abjured the charges framed against them and claimed trial.
The prosecution in order to prove the charge framed against the accused-appellants examined as many as seven witnesses of whom P.W.1 informant Jaipal Singh, P.W.2 Ram Bilas, P.W.3 Beni and P.W.4 Jograj were examined as eye witnesss while P.W.5 S.I. B.N. Sehgal who had proved the check F.I.R. and the relevant G.D. Entries prepared by P.W.6 Constable Clerk Ram Autar as (Ext.Ka.2 and Ka.3 respectively) and the recovery memos of plain and blood-stained earth collected by him from the place of occurrence (Ext.Ka.4 and Ka.5), site plan of the occurrence (Ext.Ka.6)and the charge-sheet (Ext.Ka.7), supplementary charge-sheets (Ext.Ka.8 and Ka.9) and statements of witnesses P.W.3 Beni and P.W.4 Jograj (Ext.Ka.10 and Ka.11), P.W.6 Constable Clerk Ram Autar who had prepared the check F.I.R. (Ext.Ka.2) and the relevant G.D. Entries dated 22.08.1984 at 19.30 hours, 23.08.1984 at 5.50 a.m. and 24.08.1984 at 11.05 a.m. vide rapat nos. 19, 4 and 16 (Ext.Ka.12, 13 and 14) respectively and P.W.7 Head Constable Akhtar Ali, who had brought the documents pertaining to Case Crime No. NIL from P.S.- Paraur to P.S.- Jalalabad at about 8.45 a.m. on 24.08.1984, were produced as formal witnesses.
The accused in their statements recorded u/s 313 Cr.P.C. denied the prosecution case as false and alleged false implication due to enmity. Co-accused Ram Laraitey and Asha Ram filed documents Ext.Kha.1 to Ext.Kha.5 in defence. Ext.Kha.1, Ext.Kha.3 and Ext.Kha.4 are copies of statements of co-accused Asha Ram and Ram Laraitey. Ext.Kha.2 is copy of the complaint and Ext.Kha.5 is copy of application. The accused did not adduce any oral evidence.
Learned Additional Sessions Judge, Shahjahanpur after considering the submissions made by learned counsel for the parties before him and scrutinizing the evidence on record, both oral as well as documentary, convicted the appellants and awarded aforesaid sentences to them while co-accused Ram Laraitey and Asha Ram were acquitted by the impugned judgement and order.
Hence, this appeal.
Sri Apul Misra, learned counsel for the appellants submitted that in view of the glaring discrepancies in the prosecution case as spelt out in the written report of the occurrence (Ext.Ka.1) vis-a-vis the evidence of the four eye witnesses of the occurrence examined by the prosecution during the trial with regard to the manner of assault, totally belies the claim of having witnessed the occurrence and their evidence is liable to be discarded as false and concocted. The trial court committed a patent error of law in convicting the appellants on the basis of the testimony of P.W.1 informant Jaipal Singh, P.W.2 Ram Bilas and P.W.4 Jograj. P.W.3 Beni was declared hostile after he failed to support the prosecution case in his cross-examination. He next submitted that it is proved from the prosecution evidence itself that the F.I.R. in this case has been lodged ante-timed. He next submitted that the Investigating Officer of the case having failed to recover the corpse of the deceased and there being no evidence on record indicating that any serious effort was made to search out the body of the deceased, the aforesaid lapse on the part of the Investigating Officer seriously indicates that investigation in this case is tainted. He also submitted that the motive to commit the offence was ascribed to co-accused Ram Laraitey and Asha Ram and as regards the appellants, it was merely whispered that they were their friends. Co-accused Ram Laraitey and Asha Ram having been acquitted, the very edifice of the prosecution case lay in shambles and the conviction of the appellants recorded by the trial court without the prosecution having suggested or proved any motive qua them who committed the crime, cannot be sustained and is liable to be set-aside. He lastly submitted that neither the recorded conviction of the appellants nor the sentence awarded to them can be sustained and are liable to be set-aside. This appeal deserves to be allowed.
