Allahabad High Court
Om Pal Singh And Other vs State Of U.P. on 7 March, 2018
Bench: Amreshwar Pratap Sahi, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on: 8.1.2018 Delivered on: 7.3.2018 Court No. - 40 Case :- CRIMINAL APPEAL No. - 7296 of 2010 Appellant :- Om Pal Singh And Other Respondent :- State Of U.P. Counsel for Appellant :- Samit Gopal,Alkesh Singh Chauhan,Anil Kumar Shukla,Dileep Kumar,Mangala Pd.Rai,Nazrul Islam Jafri,Noor Mohammad,Rajrshi Gupta,Sheshadri Trivedi,Vijay Praksah Counsel for Respondent :- Govt.Advocate,Adesh Kumar,B.S.Khokhar,Pankaj Kumar Tyagi,Smt. Archana Tyagi With Case :- CRIMINAL APPEAL No. - 7454 of 2010 Appellant :- Akbar Respondent :- State Of U.P. Counsel for Appellant :- Dharmendra Singhal,Alkesh Singh,Anil Kumar Shukla,Avnish Kumar Srivastava,Babit Kumar,Madan Lal Rai,Noor Mohammad,R.D.Tiwari Counsel for Respondent :- Govt. Advocate With Case :- CRIMINAL APPEAL No. - 7701 of 2010 Appellant :- Bhagat Respondent :- State Of U.P. Counsel for Appellant :- Manish Kumar Singh,Ali Hasan,Rajarshi Gupta (A.C.),S.V. Pathak,Ulajhan Singh Bind Counsel for Respondent :- Govt. Advocate Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajeev Misra,J.
(Delivered by Hon'ble Rajeev Misra,J.)
1. These appeals arise out of an occurrence which the prosecution describes to be a deliberate act of murderous assault, whereas the defence calls it an accidental fire resulting in the death of Roomal Singh and his three Buffaloes. All the appellants have been convicted and sentenced to undergo punishment for the murder of Roomal Singh giving rise to these appeals.
2. Criminal Appeal No. 7296 of 2010 has been filed by Om Pal Singh along with Ravindra Kumar and Arun Kumar @ Kanhaiya. Criminal Appeal No. 7454 of 2010 has been filed by Akbar whereas, Criminal Appeal No. 7701 of 2010 has been filed by Bhagat. All the aforesaid criminal appeals arise out of a common judgement and order dated 26.10.2010, passed by the Additional Sessions Judge/Special Judge, SC/ST Act, Meerut in S.T. No. 50 of 2003 (State Vs. Om Pal Singh and 4 Others) arising out of Case Crime No. 61/332/99 under sections 147, 148, 149, 302, 429, 436 I.P.C. and section 3 (1) (10) SC/ST Act, Police Station Incholi, District Meerut, as such they have been clubbed and have been heard together.
3. The Trial Court convicted all the accused-appellants under section 436 IPC. Bhagat and Akbar two of the accused-appellants were convicted under section 148, 302/149, 429 IPC and 3(1)(10) and 3 (2)(5) of the SC/ST Act. Similarly, the accused-appellants Om Pal and Ravindra have been convicted under section 148, 302/149 and 429 IPC. The accused-appellants Arun Kumar @ Kanhaiya has been convicted under section 147, 302/149, 429 IPC and Section 3 (1)(10) and 3(2)(5) SC/ST Act. On the question of sentence, the accused-appellant Arun Kumar @ Kanhaiya has been awarded one year rigorous imprisonment under section 147 IPC. The accused-appellant Bhagat, Akbar, Om Pal and Ravindra Kumar have been awarded two years rigorous imprisonment under section 148 IPC. The accused-appellants Arun Kumar @ Kanhaiya, Bhagat, Akbar, Om Pal Singh and Ravindra Kumar have been awarded life imprisonment under section 302/149 IPC with fine of Rs. 10,000/- each. Upon failure to deposit the fine, they were further directed to undergo rigorous imprisonment for one year. The accused-appellants were awarded rigorous imprisonment of five years along with fine of Rs. 5,000/- each, under section 436 IPC. In case of default, regarding the payment of fine, all the accused-appellants were to undergo additional six months of rigorous imprisonment. Apart from the above, accused-appellants Bhagat, Akbar and Arun Kumar @ Kanhaiya were awarded six months rigorous imprisonment along with fine of Rs. 2,000/- each, under section 3(1)(10) SC/ST Act. In case of default, regarding the payment of fine, all the accused-appellants were to undergo one month additional imprisonment. The Court below further sentenced all the accused persons for life imprisonment along with fine of Rs. 10,000/- each under section 3(2)(5) SC/ST Act. Upon failure to deposit the amount of fine, all the accused appellants were to undergo one year of additional imprisonment. All the sentences were to run concurrently.
4. We have heard Mr. Dileep Kumar, Mr. Rajrshi Gupta, the learned Amicus Curiae, Mr. Avinash Kumar Srivastava and Mr. Anil Kumar Shukla for the appellants, Mr. Sagir Ahmad, learned A.G.A. along with Mr. Rishi Chaddha, A.G.A. who have appeared for the State and Mr. Adesh Kumar and Mr. Pankaj Kumar Tyagi, learned counsel for the complainant.
5. Adverting to the facts of the present case, the unfortunate fatal incident occurred at the midnight hour of 2/3.12.1999 at village Dedua, District Meerut which was a cold and chilly winter night. It is alleged that Raj Kumar S/o Roomal Singh upon hearing cries and loud shouts came out of his house by which time various other residents of the village including Naipal S/o Nanua, Rampal S/o Kuri Ram, Madan S/o Tej Pal, Ram Phal S/o Baljor and Ganga S/o Ram Swaroop had also arrived. Thereafter, all the aforesaid persons ran towards the place from where the noise was coming. In the light of the electric bulb, the aforesaid persons saw that Om Pal S/o Nathu armed with a country made pistol (Katta), Akbar armed with gun, Ravindra S/o Omi armed with country made gun (tamancha) and Bhagat S/o Suraj Singh armed with Pharsa (a sharp edged weapon) and many others armed with lathi, ballam and pharsa had already grouped and prevented Raj Kumar and others from proceeding ahead using caste denoting words and threatening to kill them if they proceeded further towards the actual spot of occurrence. Thereafter, Bhagat exhorted Ravindra to quickly tie Roomal Singh with the Charpai (cot) without any delay. Accordingly Arun S/o Ramesh and his companion hurriedly tied Roomal Singh to the cot and at that very moment Akbar called upon them to quickly pour oil upon Roomal Singh. Then Bhagat sprinkled oil and took out a match box from his pocket and lighted the chappar (thatched hut). Raj Kumar and others with folded hands, in a loud voice requested that the Girls Primary School (Kanya Prathimik Vidyalay) be constructed anywhere as the accused may desire which they will not oppose. However, the chappar (thatched hut) and the deceased and one male and one female buffalo calf were consumed in the fire resulting in the death of Roomal Singh S/o Khachedu. Two buffaloes and one female buffalo calf received burn injuries. Thereafter the accused persons fired and threatened Raj Kumar and others to run away or they shall also be done to death in the same fashion.
6. Thus, according to the F.I.R. version of the prosecution story, the accused Arun and Ravindra have been assigned the role of tying Roomal Singh with the cot. The accused Akbar has been assigned the role of exhortation. The accused Bhagat has been assigned the role of pouring oil on Roomal Singh and lighting the Chappar (thatched hut).
7. Raj Kumar son of deceased Roomal Singh lodged an F.I.R. of the aforesaid occurrence at Police Station Lavad, Sardhana, District Meerut at 4:05 am on 3.12.1999 naming, Om Pal Son of Nathu, Ravindra S/o Om Prakash, Arun S/o of Ramesh Sharma, Bhagat S/o Surat Singh and Akbar S/o Chaman Khan as accused. On the basis of the aforesaid F.I.R, Case Crime No. 61/332/99 under Sections 147, 148, 149, 429, 436, 302 IPC and Section 3 (2)(5) SC/ST Act, P.S. Incholi, District Meerut came into existence. As per the check F.I.R, the A.S.P. Incholi was to conduct the investigation of the aforesaid case crime number.
8. Subsequent to the lodging of the aforesaid F.I.R, the police of Police Station Incholi, District Meerut swung into action. S.I. Jai Veer Singh undertook the formality of getting the inquest/panchayatnama of the body of the deceased prepared. Accordingly, the inquest/panchayatnama of the body of the deceased was got conducted on 3.12.1999. The inquest/ panchayatnama of the deceased Roomal Singh commenced at 4:05 am and concluded at 5:55 am. The cause of death of the deceased Roomal Singh, according to the panch witnesses, was due to the incident of fire. As such the death of Roomal Singh was said to be homicidal.
9. Thereafter, the Sub-Inspector of the aforesaid Police Station visited the spot and took the sample of plain earth from the place of occurrence and prepared a memo dated 13.2.1991 (Ext. Ka-7). He then took the sample of earth mixed with blood and prepared its memo dated 13.12.1999 (Ext. Ka-8). The torched articles, which included the burnt pieces of the material with which the cot was knitted (badh) of six inches in length 6 to 7 in number, part of the burnt jacket of Khadi make and part of the burnt Kurta which was of sky blue colour. The memo dated 13.12.1999 was prepared and accordingly marked as Ext. Ka-9. The aforesaid police official also recovered two live cartridges of .315 bore from the spot. Accordingly, a recovery memo of the same dated 13.12.1999 (Ext. Kha-10) was prepared.
10. Upon completion of the inquest/panchayatnama of the body of the deceased, as noted above, the body of the deceased Roomal Singh was sent for Post-Mortem. The same was accompanied with certain papers namely, Ex. Ka-11, Ex. Ka-12, Ex. Ka-13 and Ex. Ka-14 as is evident from the record. The Post-Mortem was conducted by Dr. Gyanendra Kumar P.W.3 and accordingly he submitted the Post-Mortem report dated 3.12.1999 (Ext. Ka-2). In the opinion of the doctor, the cause of death of the deceased was on account of shock and hamerrohge as a result of ante-mortem incised injury. No carbon particles were found in the trachea of the deceased. The following ante-mortem incised injury was found on the body of the deceased:
"Incised wound 12 x 7 cm x bone seated on left side fore head temporal region Left side left mandible and left parietal bone broken"
11. Apart from the above mentioned ante-mortem incised injury, the doctor also found the following Post-Mortem burn injury on the body of the deceased Roomal Singh:
"Post-Mortem extensively charred no redness no blister at burn injury skin and subcutaneous tissue deep."
12. On the same day, the Post-Mortem of the dead bovines was also conducted by Dr. P.K. Gupta. The same are on the record as Exhibit Ka-3, Ehibit Ka-4, and Exhibit Ka-5. As per the Doctor who conducted the Post-Mortem of the dead bovines, the cause of death of the three buffaloes were burn injuries which were ante-mortem in nature.
13. On 20.12.1999, the police officer took possession of ashes, part of jute cloth (tat) and accordingly prepared a memo of the same dated 20.12.1999 (Ext. Ka-15).
14. The Investigating Officer in terms of Chapter XII Cr.P.C. proceeded with the statutory investigation of Case Crime No. 61/332/99 under sections 147, 148, 149, 302, 429, 436 I.P.C. and section 3 (1) (10) S.C./S.T. Act, Police Station Incholi, District Meerut. Accordingly, the Investigating Officer prepared the site plan (Ext. Ka-17) recorded the statements of various witnesses under Section 161 Cr.P.C. We are not referring to the same in detail as no attempt has been made by the defence to cross examine the prosecution witnesses with their testimony under Section 161 Cr.P.C nor they have been contradicted with the same during the course of cross-examination in the trial.
15. Upon completion of the investigation of the above mentioned Case Crime Number, the investigating Officer on the basis of the statements recorded under section 161 Cr.P.C, the material collected during the course of investigation, and the documents prepared came to the conclusion that the accused persons are guilty of having committed the crime alleged against them. Accordingly, the investigating Officer submitted the charge-sheet dated 18.9.2002 against the named accused persons mentioned in the F.I.R. dated 3.12.1999.
16. Upon the receipt of the charge-sheet dated 18.9.2002, the A.C.J.M-IInd Meerut took cognizance vide order dated 23.9.2002.
17. Since the named accused persons apart from being charge sheeted under sections 148, 302/149, 429, 436 I.P.C. were also charge sheeted under section 3(1)(10) and Section 3(2)(5) SC/ST Act, the case was required to be committed to the Court of Sessions and thereafter, transferred to the Special Judge, SC/ST Act, Meerut who alone had the jurisdiction to try the same.
18. Accordingly, the C.J.M. Meerut committed the case to the Court of Sessions, vide committal order dated 8.10.2003. Thereafter, the District Judge, Meerut vide order dated 23.1.2003 transferred the case to the Court of the Special Judge, SC/ST Act, Meerut. As such S.T. No. 50 of 2003 (State Vs. Om Pal Singh and 4 Others) came to be registered in the Court of the Special Judge, SC/ST Act, Meerut.
19. The Special Judge, SC/ST Act, Meerut vide order dated 31.1.2007 framed charges against the named accused Bhagat and Akbar to the following effect. Charge No. 1 was in respect of an offence punishable under Section 148 IPC. Charge No.2 was in respect of an offence punishable under Section 302/149 IPC. Charge No. 3 was in repect of an offence punishable under Section 429 IPC. Charge No. 4 was in respect of an offence punishable under Section 3(1)(10) SC/ST Act. Charge No. 5 was in respect of an offence punishable under Section 3(2)(5) SC/ST Act.
20. Similarly against the accused Om Pal Singh and Ravindra Kumar charges were framed vide separate order dated 31.1.2007 to the following effect. Charge No. 1 was in respect of an offence punishable under Section 148 IPC. Charge No. 2 was in respect of an offence punishable under Section 302/149 IPC. Charge No. 3 was in respect of an offence punishable under Section 429 IPC. Vide separate order dated 31.1.2007, the Special Judge SC/ST Act, Meerut framed separate charges against the named accused Arun Kumar @ Kanhaiya to the following effect. Charge No. 1 was in repect of an offence punishable under Section 147 IPC. Charge No. 2 was in repect of an offence punishable under Section 302/149 IPC. Charge No. 3 was in repect of an offence punishable under Section 429 IPC. Charge No. 4 was in respect of an offence punishable under Section 3(1)(10) SC/ST Act. Lastly, Charge No. 5 was framed in respect of an offence punishable under Section 3(2)(5) SC/ST Act. Subsequently, vide order 26.2.2007, the court below framed additional charge for an offence punishable under section 436 IPC against all the accused persons.
21. The accused persons denied the charges so framed against them and demanded trial. Accordingly, the proceedings of S.T. No. 50 of 2003 (State Vs. Om Pal Singh and 4 Others) under Sections 147, 148, 149, 302, 429, 436 I.P.C, section 3 (1) (10) and 3 (2)(5) SC/ST Act, Police Station Incholi, District Meerut, commenced before the Additional District Judge/Special Judge, SC/ST Act, Meerut.
22. The accused persons in their defence set up the case of false implication. Some of the accused-appellants attributed their false implication on account of party politics, whereas some of the accused-appellants have attributed their false implication because of political rivalry or political enmity. Apart from the above, the accused-appellants also took the defence that the occurrence in which the three buffaloes died and the body of Roomal Singh was charred, is an accident and not an incident as alleged by the prosecution. The accused persons have been falsely implicated in a case which is purely accidental in nature, but has been given the shape of an incident. It is also their submission that the cause of the death of the deceased as per the post-moretm report is an ante-mortem incised injury for which there is neither any ocular testimony or corroborative evidence to prove the same. To the contrary the statements of the doctor and the veterinary doctor explained the injury caused probably by an animal hoof. There is no evidence to connect the accused of being involved or having caused the said fatal injury. Their is no recovery of any sharp edged weapon.