Per contra Sri J. K. Upadhyay, learned A.G.A. appearing for the State submitted that the failure of the Investigating Officer to recover the corpus delicti does not in any manner affect the prosecution case as out of the four eye witnesses of the fact, P.W.1 informant Jaipal Singh, P.W.2 Ram Bilas and P.W.3 Beni, who in their examination-in-chief have fully supported the prosecution case qua the appellants as narrated in the F.I.R. and even if there is any contradiction in the evidence of P.W.1 informant Jaipal Singh vis-a-vis the facts stated by him in the F.I.R., the evidence of P.W.2 Ram Bilas is throughout consistent and clinching and hence, fully establishing the complicity of the appellants in committing the murder of deceased by wielding lathi blows on him. The minor lapses on the part of the Investigating Officer would not confer any benefit to the accused-appellants or adversely affect the credibility of the prosecution case. He further submitted that the statement made by learned counsel for the appellants that the F.I.R. in this case is ante-timed, is wholly misconceived. He lastly submitted that this appeal lacks merit and is liable to be dismissed.
We have very carefully examined the statements made by the learned counsel for the parties present before us and have perused the entire lower court record.
The only question which arises for our consideration in this case is that whether the prosecution has been able to prove its case against the accused-appellant beyond all reasonable doubts or not ?
It is true that the incident is one of direct evidence. The incident as alleged by the prosecution had taken place between 3-4 p.m. on 22.08.1984 in the agricultural field of Teja Teli within the territorial limits of village- Baldeopur, P.S.- Jalalabad, District- Shahjahanpur. The written report of the incident (Ext.Ka.1) was filed by P.W.1 informant Jaipal Singh in which he had stated that the appellants armed with lathis and co-accused Ram Laraitey and Asha Ram armed with firearms, had intercepted deceased Behari while he along with P.W.1 informant Jaipal Singh, P.W.2 Ram Bilas, P.W.3 Beni and P.W.4 Jograj was returning from Shahjahanpur after attending a case in Shahjahanpur. When he reached the field of Teja Teli while appellants wielded lathi blows to him, co-accused Ram Laraitey and Asha Ram fired at him from their firearms as a result of which he died. When the informant and the other witnesses tried to save him, co-accused Ram Laraitey and Asha Ram fired in the area and threatened them with dire consequences although they had raised cries for help but no one turned up. The appellants and the other co-accused thereafter dragged Behari by his legs into the nearby bushes. In the written report, it was further stated that on account of pendency of civil litigation between Ram Laraitey and the family of the first informant, there was enmity between the two families. Ram Laraitey was doing pairavi on behalf of one Smt. Bishna in a case. The body of Behari could not be recovered and hence, there is no medical evidence on record with regard to the number of ante-mortem injuries received by him, nature of the injuries as well as the cause of death to ascertain whether the deceased died as a result of the injuries received by him in the incident in the manner as scribed in the F.I.R. We have before us only oral evidence as already noted earlier. The prosecution had examined four witnesses who claim to be the eye witnesses of the occurrence.
We therefore, proceed to appraise and evaluate the oral evidence on record with the object of finding out whether the prosecution has been able to prove its case against the appellants beyond all reasonable doubts or not.
P.W.1 informant Jaipal Singh stated that co-accused Ram Laraitey and Asha Ram were "bania" by caste and fathers of both were real brothers and they were residents of village- Amritapur where Behari resided. He further stated that Chandrapal (A1) and Shyam Lal (A3) were real brothers and Satya Pal (A2) was son of Chandrapal (A1) and all were "yadav" by caste and were residents of village- Sohar and it was alleged that co-accused Ram Laraitey and Asha Ram were on friendly terms and he further stated that Behari (deceased) was elder brother of his father. He further stated that one Gajju Kisan died three years back issueless. His 40 bighas land was inherited by his sister, Smt. Batasho. Smt. Batasho sold some portion of agricultural land in the name of Behari, P.W.2 Ram Bilas, Bhajju, P.W.3 Beni and Ram Bhajan etc. Asha Ram was Pradhan of the village. All the accused thus wanted that the land should go to Gram Samaj after the death of Gajju. Hence, they framed Smt. Bishna and filed objection in the mutation case and Ram Laraitey and Asha Ram were doing pairvi on behalf of Smt. Bishna in collusion with other accused. Co-accused Ram Laraitey and Asha Ram wanted Behari to compromise the case which failed. Hence, proceedings u/s 107/116 Cr.P.C. started between Behari, P.W.3 Beni, P.W.2 Ram Bilas on the one side and the "yadav" accused on the other side. On 21.08.1984, they came to attend the criminal case u/s 107/116 Cr.P.C. at Shahjahanpur and came to Jalalabad and attended the mutation case in the revenue court at Jalalabad on 22.08.1984 and after the case was adjourned, they proceeded for home. Thus, he