23. The prosecution in support of its case adduced the following witnesses:-
P.W.1 Raj Kumar First Informant P.W.2 Ram Pal Eye-witness P.W.3 Dr. Gyanendra Kumar The doctor who conducted the Post-Mortem of the body of Roomal Singh P.W.4 Naipal Singh Eye-witness P.W.5 Dr. P.K. Gupta The doctor (C.V.O) who conducted the Post-Mortem of the carcass of bovines P.W.6 S.I. Jai Veer Singh Police Sub-Inspector who prepared the memo of recoveries P.W.7 Pooran Singh Investigating Officer P.W.8 J.N. Prashad Shukla Investigating Officer C.B.C.I.D P.W.9. Subhas Chandra Police Head Constable
24. Apart from relying upon the testimony to be given by the aforesaid witnesses, the prosecution also relied upon certain documentary evidence which were duly marked as exhibits. The same are detailed herein below:
Ex. Ka-1 Written Report Proved by P.W.1 Raj Kumar Ex. Ka-2 Post-Mortem Report of Deceased Roomal Singh Proved by P.W.3 Dr. Gyanendra Kumar Ex. Ka-3 Post-Mortem Report of buffalo Proved by P.W.5 Dr. P.K. Gupta Ex. Ka-4 Post-Mortem Report of buffalo Proved by P.W.5 Dr. P.K. Gupta Ex. Ka-5 Post-Mortem Report of buffalo Proved by P.W.5 Dr. P.K. Gupta Ex. Ka-6 Panchayatnama/ Inquest Report Proved by P.W. 6 S.I. Jasbir Singh Ex. Ka-7 Recovery memo of plain earth Proved by P.W. 6 S.I. Jasbir Singh Ex. Ka-8 Recovery memo of blood stained earth Proved by P.W. 6 S.I. Jasbir Singh Ex. Ka-9 Recovery memo or burn articles Proved by P.W. 6 S.I. Jasbir Singh Ex. Ka-10 Recovery memo of two bullets recovered from the spot. Proved by P.W. 6 S.I. Jasbir Singh Ex. Ka-11 Request letter to conduct the Post-Mortem Proved by P.W. 6 S.I. Jasbir Singh Ex. Ka-12 Memo regarding sealed body of deceased Proved by P.W. 6 S.I. Jasbir Singh Ex. Ka-13 Photo Nash Proved by P.W. 6 S.I. Jasbir Singh Ex. Ka-14 Police Form No. 13 Proved by P.W. 6 S.I. Jasbir Singh Ex. Ka-15 Recovery memo of ash and burned tat (Jute cloth) Proved by P.W.7 Pooran Singh Ex. Ka-16 Charge-sheet Proved by P.W.8 Jag Mohan Shukla Ex. Ka-17 Site Plan Admitted by the counsel for the accused under section 294 Cr.P.C. Ex. Ka-18 F.I.R Proved by P.W.9 Subhash Chandra Ex.Ka-19 Copy of the G.D Proved by P.W.9 Subhash Chandar
25. After the witnesses produced by the prosecution, had given their testimony and had also been cross-examined the statement of the accused-appellants were recorded in terms of Section 313 Cr.P.C.
26. The statement of the accused-appellants as recorded under Section 313 Cr.P.C. acquires relevance and importance in the peculiar facts and circumstances of the case. Accordingly, we felt it proper to examine the entire statement of the accused-appellants under Section 313 Cr.P.C ourselves with care and caution because of the question involved in the appeals.
27. The statement of the accused appellants recorded under Section 313 Cr.P.C. does not disclose any fact or material to explain the occurrence as an accident. Except for a bald statement in the statements of some of the accused-appellants, that an accident has been given the shape of incident, no material particulars of the occurrence have been stated by the accused-appellants to explain the manner of the alleged fire accident either caused by electric short circuit or the incised wound caused by the kick of an animal hoof which occurred on the day, date and time mentioned in the F.I.R. Accused-appellant No.1 Om Pal in answer to question No. 16 stated that defence evidence shall be led and the accused shall file his written testimony. The last part of this statement under Section 313 Cr.P.C is worth noticing. However, we must take note of the fact that the accused Om Pal did not get himself examined as a defence witness nor any substantive evidence was adduced by the defence in support of such a contention.
28. The defence in order to establish its case adduced only one document in evidence, which is the wireless message dated 3.12.1999 (Ext. Kha-1) and further got summoned the doctor who conducted the Post-Mortem upon the body of the deceased Roomal Singh namely, Dr. Gyanendra Kumar as a court witness (C.W. 1). Apart from the above, the defence vide list of documents (paper no.19 Kha) filed four documents namely, paper no. 20 kha, Photo copy of the letter sent by the District President Meerut, Bahujan Samaj Party to the District Magistrate/S.S.P. Meerut. Paper No. 21 Kha, photo copy of the letter sent by Bhuvesh Sidharth to the District Magistrate, Meerut. Paper No. 22 Kha, photo copy of the letter dated 17.12.1999 sent by the A.D.M. Meerut to the District Magistrate, Meerut. However, none of these documents were admitted in evidence, as such, they have not been marked as exhibits. Paper No. 23 Kha (Ext. Kha-1) photo copy of the wireless message dated 3.12.1999 sent to the Senior Superintendent of Police, Meerut by the Superintendent/S.P.R.A/Circle Officer/Inspector, Inchauli.
29. On behalf of the accused-appellants, the following submissions were made before the court below in proof of their innocence:-
(a)The evidence adduced by the prosecution in support of its case is not trust worthy.
(b) The occurrence is an accident regarding which information was given by the first informant himself on the basis of which wireless message was sent.
(c) The F.I.R. is ante-timed.
(d) It is not proved that the prosecution witnesses have seen the occurrence.
(e) The investigation is faulty
(f) The prosecution has failed to prove the charges framed against the accused.
(g) There is no mention of the case crime number in the Post-Mortem Report nor there is any videography of the the process of Post-Mortem, which proves the ante-timing of the F.I.R. and also the prosecution case being false.
(h) All the prosecution witnesses are of the same family and are interested witnesses. There is no independent witness adduced by the prosecution.
(i) Such accused persons who have not actively participated in the commission of the crime nor have they injured the deceased, nor they have indulged in torching are liable to be acquitted of the charge under Section 149 IPC.
30. The Court below upon evaluation of the submissions made in the light of the evidence on the record, rejected the same. The testimony of the doctor P.W.3 namely, Dr. Gyanendra Kumar and P.W. 5 Dr. Prashant Kumar Gupta, who conducted the Post-Mortem upon the body of the deceased Roomal Singh and the carcass of the three buffaloes was found to be trust worthy. Relying upon the evidence of the aforesaid two witnesses, the occurrence with regard to torching was confirmed which in turn also confirmed the date and time of torching which is also the prosecution case. Further, the trial court placing reliance upon Ext. Ka-7 and Ka-8, which are the recoveries of plain earth and earth mixed with blood, found the place of occurrence where Roomal Singh was assaulted to be proved. The testimony of the three prosecution witnesses of fact namely, P.W.1 Raj Kumar, P.W. 2 Ram Pal and P.W. 4 Naipal Singh which clearly supported the prosecution case regarding the torching incident and the presence of the accused was found to be trust worthy. The trial Court also found that the aforesaid witnesses are credible and reliable. Accordingly, the F.I.R. version of the prosecution case was held to be duly proved in the testimony of the aforesaid witnesses. With regard to the effect of the wireless message (Ext. Kha-1), the trial court concluded that the prosecution has been lodged against the accused persons on the basis of the F.I.R. dated 3.12.1999 and not on the basis of the wireless message. The lodging of the F.I.R. (Ex. Ka-18) has been proved by P.W.1 Raj Kumar and the prosecution version of the story as contained in the F.I.R. has also been proved by the three prosecution witnesses namely, P.W.1, P.W.2, P.W.4. The failure on the part of the prosecution to adduce any independent witness, will not adversely affect the prosecution case as the prosecution witnesses of fact that is P.W.1 Raj Kumar, P.W.2 Ram Pal and P.W.4 Naipal Singh are credible and reliable witnesses and their testimony is liable to be accepted and relied upon. The accused persons cannot be discharged on the ground that the F.I.R. has been lodged with delay or the panchayatnama does not contain full particulars as the prosecution witnesses of fact have proved the prosecution story and their evidence is trust worthy. All the accused persons are guilty of the offences for which they have been charged. Consequently, the Court below convicted all the accused persons, vide judgement and order dated 26.10.2010.
31. Thus feeling aggrieved by the judgement and order dated 26.10.2010, passed by the Court below, the accused-appellants have come up in appeals before this court.
32. Before we proceed to consider the question involved in the present appeals, it is desirable to note the following distinguishing facts of the case for better appreciation of the prosecution case, the defence set up by the accused-appellants and the evidence on the record.
(a) In the F.I.R. dated 3.12.1999, Naipal S/o Nanua, Rampal S/o Kuri Raam, Madan S/o Tej Pal, Ram Phal S/o Baljor and Ganga S/o Ram Swaroop have been named as eye-witnesses of the occurrence. However, out of the above named five eye-witnesses, only two persons namely, Ram Pal and Naipal Singh have been produced as prosecution witnesses i.e. P.W.2 and P.W.4.
(b) The prosecution has not explained as to why the remaining three named eye-witnesses have not been produced.
(c) The Post-Mortem report dated 3.12.1999 (Ext. Ka-2) clearly mentions that ante-mortem incised injury and Post-Mortem burn injuries were found on the body of the deceased Roomal Singh.
(d) According to the Post-Mortem report the cause of death of deceased Roomal Singh was on account of shock and hamerrohge as a result of ante-mortem incised injury.
(e) In the opinion of Dr. Gyanendra Kumar P.W. 3 who conducted the Post-Mortem, the incised wound found on the body of the deceased Roomal Singh, could also have been caused by the hoof of cattle.
(f) According to the check F.I.R, the F.I.R. is reported to have been lodged on 3.12.1999 by Raj Kumar the first informant who is also the son of the deceased Roomal Singh. The F.I.R. is reported to have been registered at 4:05 am whereas the inquest/panchayatnama of the deceased Roomal Singh commenced at 4:05 am and concluded at 5:55 am as per the inquest/Panchayatnama (Ext. Ka-6) itself.
(g) The distance between the place of occurrence and the police station is 4 kms., and therefore the lodging of the F.I.R. and the proceedings of the panchayatnama/inquest upon the body of the deceased could not be undertaken at the same time.
(h) According to the defence in respect of the occurrence in which Roomal Singh and three bovine died, a wireless message dated 3.12.1999 is reported to have been sent at 4:00 am the information whereof is alleged to have been received at 4:05 am which is prior in point of time of the lodging of the F.I.R. The said wireless message was sent by Vijay Pal Singh on the alleged basis of the information given by Raj Kumar the first informant himself which clearly speaks of the occurrence as an accident, caused by electric short circuit.
(i) The testimony of the prosecution witnesses of facts does not narrate the actual assault by a sharp edged heavy weapon on Roomal Singh which is the cause of his death but is clear on the other part relating to the burning of the chappar (thatched hut) in which the body of Roomal Singh was charred and three buffaloes died because of burn injury. When the witnesses arrived, the occurrence of assault had already happened.
(j) Vijay Pal Singh who sent the wireless message (Ext. Kha-1) was not produced by the prosecution to doubt the genuineness of the same, who is stated to have died. Subhas Chand P.W.9 was produced who made a statement about the wireless message being dispatched by Vijay Pal.
(k) The scribe of the F.I.R. Bhajan Singh was not produced as a witness whereas, Raj Kumar the first informant had only put his signatures on the written report scribed by Raj Kumar.
(l) The reasons for the enmity shown in the F.I.R. and also stated to be the cause of incident for the alleged motive could not be proved by the prosecution during the course of trial.
33. Mr. Dileep Kumar, learned counsel leading the arguments on behalf of the appellants raised the following submissions before us in support of the appeal.
(a) The occurrence is an accident of fire in which Roomal Singh and three bovines died which is established from the wireless message dated 3.12.1999 (Ext. Ka-1)
(b) There is no motive on the part of the accused-appellants to commit the crime.
(c) The accused-appellants have been falsely implicated in the alleged crime because of their caste, political rivalry and enmity and on account of the alleged dispute regarding the place of construction of the Kanya Primary Pathshala i.e. Primary Girls School.
(d) P.W.4 Naipal Singh is neither a reliable nor a credible witness. His testimony is unworthy of trust and therefore liable to be discarded as he is not an eye-witness of the tourching scene and therefore, not a witness of the assault upon Roomal Singh the deceased.
(e) There is no recovery of the weapon used in the commission of the alleged offence. There is probability of the incised injury caused by an animal hoof.
(f) The statement of P.W. 1 and P.W.7 is contrary as the distance between the police station and the place of occurrence is 4 kms.
(g) The oral testimony of P.W. 5 Dr. P.K. Gupta who conducted the Post-Mortem of the carcass of the dead buffaloes is not worth reliance as the aforesaid witness in his examination-in-chief has spoken about human body.
(h) There is no mention of the F.I.R./ Case Crime Number in the Panchayatnama/inquest report.
(i) P.W.1 and P.W.4 are said to be independent witnesses, whereas, they are highly interested and partisan witnesses.
(j) The doctor who conducted the post-mortem of the body of the deceased Roomal Singh did not find the presence of any oil which could have been used. As such the medical evidence belies the ocular version.
(k) Learned counsel for the appellant has referred to various reported judgements.
34. The first question involved in the present criminal appeal is whether the occurrence in question is an incident or an accident. Our answer to the aforesaid question will decide the necessity of answering the various submissions made by the appellants' counsel for creating a dent in the prosecution case.
35. The theory put forward by the defence that the occurrence is an accident, is based upon the following facts:-
(a) The defence in support of its theory regarding the occurrence being a fire accident due to an electric short circuit relies upon the documentary evidence i.e. the photo copy of the wireless message dated 3.12.1999 (Ext. Kha-1)
(b) The wireless message relied upon by the defence has been admitted in evidence (Ext. Kha-1) and the prosecution has not got it declared as a forged or fictitious document.
(c) Further the cause of death of the deceased Roomal Singh is the ante-mortem incised wound which according to the opinion of the doctor P.W.3 Dr. Gyanendra Kumar who conducted the Post-Mortem upon the body of the deceased could also have been caused by the hoof of cattle.
(d) The defence has produced a witness namely, D.W. 1 Krishna to prove the accident caused by fire. The corroboration of this fact is sought to be supported by the fact that P.W. 7, who has proved CD No. 10 has stated that supply of electricity was available at the time of incident. The sending of the wireless message has been corroborated by the statement of P.W.9 Subhash Chand.
36. In response to the aforesaid submissions of the appellants' counsel Mr. Saghir Ahmad, the learned A.G.A. submitted before us that the theory of accident regarding the occurrence in question put forward by the accused-appellants, is wholly misconceived on the following grounds:-
(a) There is no witness produced by the defence to establish occurrence of the alleged fire accident caused by electric short circuit.
(b) The basis of the theory advanced by the appellants that the occurrence is an accident, is based upon the wireless message dated 3.12.1999 (Ext. Kha-1) which is of no evidentiary value as the person who sent the wireless message namely Vijay Pal Singh could not be examined. P.W.9 who did make a statement is not the person to prove the receipt of such information and its source. Moreover, the copy of the wireless message report is the photo copy of a document which is not admissible in evidence nor the same forms part of the case diary. As such the same cannot be treated as substantive evidence. P.W. 1 Raj Kumar has not supported the tendering of such message to anyone.
(c) The prosecution has been lodged against the appellants on the basis of the F.I.R. dated 3.12.1999 which has been proved by P.W.1 Raj Kumar, the first informant and the prosecution witnesses of fact namely, P.W.2 Ram Pal and P.W.4 Naipal Singh have clearly proved the version of the prosecution story as contained in the F.I.R. As such, the day, date and time of occurrence as well as the manner of the occurrence, stands proved which means that the occurrence is an incident and not an accident as alleged by the appellants. The post-mortem report and the presence of the accused with their weapons establishes the entire claim of events linked with each other.
(d) In the cross-examination of the prosecution witnesses i.e. P.W. 1 Raj Kumar, P.W.2 Ram Pal and P.W.4 Naipal Singh, neither any such suggestion was made nor anything adverse could be culled out in their cross-examination which could dislodge the prosecution case of the occurrence being an incident.
37. This brings us to the consideration of the wireless message (Ext. Kha-1) upon the prosecution case.
38. Learned counsel for the accused-appellants Mr. Dilip Kumar and Mr. Rajrshi Gupta, who has also been appointed as Amicus Curiae in one of the connected appeals, have vehemently urged before us that according to the defence, the occurrence is an accident, which is duly proved by the wireless message (Ext. Kha-1) of which was sent on 3.12.1999 at 4.00 a.m. and received at 4.05 a.m. The wireless message report has been filed by the defence and the same has been marked as (Ext. Kha-1). There is no reason to doubt the evidentiary value of the same. The prosecution has not got the same declared as forged or fictitious. A perusal of the wireless message clearly reveals that Raj Kumar (the first informant) had himself informed the police of the occurrence as an accident caused due to electric short circuit. This is supported by the statement of P.W. 7 to establish the supply of electricity and by P.W.9 to establish the document Ex-Kha 1. As such, the factum of occurrence being an accident is admitted to the first informant. The lodging of the F.I.R. is an after thought to falsely implicate the accused persons in an incident which never occurred in the manner as alleged by the prosecution.