along with P.W.2 Ram Bilas, Behari (deceased), P.W.3 Beni and P.W.4 Jograj started from Tehsil- Jalalabad at 1 p.m. in the afternoon for their home via Khandhar. After crossing village- Khandhar, they came to village- Baldeopur and when they were passing through the ploughed field of Teja Teli then from the southern Mendh of the field where there are bushes of "Katri ki Patel", five persons emerged from the bushes. Two of them were armed with guns and three with lathis. The persons who were armed with lathis and had attacked Behari with their weapons, were Chandrapal (A1), Satya Pal (A2) and Shyam Lal (A3). At that very time, two persons armed with guns came out and fired at Behari. He could not recognize the persons who were armed with guns. Behari died and his dead body was dragged by Chandrapal (A1), Satya Pal (A2) and Shyam Lal (A3), who were holding guns in their hand, aimed towards them. Then they slipped into the bushes and proceeded further. After going 100 steps, some villagers who were grazing cattle told them that co-accused Ram Laraitey and Asha Ram were the persons who were holding guns and among those persons, one was Chhotey. He followed the accused but Behari's dead body was not traced. He said that Behari was not his real uncle but of the same community and of the same village. He stated that in the case u/s 107/116 Cr.P.C., only "yadavs" were the parties. He stated that on that day, he went in the pairvi of the case for the first time. Co-accused Ram Laraitey and Asha Ram did not meet them in the court. He said that for going through Khandhar, they had to cross three rivers and by going through Allaganj, no river has to be crossed. His father was defeated by Asha Ram in the election for the post of Pradhan. Khandhar was four to five kilometres from the place of occurrence. After the occurrence, they crossed the river by boat. The bushes were of man's height. After the occurrence, when they were going, their colleagues did not tell him about the identity of the bandits who were armed with guns. Behari was dragged after receiving two shots. He stated that there had been fracas between Rameshwar, brother of Jograj and Shyam Lal (A3). He denied that he was deposing under the pressure of Jograj. He said that he and Behari had purchased 2/3 share in the chak of Thakurs of Umarpur and 1/3 share was purchased by Chandra Pal (A1) and other accused.
P.W.2 Ram Bilas stated that he lived along with P.W.1 informant Jaipal Singh and he had come to the city along with Behari and P.W.3 Beni for attending the case and P.W.1 informant Jaipal Singh and P.W.4 Jograj met him in the city who had come there in connection with other work but he remained with them in Jalalabad and also when they proceeded from Jalalabad after attending the court, for home. He stated that when he reached near the field of Teja Teli in village- Baldeopur, Chandrapal (A1), Satya Pal (A2) and Shyam Lal (A3) came out from the bushes and belaboured Behari and thereafter co-accused Ram Laraitey and Asha Ram fired shot at Behari who fell down dead. Then his body was dragged by Shyam Lal (A3) and Chandrapal (A1) while Asha Ram aimed his gun towards them so they could not chase them but remained away, raising alarm. Then they went to the village taking precaution. In the village, P.W.1 informant Jaipal Singh scribed the report and went to the police station. But he did not go to the police station. The wife and children of Behari are in the village. He stated that the Investigating Officer examined him on the third day. P.W.1 informant Jaipal Singh and Behari lived in the same vicinity but they had separate kitchen. He was with the Investigating Officer for two days in search of the dead body. He stated that he does not know whether Asha Ram was examined as a Pradhan by Smt. Bishna or in other capacity. He stated that Behari and the deceased used to do pairvi on his behalf and that it was the first and the last time when he went to attend the Court. He does not know who was his counsel in the case and how many witnesses have been examined. He said that he was party in the criminal proceedings u/s 107/117 Cr.P.C. On the spot, he did not see any cartridge. He did not tell to the Investigating Officer about the presence of 'Mandaiya' of Shyam Lal (A3), Kanhaiya and Kaptan Kahar. The shots were fired after coming from the "Katri ki Patel". He stated that he was at a distance as they hid themselves to avoid the gunshots. Thereafter they crossed the river. He stated that Irshad used to do pairvi on behalf of Smt. Bishna. He said that he does not know that co-accused Ram Laraitey and Asha Ram were doing pairvi on behalf of Smt. Bishna. He has not told the Investigating Officer that he was annoyed with Ram Laraitey as he was doing pairvi on behalf of Smt. Bishna. He also denied to have told the Investigating Officer that there was an old enmity between him and co-accused Ram Laraitey and Asha Ram. There is distance of one mile from the Abadi of Amritapur and Sohar. He stated that all the five accused came out at one time from the "Katri ki Patel" and at that time he was 25 steps away and when gunshots were fired, he was 50 steps away. He said that his fields were not near the house of Chandrapal (A1) and denied the dispute between him and Chandrapal (A1) about the boundary of the field.