39. Countering the submissions made by the appellants' counsel Mr. Saghir Ahmad, the learned A.G.A. vehemently submitted that the occurrence is an incident and not an accident as suggested by the appellants' counsel. The prosecution against the accused-appellants has commenced subsequent to the submission of the written report (Ext. Ka-1) dated 3.12.1999. Upon the receipt of the written report, the check F.I.R. dated 3.12.1999 (Ext. Ka-18) was registered at 4.05 a.m. Thereafter, the same was entered in the G.D. (Ext. Ka-19). The signature of the first informant were obtained on the check F.I.R. register (Chick Jild) in the morning. He further submits that the transmission is of the material contained in the G.D. which in the present case is the F.I.R. dated 3.12.1999. As such the prosecution which has been launched against the accused-appellants is on the basis of the F.I.R. which stands proved and not on the basis of the wireless message.
40. Adverting to the second limb of his arguments, he submits that Raj Kumar, who is alleged to have informed the police that an accident has occurred resulting in the death of Roomal Singh and three bovines on account of an accident caused due to electric short circuit about which a wireless message was sent, has nowhere stated about the factum of giving any such information to the police regarding the occurrence being an accident caused on account of electric short circuit, in the F.I.R. lodged by him. On the other hand, he has categorically denied the giving of any such information to the police for being transmitted on wireless as alleged. Thus, the first informant has been consistent through out regarding the lodging of the F.I.R. alone and the description of the occurrence as an incident and not as a fire accident. P.W.1 Raj Kumar was not cross-examined by the defence on the point of having informed the police of the occurrence as an accident alleged to be caused due to an electric short circuit, on the basis of which the wireless message was sent. What will be the effect on the failure on the part of the defence in not cross-examining a witness on a material issue, has been succinctly explained in the case of Gangabhavani (Supra) in paragraph 17, which is reproduced herein below:-
"17. This Court in Laxmibai (Dead) Thr. L.Rs. and Anr. v. Bhagwantbuva (Dead) Thr. L.Rs. and Ors. AIR 2013 SC 1204 examined the effect of non-cross examination of witness on a particular fact/circumstance and held as under:
31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses.
18. Thus, it becomes crystal clear that the defence cannot rely on nor can the court base its finding on a particular fact or issue on which the witness has not made any statement in his examination-in-chief and the defence has not cross examined him on the said aspect of the matter."
41. The learned A.G.A. then submitted that the wireless message brought on the record by the defence is not part of the case diary. As such what is not part of the case diary cannot be looked into. The wireless message which is on the record is only a photo copy. The same is neither the primary evidence nor the secondary evidence of the wireless message (Ext. Kha-1) as per sections 61 and 35 of the Indian Evidence Act. The wireless message speaks of the occurrence caused by electric short circuit as an accident which is not the case in the F.I.R. lodged by Raj Kumar. Furthermore, the admission of the document (wireless message) as an Exhibit will not by itself lead to the proof of the contents of the same and consequently of the occurrence as an accident. P.W. 9 Shubhash Chandra cannot prove the wireless message as he was not present at the time of the sending of the wireless message. The wireless message is alleged to have been sent by Vijay Pal Singh, who was not examined possibly because he had died. As such the contents of the wireless message do not stand proved in evidence. He thus concludes that the entire chain of events from the submission of the written report to the sending of the body for post-mortem clearly proves the lodging of the F.I.R., which consequently also proves the day, date time and the manner of the occurrence as mentioned in the F.I.R. Neither any suggestion was made to P.W.1 Raj Kumar nor any question was put to him in this regard during his cross-examination, regarding the wireless message. As such, the solitary document (Ex.Kha-1) relied upon by the defence in proof of the fact that the occurrence is an accident, is wholly unfounded.
42. Concluding his submissions, regarding the occurrence being an incident, the learned A.G.A. urged before us that except for the F.I.R. version of the occurrence, there is no other acceptable version. Simply a vague and fragile defence has been set up by the accused that the occurrence is an accident. No witness has been adduced by the defence in proof of the proposition that the occurrence is an accident. Therefore, it is urged that except for the F.I.R. version of the occurrence, there is no other version of the occurrence. Consequently, the factum of the occurrence being an incident is duly proved.
43. Upon evaluation of the rival submissions made before us, we find that Raj Kumar who is alleged to have informed the police of the occurrence being an accident has no where admitted in his testimony regarding the giving of any information about a fire accident caused by an electric short circuit. Raj Kumar in his testimony as P.W.1 has to the contrary categorically during cross examination on a suggestion denied the giving of any such information to the police. To the contrary he is consistent in supporting the F.I.R. version. There is no further cross-examination of the witness on the said issue. The testimony of Raj Kumar, P.W. 1 stands corroborated by the testimony of P.W. 4 We may refer to the fact that none of the accused in their statements under section 313 Cr. P. C. has given any details of the occurrence as an accident. No other evidence other than the wireless message has been adduced by the defence to prove the occurrence as a fire accident caused by electric short circuit. Thus, the factum of the occurrence being an incident, which occurred in the manner as stated in the F.I.R., stands duly proved. We entirely agree with the submissions of Sri Saghir Ahmed, learned A.G.A on this issue.
44. The case in hand for the convenience of the appreciation of evidence to ascertain the cause of death has to be divided in two parts. The first part relates to the assault upon the deceased Roomal Singh on account of which he suffered the incised injury which in the opinion of the doctor is also the cause of death. The second part is regarding the torching scene when the accused appellants tied Roomal Singh with the cot and set on fire, the Chappar (thatched hut) resulting in the death of three buffaloes and the charring of the body of the deceased Roomal Singh.
45. There is no direct ocular evidence on record relating to the actual assault causing the ante-mortem injury on the body of the deceased Roomal Singh. Accordingly, we have to examine the prosecution case, as to how far the direct and circumstantial evidence upon reconciliation and evaluation bring home the charge alleged against the accused-appellants.
46. The doctor who conducted the post-mortem upon the body of the deceased has stated in the post-mortem report that the burn injuries on the body of the deceased are post-mortem in nature and the incised injury is ante-mortem. It will be useful to refer to the nature and characteristics of post-mortem and ante-mortem burn injuries for better appreciation of the medical evidence available on the record.
47. The Apex Court in the case of Mulakh Raj & Others Vs. Satish Kumar & Others 1992 (3) SCC 43 dealt with the nature of ante-mortem and post-mortem burn injuries. On the strength of certain authorities, the Apex Court explained the distinction between the two and came to the conclusion in paragraph no. 13 as follows:-
"13. Regarding the distinction between anti-mortem and post-mortem burns, he pointed out the lines of redness, of vasication and reparative processes as distinctive features. He elaborated the same later. A reading of it gives the distinction and would be concluded thus:
1 . Ante-mortem burn injuries are characterised by the presence of burnt carbon particles (soot) in the trachea which is absent in the case of postmortem burn injuries.
2. Carbodyhaemoglobin is present in the heartblood in ante-mortem burning which is absent in case of post-mortem burning.
3. Ante-mortem burns are usually red owing to the tendency of the system to rush blood towards the injured parts for repairs, which is distinctly different from post-mortem burns which are hard and yellowish in colour.
4. Blisters are prominently present in ante-mortem burns. Some blisters may appear in post-mortem burns, but there are distinctly different from ante mortem burns, where blisters are full of protein rich fluid that contains a substantial amount of white cells, caused by the tendency of the system to rush in white cells to fight against infection. The presence of protein is so high that it becomes solid on heating. Post-mortem blisters hardly contain any protein in their fluid and whatever fluid is contained has so little protein that on heating only a faint opalescence is seen. The fluid in post-mortem blisters does not contain any white blood cells.
5. In ante-mortem burns, reparative enzymes are present in the vicinity of burnt areas as the reparative enzymes would try to repair the burnt areas. Their presence could also be used for predicting the time since the person was burnt. Various enzymes appear at the following time:
(a) Enzyme esterase - 30 minutes, (b) Leucine aminopeptidase - 2 hours approx. (c) Acid Phosphatase - 3 hours approx. (d) Alkaline Phosphatase - 5 hours. Reparative enzymes are not detected in postmortem burns.
6. Signs of infection in a burn injury only lead to the conclusion that the burn injury is anti-mortem in nature as there cannot be infection in a post-mortem burn injury, only putrefaction. Since infection occurs roughly 36 hours after the burn, one can easily predict the time since the burn injuries occurred."
blisters are full of protein rich fluid that contains a substantial amount of white cells, caused by the tendency of the system to rush in white cells to fight against infection. The presence of protein is so high that it becomes solid on heating. Post-mortem blisters hardly contain any protein in their fluid and whatever fluid is contained has so little protein that on heating only a faint opalescence is seen. The fluid in post-mortem blisters does not contain any white blood cells.