P.W.3 Beni, resident of Amritapur, stated that Smt. Batasho, sister of Gajju had sold land to him, Behari, P.W.2 Ram Bilas and Ram Bhajan etc. and co-accused Ram Laraitey and Asha Ram wanted to purchase the land, so they were aggrieved. On 21.08.1984, he, Behari, Ram Bhajan and P.W.2 Ram Bilas had come to attend the criminal case at Shahjahanpur on 22.08.1984. They attended the revenue case in Tehsil about the mutation of the field which they had purchased from Smt. Batasho and after the case being adjourned, they proceeded to the village. When they were passing through the field of Teja Teli of village- Baldeopur, five persons came out from the bushes of "Katri ki Patel" and surrounded Behari who was ahead of them. These five persons were co-accused Ram Laraitey and Asha Ram who were armed with guns and Shyam Lal (A3), Satya Pal (A2) and Chandrapal (A1) armed with lathis. Behari fell down after receiving gun shots and then the assailants dragged the dead body towards the bushes. He receded further 100 steps. He was declared hostile as he said that the assailants had covered their faces with 'Dhatas'. He further stated that he could not see how many persons dragged the dead body. All the five assailants came out from the "Katri ki Patel" one by one. When the shots were fired, the assailants armed with lathis were three steps away from others and kept standing. He stated that the Investigating Officer did not examine him but he said that he had come to the court to attend the case and saw the occurrence. He further stated that he told the names of the accused as pointed out by P.W.1 informant Jaipal Singh as he receded. He further stated that the fact that the assailants had covered their faces was not told to the Investigating Officer as he was not asked and has stated about the same on being questioned in cross-examination.
P.W.4 Jograj, son of Jwala, resident of Amritapur, stated that he had come to the city of Shahjahanpur with his personal work along with Behari (deceased) who had come to attend his case. After doing the case work, Behari came to Jalalabad and he also remained with Behari. P.W.1 informant Jaipal Singh, P.W.2 Ram Bilas and P.W.3 Beni were also with Behari at Jalalabad and after the case was adjourned, they proceeded to home via Khandhar. He stated that near the field of Teja Teli in the "Katri ki Patel" area of Baldeopur where there was a cottage which was 70 steps away, he saw five persons coming out of the bushes of "Katri ki Patel". He recognized Chandrapal (A1), Shyam Lal (A3) and Satya Pal (A2) while the rest two could not be recognized being outsiders who were armed with guns. Chandrapal (A1), Satya Pal (A2) and Shyam Lal (A3) attacked Behari with lathis who fell down. The persons holding the guns also fired in the air but none was hurt. The dead body of Behari was dragged and thereafter hands and legs of Behari were tied and the assailants lifted his dead body on the lathi and took away. The assailants fired just to restrain them from approaching towards Behari, then they receded. Thereafter, they searched the dead body which could not be traced. The assailants who were armed with guns were strangers so he could not recognize them. After being questioned, about co-accused Ram Laraitey and Asha Ram, he said that those persons were known to him and that they were not there. He was declared hostile and he denied to have told the names of co-accused Ram Laraitey and Asha Ram being the assailants armed with guns. He stated that Smt. Bishna was daughter of Gajju and litigation was going on between Smt. Bishna, Behari and P.W.2 Ram Bilas. Co-accused Ram Laraitey and Asha Ram were helping Smt. Bishna. He said that he was not party to the revenue case or to the criminal case of Behari. He does not know whether there was any criminal proceeding drawn between his brother Rameshwar and Shyam Lal (A3) accused. His brother lives separately from him. He said that it is wrong that he appeared as a witness against Chandrapal (A1) in a case u/s 307 I.P.C. He said that he does not know that Kaptan of his village had lodged report u/s 307 I.P.C. in which he was named as a witness. He said that shots were fired when lathis were being hurled, then he receded upto 100 steps and even from that place, the faces of the assailants were quite visible. He further stated that P.W.1 informant Jaipal Singh was ahead of them.