5. In ante-mortem burns, reparative enzymes are present in the vicinity of burnt areas as the reparative enzymes would try to repair the burnt areas. Their presence could also be used for predicting the time since the person was burnt. Various enzymes appear at the following time:
(a) Enzyme esterase - 30 minutes, (b) Leucine aminopeptidase - 2 hours approx. (c) Acid Phosphatase - 3 hours approx. (d) Alkaline Phosphatase - 5 hours. Reparative enzymes are not detected in postmortem burns.
6. Signs of infection in a burn injury only lead to the conclusion that the burn injury is anti-mortem in nature as there cannot be infection in a post-mortem burn injury, only putrefaction. Since infection occurs roughly 36 hours after the burn, one can easily predict the time since the burn injuries occurred."
48. This was a case where the prosecution had come up with a version that the post-mortem report indicated the death of the deceased on account of asphyxia as a result of strangulation that was ante-mortem in nature. The burn injuries of the deceased were found to be post mortem. The defense had taken a plea that 95% burn injuries indicated that the deceased had committed suicide by setting herself on fire after pouring kerosene. The Court came to the conclusion that the medical evidence conclusively established that the death was caused by violence as a result of strangulation which was beyond any shadow of doubt, and therefore the hypothesis of death being caused due to burn injuries was rejected holding that they were post-mortem in nature as the burn injuries were not the cause of death as no soot or carbon particles were found in the wind pipe of the deceased.
49. While dealing with another case reported in 1996 (7) SCC 308 Mulak Raj and Others Vs. State of Haryana, as to whether the burn injuries were ante-mortem or post-mortem, the Apex Court after shifting the evidence, came to the conclusion that it was not a case of suicide but it was a case of death on account of asphyxia coupled with the fact that the signs of the burnt area strongly suggested that the burns were post-mortem in nature. The Apex Court was faced with three medico legal reports in that case and after considering the expert evidence as appearing on the facts of the said case has ruled in Paragraph No. 16 as follows:-
".....In the opinion of the doctor death was probably because of asphyxia and the clear signs of the burnt area strongly suggested that burns were post mortem in nature. It is pertinent to note that in the light of the aforesaid observations of the doctor as recorded in the post mortem notes the police registered case Under Section 302 read with Section 34 against the appellants on 13th April 1977 itself. Still, curiously enough none of the accused was arrested and the police appeared to have adopted a lukewarm attitude. In the meantime the investigating agency appears to have solicited the opinion of the another doctor, P.W. 2 Dr. Agrawal. Senior Superintendent of Police sent a letter on 19th July 1977 to the witness to give his opinion on the post mortem report of Dr. Gupta. According to Dr. Agrawal the person may die due to suffocation as a result of inhalation of fumes and a smoke in the respiratory passages produced by burning of cloths. He further opined that the line of redness in burns caused during life may take sometime to appear and therefore it is possible that the line of redness may be absent if the death is immediate. There is medical evidence of third doctor, P.W. 7 Dr. Radha Mohan. Witness was Chief Medical Officer, Lucknow and Chief Medico Legal. Expert to the State of U.P. He was Professor Forensic Medicines in medical colleges at Lucknow and Meerut. He had seen the post mortem examination report of the dead body of Smt. Krishna Kumari. The witness clearly stated that in his opinion Krishna Kumari died before and was burnt later and the death was due to asphyxia which was a result of suffocation. His further opinion was that the burns found on the dead body were post mortem. They did not show any signs of body reaction which invariably occurs if death was due to burns. In this case the characteristic attitude of the body known as the pugilistic attitude was not present. In deaths due to burns this sort of attitude is found."y take sometime to appear and therefore it is possible that the line of redness may be absent if the death is immediate. There is medical evidence of third doctor, P.W. 7 Dr. Radha Mohan. Witness was Chief Medical Officer, Lucknow and Chief Medico Legal. Expert to the State of U.P. He was Professor Forensic Medicines in medical colleges at Lucknow and Meerut. He had seen the post mortem examination report of the dead body of Smt. Krishna Kumari. The witness clearly stated that in his opinion Krishna Kumari died before and was burnt later and the death was due to asphyxia which was a result of suffocation. His further opinion was that the burns found on the dead body were post mortem. They did not show any signs of body reaction which invariably occurs if death was due to burns. In this case the characteristic attitude of the body known as the pugilistic attitude was not present. In deaths due to burns this sort of attitude is found."
50. Thus, upon evaluation of the burn injuries found on the body of the deceased Roomal Singh, in the light of the view expressed by the Apex Court, regarding the nature of Post-Mortem/Ante-Mortem burn injuries, we are of the view that the burn injuries found on the body of the deceased Roomal Singh are Post-Mortem in nature. The absence of any carbon particle or soot in the trachea establishes the same.
51. The ante-mortem injury found on the body of the deceased by the Doctor who conducted the post-mortem on the body of the deceased is said to be a single incised wound of 12 cm. x 7 cm bone seated with the left parietal bone broken. Looking at the size of the injury, the nature of the injury and the place of injury, we pondered over the suggestion made by the doctor that the incised injury could have been caused by the hoof of cattle. Considered from all angles, the only conceded position that emerges is that the cause of death is the ante-mortem injury on the head. The cross examination version of the doctor about the injury being caused from animal hooves is clearly improbable because it is an incised wound of 12cm x 7cm. bone cut deep as per the post-mortem report and explained by the doctor in his statement dated 17.4.2008 and 14.1.2010. The doctor has no where stated as to the hoof of which animal could have caused such a bone cut deep injury of such a along and deep dimension. He has in his examination-in-chief categorically stated that the injury was probable and possible by an assault of a sharp edged weapon like a 'Tawal' or a 'Daraanti'. Again in this cross-examination on 17.4.2008 he admitted that a sharp edged heavy weapon could be the cause of injury. On being pointedly asked as to whether the injury cold be caused by a hoof, he categorically stated that it could not be caused by a simple trampling or impact of a hoof. He however stated that a violent strong kick of a hoof may cause such a injury. We see no rational in the suggestion made by the doctor. The same does not stand to reason in our appreciation of the same. It is not borne out from any evidence that the hooves of the animals had any sharp edges that could have caused injuries parallel to that of a sharp edged heavy weapon of the dimension as in the post mortem report of the deceased. The post mortem report of the dead animals no where indicates examination of hooves or the existence of any device like a horse-shoe, the metal whereof can be imagined to have caused an incised injury on impact. The veterinary doctor, Promod Kumar Gupta, PW-5 in his deposition on 15.04.2008 has opined that an incised wound can be caused if the hoof of an animal is sharpened due to constant rubbing upon regular movement. There is no suggestion or cross examination by the defence put to PW-5 to disclose as to whether the deceased animals were possessed of such sharp edged hooves or not. If the defence was proceeding for creating a doubt on this score, then the burden lay on it to display a reasonable doubt on such a probability by soliciting disclosure either through evidence or it's cross-examination to bring forth material to support such hypothesis. The burden of proving a defence, which is not the case of the prosecution, has to be discharged by the defence satisfactorily and not superficially by corroborating such a suggestion through material evidence and not by stopping short by simply floating a probability.
Then there is another dimension to this possible visualization of the injury being caused by animal hooves. It is the admitted case of the prosecution that three animals were found dead due to burn injuries and two animals had been injured, all of them of buffalo progeny. They were all tethered under the same thatched shed where the deceased met his fate. It is quite probable and natural that animals in the heat of scorching flames must have attempted to escape, but they were torched inside without any opportunity to escape. The thatched structure was a 'chappar' with a 3ft high enclosure on two sides but not sealed altogether. It is therefore probable that they were tethered to their poles and they could not cut themselves loose to escape. There is no evidence to demonstrate that the deceased in this chaotic scene of torching was amenable to the reach of stray running cattle and their hooves. There is no evidence of the deceased being kicked or trampelled by the animals. It also does not inspire a reasonable belief that if there were five animals running helter and skelter to save their lives, their behavior would be such so as to pointedly cause one injury only on the forehead of the deceased without any similar or lesser impacts on the softer parts of the body of the deceased that does not indicate any other external incision or deep cut or injury to suggest the impact of the hooves of the animals. It is therefore a mere speculation without supporting material to call upon us to eschew the probability of an injury caused by the hoof of an animal. The inquest report has been witnessed by five persons, none of whom have been examined as witnesses, of fact but they have opined therein that due to the burnt status of the body of the deceased, no external injuries were visible which indicates that the external injuries to suggest a hoof injury was not available. It is only after the post mortem report on discovery of the ante mortem injury that a speculative argument as an alternative to counter the use of a sharp edged weapon has been set up by the defence.