After very carefully going through the evidence of P.W.1 informant Jaipal Singh, P.W.2 Ram Bilas, P.W.3 Beni and P.W.4 Jograj, we find their evidence is wholly untrustworthy and unreliable for the following reasons:-
(1) P.W.1 Jaipal Singh who is the informant of the case has in the written report of the incident nominated five persons as accused including the appellants, Ram Laraitey and Asha Ram as accused. In the F.I.R., it was not stated that he had not been able to identify the two miscreants who were carrying guns with them and had fired at the deceased and their identity was disclosed to him by some villagers whom he had met about 100 yards from the place of occurrence while he was returning to his village. However, in his evidence tendered by him before the trial court, not only he did not state the aforesaid fact but also failed to identify co-accused Ram Laraitey and Asha Ram in the Court as the persons who had fired at the deceased although in the F.I.R., the motive for committing the murder of Behari was specifically assigned to Ram Laraitey.
(2) P.W.2 Ram Bilas also in his statement recorded before the trial court, deposed that he had not been able to identify the two persons who were carrying guns and who had fired at him and the deceased and the identity of the gun wielding miscreants was disclosed by some villagers after they were walking away from the place of occurrence. He also failed to identify the co-accused Ram Laraitey and Asha Ram in the court as the persons who had shot at the deceased. Sri J. K. Upadhyay, learned A.G.A. very vehemently argued that any contradiction vis-a-vis the facts mentioned in the F.I.R. and those deposed by P.W.2 Ram Bilas cannot be used against P.W.2 Ram Bilas whose evidence is throughout consistent. We will deal with the aforesaid argument of Sri J. K. Upadhyay, learned A.G.A. after we have given the reasons for disbelieving the other two witnesses.
(3) P.W.3 Beni although supported the prosecution case in his examination-in-chief but he was declared hostile after he stated in his examination-in-chief that the assailants had covered their faces with "Dhatas". It is noteworthy that he was cross-examined by the D.G.C. (Criminal) at great length but we are afraid that he failed to elicit anything out of him which may indicate that he has been won over by the accused. Moreover, no reliance can be placed on the testimony of P.W.3 Beni considering the fact that he in his examination-in-chief had categorically deposed that the assailants had concealed their faces with "Dhatas".
(4) As far as P.W.4 Jograj is concerned, he very categorically deposed that the accused-appellants who were carrying lathis with them, had assaulted the deceased with their lathis and according to him, co-accused Ram Laraitey and Asha Ram had not fired at the deceased with their firearms, causing firearm wounds to him, but they fired at the witnesses, which did not hit them although the consistent prosecution case is that Ram Laraitey and Asha Ram had also shot the deceased with their firearms.
(5) Although P.W.1 informant Jaipal Singh, P.W.2 Ram Bilas and P.W.3 Beni deposed that after assaulting Behari, the accused had dragged him into the bushes by holding him from his feet but P.W.4 Jograj went a step ahead and said that the accused after dragging the deceased into the bushes, tied him with a bamboo and then carried him away.
Now, when we consider the submissions made by Sri J. K. Upadhyay, learned A.G.A. with regard to the reliability and trustworthiness of the evidence of P.W.2 Ram Bilas that his evidence is not liable to be discarded, we find that there are material contradictions in the evidence of all the four witnesses and in view of the above, it would not be safe to confirm the conviction of the appellants on the basis of his evidence alone.
Thus, in view of the aforesaid discussions and in the absence of the corpus delicti and the discrepancies in the statements of the witnesses vis-a-vis the prosecution case as spelt out in the F.I.R., it is difficult for us to hold that the appellants had committed the murder of Behari.
There is yet another aspect of the matter which is extremely material and which goes to the core of the prosecution case rendering it unreliable.
Learned counsel for the appellants has argued that the F.I.R. in this case is ante-timed. We find force in the aforesaid submissions. The column of the check F.I.R. in which the distance of the police station from the place of occurrence is mentioned, is blank. It is alleged that the incident had taken place on 22.08.1984 between 3-4 p.m. in the field of Teja Teli in village- Baldeopur, P.S.- Jalalabad. It has come in the evidence of P.W.1 informant Jaipal Singh and P.W.2 Ram Bilas that after the incident, they had returned to their village on foot after crossing two rivers, searching the body of Behari and then the written report of the incident was scribed by P.W.1 informant Jaipal Singh and given at P.S.- Paraur, District- Shahjahanpur. The investigation in this case strangely commenced on 24.08.1984 as is evident from the testimony of P.W.5 S.I. B.N. Sehgal. A feeble attempt has been made by the prosecution to explain this inordinate delay in starting the investigation by examining P.W.7 Head Constable Akhtar Ali who deposed that the F.I.R. and the other relevant documents were received by him from P.S.- Paraur on 22.08.1984 but on account of his having unable to get any boat to cross the river and due to flood, he had to return. He again started for Jalalabad on 23.08.1984 but could not reach there as he fell ill on the way and had to return. He reached P.S.- Jalalabad on 24.08.1984 at about 9 a.m. and handed over the documents at the police station but he was asked to return as the Circle Officer had issued an order through R.T. Set that the case shall be investigated at P.S.- Paraur whereafter he returned to P.S.- Paraur. The explanation furnished by P.W.7 Head Constable Akhtar Ali for delay of two days in starting the investigation does not appeal to us and is wholly unacceptable. The evidence of P.W.7 Head Constable Akhtar Ali, if evaluated in the light of the testimony of P.W.1 informant Jaipal Singh who had categorically stated that on the same day, he had crossed two rivers by boat and denied the suggestions that no boat was available on the relevant date, appears to be false on the face of the record.
Thus, upon a conjoint reading of the evidence of P.W.1 informant Jaipal Singh and P.W.7 Head Constable Akhtar Ali, it transpires that the explanation for delay given by P.W.7 Head Constable Akhtar Ali in his evidence, cannot be accepted.
The delay in commencing the investigation within a reasonable time gives rise to a very strong doubt that the F.I.R. in this case is ante-timed and it would not be safe to confirm the recorded conviction of the appellants in a case instituted on the basis of a F.I.R., credibility whereof itself is under a strong cloud.
The impugned judgement and order has also been assailed by the learned counsel for the appellants on the ground that the investigation in this case was perfunctory and tainted. It has been pointed out that although the witnesses of fact as well as the formal witnesses have deposed that on the date of the incident, it was raining and the area was flooded on account of which P.W.7 Head Constable Akhtar Ali allegedly was unable to reach P.S.- Jalalabad but strangely the Investigating Officer found blood-stained and plain earth at the place of occurrence on 24.08.1984, allegedly collected the same and prepared its recovery memo (Ext.Ka.5). In case, it was raining on 22.08.1984, no blood-stained earth would have remained at the crime scene for being collected by the Investigating Officer two days after the incident. It has also been pointed out that the Investigating Officer deliberately did not make any serious effort to trace out the body of Behari which deprived the court of material piece of medical evidence which would have enabled the Court to ascertain not only the cause of death but also whether the medical evidence corroborated the manner of assault as spelt out in the F.I.R.
Sri J. K. Upadhyay, learned A.G.A. however contended that mere defective investigation in a case by itself cannot be the ground for its acquittal. In support of his aforesaid contention, he has placed reliance on a judgement rendered by the Hon'ble Apex Court in Yogesh Singh Vs. Mahabeer Singh & Ors, 2016 LawSuit (SC) 1032, paragraph 30 which is reproduced as hereunder :-
"There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the Investigating Officer and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground of acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
However, deriving support from the same paragraph of the said judgement, we have no hesitation in holding that the investigation in this case suffered not only from major lapses but material irregularities which affected the object of finding out the truth. In the instant case, even dehors the lapses on the part of the Investigating Officer after carefully examining the evidence on record, we have not found the same to be reliable and trustworthy. The cumulative effect of the omissions, lapses and the irregularities committed by the Investigating Officer in this case, in our opinion, has caused irretrievable prejudice to the defence/accused.
Thus, upon a wholesome consideration of the facts of the case, attending circumstances and the evidence on record, we are of the view that neither the recorded conviction of the appellants nor the sentence of life imprisonment awarded to them can be sustained. The prosecution, in our opinion, has not been able to bring home the charge framed against Chandrapal (A1) and Satya Pal (A2) beyond all reasonable doubts.
Consequently the recorded conviction of the appellants and the sentences awarded to them, are hereby set-aside.
The appeal succeeds and is accordingly, allowed.
The appellants are on bail. They need not surrender. Their bail bonds are cancelled and their sureties discharged. However, they will comply with the mandatory provisions of Section 437-A of Cr.P.C.
There shall however, be no order as to costs.
Order Date :- 7.3.2019 KS