52. While dealing with the issue as to whether the medical opinion given by the doctor is to be believed ipso facto or the Court can look into the nature of the report and make its own assessment, the Apex Court in the case of Gangabhavani Vs. Rayapati Venkat Reddy & Others 2013 (15) SCC 298 has given the following caution in paragraph 7. The Apex Court in the aforesaid context has ruled as follows:-
"7 . It is a settled legal proposition that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution case and unless it is reasonably explained may discredit the entire case of the prosecution. However, the opinion given by a medical witness need not be the last word on the subject. Such an opinion is required to be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all an opinion is what is formed in the mind of a person regarding a particular fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts, it is open to the Judge to adopt the view which is more objective or probable. Similarly, if the opinion given by one doctor is not consistent or probable, the court has no liability to go by that opinion merely because it is given by the doctor. "It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant' ". Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent Assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility."
53. In view of the above discussion, we find that the ante-mortem incised injury found upon the body of the deceased was caused by a sharp edged weapon which appears to have been used with lethal force as is apparent from the nature of the ante-mortem incised injury detailed in the post-mortem report. We reject the argument of the injury being caused by an animal hoof as suggested to the doctor by the defence.
54. We now come to the issue, whether the chain of events, leads us to one inference that the accused persons have committed the murder of Roomal Singh with a common object so as to bring it within the definition of Sections 300 and 149 IPC. The reverse order of appraisal of the circumstances will be helpful in the aforesaid exercise and accordingly, we proceed to examine the veracity of the circumstances of the case in hand. As already discussed above, the F.I.R. having been proved, the day, date, time and manner of occurrence relating to torching also stands proved. Secondly, the recovery of the dead body of Roomal Singh (deceased) the burnt carcass of the three bovines, the recovery of burnt articles, earth mixed with blood, clearly prove the place of occurrence. Thirdly, the defence having failed to prove the occurrence being an accident, the prosecution case regarding the occurrence being an incident, is liable to be accepted. Fourthly, the defence has not come out with its version of the manner of occurrence nor any other plausible hypothesis can be construed in the given circumstances. Thus, the only version of the occurrence which also stands proved, is the F.I.R. version (of the occurrence) of the prosecution case. Fifthly, the first informant Raj Kumar has been examined as P.W. 1, whose testimony has been consistent through out and is trustworthy. Sixthly, the testimony of P.W.1 Raj Kumar stands corroborated by the testimony of P.W.2 and P.W.4 who are reliable and credible witnesses.
55. This takes us to the critical part of the occurrence. According to P.W. 1 Raj Kumar who is also the first informant, has categorically stated the presence of the accused persons at the place of occurrence. Accused Bhagat is stated to be armed with Pharsa (a sharp edged weapon). He has further stated that Roomal Singh was profusely bleeding, and was in pain and agony. Thereafter, the accused persons tied Roomal Singh with the cot, poured oil over him and set the Chappar (thatched hut) on fire. This part of the testimony of P.W.1 Raj Kumar clearly establishes three circumstances, (a) when Raj Kumar P.W. 1 arrived at the place of the occurrence, his father Roomal Singh was lying bleeding, (b) all the accused persons who were armed with different weapons, were present, (c) one of the accused Bhagat was armed with Pharsa (a sharp edged weapon) which can cause an incised injury of the nature found on the deceased that is described in the post-mortem report.
56. The first informant Raj Kumar has categorically stated that the occurrence was witnessed by him from a distance of 80 steps. At the time of his presence and before the Chappar (thatched hut) was torched Roomal Singh his father was lying bleeding and was also in pain. There is no inconsistency upto this part in the prosecution case.
57. The important chain in between the act of actual assault with a sharp edged heavy weapon and the act of torching is the time gap between the two. The nature of injury caused upon the body of Roomal Singh, the effect of the same on the body of Roomal Singh, stands supported by the evidence of Raj Kumar that Roomal Singh was lying bleeding and was in pain. This goes to show that the act of assault was committed a very short time before the arrival of P.W.1 Roomal Singh at the place of occurrence.
58. Consequently, a strong circumstance of last seen comes into play from which it can be interfered that the last time P.W.1 Raj Kumar saw his father, he was lying bleeding on account of the incised injury suffered by him and the accused persons, one of whom Bhagat was armed with Pharsa (a sharp edged weapon) were present near Roomal Singh. The death of Roomal Singh therefore appears to have taken place with the arrival of P.W.1 but before being consumed by flames as no carbon particles have been found in the trachea of the deceased.
59. The judgment in the case of Mulakh Raj Vs. Satish Kumar (supra) has also dealt with that whenever a case hinges upon circumstantial evidence, then the unbroken chain of links leading to only one inference that the accused had committed the crime should be established. Further, if any other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances then the accused would be entitled to the benefit of a doubt. The guidelines laid down in that case by the Apex Court in Paragraph No. 4 are as follows:-
"4................Undoubtedly this case hinges upon circumstantial evidence. It is trite to reiterate that in a case founded on circumstantial evidence, the prosecution must prove all the circumstances connecting unbroken chain of links leading to only one inference that the accused committed the crime. If any other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances, the accused would be entitled to the benefit. What is required is not the quantitative but qualitative, reliable and probable circumstances to complete the chain connecting the accused with the crime. If the conduct of the accused in relation to the crime comes into question the previous and subsequent conduct are also relevant facts. Therefore, the absence of ordinary course of conduct of the accused and human probabilities of the case also would be relevant. The court must weigh the evidence of the cumulative effect of the circumstances and if it reaches the conclusion that the accused committed the crime, the charge must be held proved and the conviction and sentence would follow."
60. Similarly in the case of State of Himanchal Pradesh Vs. Raj Kumar referred to above, the Apex Court has made the following observations regarding evaluation of circumstantial evidence:
"9. Prosecution case is based on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused. Moreover all the circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the Accused and totally inconsistent with his innocence.
10. In a case, based on circumstantial evidence, the inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, it was held as under:"
And then concluded in Paragraph No. 18 as follows:-
"18. As appointed out earlier, in a catena of judgments, this Court held that when conviction is based on circumstantial evidence, there should not be any gap in the chain of circumstances; the accused is entitled to the benefit of doubt."
Thus, judged in the light of the parameters laid down by the Apex Court for appreciating and relying upon the evidence, the inescapable conclusion from the circumstances as discussed above, remains unchanged.
61. The chain of events being unbroken and linked with each other, lead only to one inference and that the accused persons with a common object had assembled to assault Roomal Singh, causing an incised injury which resulted in his death. The evidence adduced by the prosecution is not featureless nor is it an agonizing suspense so as to disintegrate the truth. The presence of all the appellants and their participation in commission of the offence has been narrated by the prosecution witnesses. The extent of torching the place by setting it on fire, has been testified by the witnesses to have been caused in a planned way. P.W.1 has stated that he saw everything from a close distance. Accused Arun and Ravindra alongwith another tied the deceased to the cot. Akbar exhorted Arun to sprinkle oil, who did it and then Bhagat lighted the thatched roof and also the deceased. He also stated that Arun who had a stick in his hand did not assault his father but he had sprinkled oil on him. The burnt status of the body, the timing of the incident and the duration of injury are all a direct evidence of the post assault commonly intended object of the appellants before us who were seen at the place of occurrence and were clearly witnessed in their actual participation that was a clear sequence to destroy every possible evidence so as to make the incident look like an accident. The circumstances, unfortunately uncover the real intention of the accused that stands clearly corroborated by the ocular testimony of the witnesses of fact and the medical evidence that does not raise any doubt strong enough to disbelieve the participation of all the appellants.
62. Thus, in the absence of any such evidence adduced by the defence, disputing or doubting the aforesaid circumstances nor there being any evidence to explain the reason for the presence of the accused persons at the place of occurrence, leads to the inescapable conclusion that after assaulting Roomal Singh with a sharp edged weapon, the act of torching was committed to wipe out the evidence, that was likely to prove the murder of Roomal Singh.
63. Learned counsel for the appellants also submitted that P.W.2 and P.W.4 are said to be independent witnesses whereas, they are highly interested and partisan witnesses. Before proceeding to consider the aforesaid submission urged by the learned counsel for the appellants, it will be useful to reproduce the following observations made by the Apex Court in paragraphs 11, 12 and 13 of the judgement in the case of Gangabhavani (Supra):-
"11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.
12. In State of Rajasthan v. Smt. Kalki and Anr. AIR 1981 SC 1390, this Court held:
5A. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased"......For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W. 1 had no interest in protecting the real culprit, and falsely implicating the Respondents.
13. In Sachchey Lal Tiwari v. State of U.P. AIR 2004 SC 5039, while dealing with the case this Court held:
7....Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence.
14. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased."
64. Similarly, the Apex Court while dealing with contradictions, variations, exaggeration and embellishments noted the previous decision of the Apex Court and held as follows in paragraph 9 in the case of Gangabhavani (Supra) referred to above:-
"9. In State of U.P. v. Naresh (2011) 4 SCC 324, this Court after considering a large number of its earlier judgments held:
In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
A similar view has been reiterated by this Court in Tehsildar Singh and Anr. v. State of U.P. AIR 1959 SC 1012; P udhu Raja and Anr. v. State, Rep. by Inspector of Police : JT 2012 (9) SC 252; and Lal Bahadur v. State (NCT of Delhi) : (2013) 4 SCC 557).
10. Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence."
65. Similarly, in respect of an interested witness, the Apex Court in the case of State of Rajasthan Vs. Smt. Kalki and another, 1981 (2) SCC 752 has clearly held that there is a distinction between related and interested witnesses. The Apex Court held that the witness who is a natural one and is the only possible witness in the circumstances of the case, can not be said to be an interested witness. Again in the case of Brahm Swaroop and another Vs. State of U.P., 2011 (2) SCC (Crl.) 923 it was held that merely because the witnesses are closely related with the deceased victim, their testimonies can not be discarded. Their relationship to one of the parties is not a factor that affects the credibility of a witness. More so, a relation would not conceal the actual culprit and make allegations against an innocent person. In the case of Bhagwan Jagan Nath Markad and Others Vs. State of Maharashtra, 2016 (10) SCC 537 the Apex Court regarding the credibility of a witness has held that while appreciating the evidence of a witness, the Court has to assess that upon the reading of a evidence as a whole, it is truthful. In doing so, the Court has to keep in mind the deficiencies, drawbacks and infirmity to find out whether such discrepancies shake the truthfulness.
66. Thus, the submissions made by the counsel for the appellants, challenging the credibility and reliability of the aforesaid two witnesses being interested and partisan witnesses has to be judged in the light of the observations made by the Apex Court as above.
67. The two witnesses, namely P.W.2 and P.W.4 have not been cross-examined on any of the issues involved in the present criminal appeal i.e. relating to the occurrence being an accident, the manner of occurrence, the presence of the accused persons at the time and place of occurrence. None of the two witnesses could be contradicted with their previous statements in terms of Section 145 of the Indian Evidence Act. What was attempted before the Court was to draw a parallel between the statements of the aforesaid two witnesses and term the same as inconsistent or contradictory. The argument so raised is totally illusionary. Both the prosecution witnesses have remained consistent in material particulars which go to the root of the case. Their testimony cannot be diminished or diluted by christening them as partisan or interested witnesses, as no attempt was made to dislodge their credibility and reliability in their cross-examinations by the defence nor any foundation in that regard was laid in the statement of the accused recorded under Section 313 Cr.P.C.
68. It was then urged that the there is no motive on the part of the accused-appellants to commit the crime. The submission so made is wholly misconceived because of the direct evidence with regard to the act of torching committed by the accused-appellants with a common object. The circumstantial and direct evidence which have been noted herein above, clearly establish the involvement of the accused-appellants in the act of assault upon the body of Roomal Singh causing a deep incised injury which ultimately resulted in his death. The immediate surrounding circumstances clearly connect the high probability of the act of assault having been committed that knits it closely, making it a part of the same incident in the presence of the accused. It is by now well settled that in the case of direct evidence, the question of motive becomes irrelevant. As such, the submission raised by the appellants' counsel can hardly cause a dent in the prosecution case.
69. With regard to the non-recovery of any sharp edged weapon used in the commission of crime, it can be said that it is a defect in investigation but certainly not a ground to award acquittal to the accused-appellants.
70. The first informant Raj Kumar P.W.1, in his testimony, has categorically stated that the scribe of the F.I.R. dated 3.12.1999 is Bhajan Singh and thereafter, the written report was submitted with the police for lodging of the F.I.R. It is on the basis of the aforesaid that the F.I.R. was lodged. P.W.9 Subhas Chandra has categorically proved the F.I.R., and consequently the same has been marked as Ex. Ka-18. Therefore, the submission made by the counsel for the appellants that since the scribe of the F.I.R. has not been produced, the F.I.R. has not been proved, is complete imagination.
71. The timing of the lodging of the F.I.R and the commencement of the Panchayatnama i.e. at 4:05 am was pressed in support of the proposition that the aforesaid two actions could not have been performed at the same time. It was then urged that the proceedings of the Panchayatnama shall be subsequent to the lodging of the F.I.R. and therefore, the F.I.R. is ante-timed. Once the day and time of occurrence mentioned in the F.I.R. has been proved, the aforesaid proposition canvassed, on behalf of the defence, is only imaginative as some discrepancy in the mentioning of the time of commencement of the inquest, will not by itself wipe out the genesis of the occurrence.
72. Having dealt with the various facets of the prosecution case and the defence put forward by the accused persons, there is no room to delve in the last refuge of defence set up by the accused-appellant that the prosecution has failed to prove its case beyond reasonable doubt. From the discussions made herein above, it is explicitly clear that the prosecution has proved its case to the Core and beyond any doubt much less a reasonable doubt. The theory of reasonable doubt in the prosecution case and its effect has recently been diluted by the Apex Court in the case of Devendra Pal Singh V. State of NCT of Delhi and Another reported in 2002 (5) SCC 234. Para 53 and 54 of the judgment which deals with the aforesaid issue is extracted herein below for ready reference:-
"53. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence.Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law.(See Gurbachna Singh v. Stapal Singh and Ors.). Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava).
54. If a case is proved perfectly it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent form being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh Anr. v. State (Delhi Admn.)]. Vague hunches cannot take place of judicial evaluation.
"A Judge does not preside over a criminal trial,merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties."(Per Viscount Simon in Stirlant v. Director of Public Prosecution (1944 AC(PC) 315) quoted in State of U.P. v. Anil Singh)."
73. Consequently, the doubts raised by the appellants' counsel in the prosecution case and also pressed for the acquittal of the accused-appellants are fanciful doubts, which cannot form the basis of acquittal. The Apex Court has deprecated the practice of granting acquittal on the basis of fanciful doubts, as is apparent from the observations quoted herein below made in Criminal Appeal No. 31 of 2018 State of Himanchal Pradesh Vs. Raj Kumar, decided on 8.1.2018,:-
"15. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to be truthful in the given circumstances of the case. Once that impression is formed, it is necessary for the court to scrutinize the evidence more particularly keeping in view the drawbacks and infirmities pointed out in the evidence and evaluate them to find out whether it is against the general tenor of the prosecution case. Jeewan Lal (PW-1) is the son of the deceased Meena Devi residing with her and the Accused in the same house, and a natural witness to speak about the occurrence. Evidence of PW-1 is cogent and natural and is consistent with the prosecution case........"
74. In view of the discussions made herein above, we are of the considered opinion that the impugned judgement and order dated 26.10.2010, passed by the Additional Sessions Judge/Special Judge, SC/ST Act, Meerut in S.T. No. 50 of 2003 (State Vs. Om Pal Singh and 4 Others) arising out of Case Crime No. 61/332/99 under sections 147, 148, 149, 302, 429, 436 I.P.C. and section 3 (1) (10) SC/ST Act, Police Station Incholi, District Meerut, is not liable to be interfered with. Consequently, the appeal fails and is hereby dismissed. The accused-appellants are on bail. Their bail bonds are cancelled and the sureties discharged. All the accused-appellants shall be taken into custody forthwith to serve out the sentence already awarded. A copy of this order be sent to the C.J.M., Meerut in advance for immediate compliance.
Order Date :- 7.3.2018 Arshad