Allahabad High Court
State Of U.P. vs Tej Pal on 2 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1618, 2019 (6) ALJ 555
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED Court No. - 47 Case :- GOVERNMENT APPEAL No. - 2219 of 1984 Appellant :- State Of U.P. Respondent :- Tej Pal Counsel for Appellant :- A.G.A. Counsel for Respondent :- Abhay Raj Singh,A.P. Singh Raghav Hon'ble Ram Surat Ram (Maurya),J.
Hon'ble Rajiv Gupta,J.
( Per: Rajiv Gupta,J.
This Government Appeal has been preferred by the State of U.P. against the judgment and order dated 10.5.1984 passed by IInd Addl. Sessions Judge, Bulandshar in S.T. No. 517 of 1983 whereby the accused-respondents have been acquitted for the offences punishable under section 147, 302/149 and 201/511 I.P.C.
Briefly the prosecution case as unfurled in the F.I.R. is that on 22.5.1983 the village Chaukidar of village Kiratpur, Khajan had informed the complainant in his village Vikupur that niece of his wife Smt. Shilwati has been done to death by her family members and her dead body is lying in a room. On getting this information he reached at the village Kiratpur at about 7.00 p.m. and found that the dead body of Shilwati was lying in a room and all the family members had disappeared after locking the house. It is further alleged that residents of village Jai Singh son of Mukandi Singh, Pratap Singh son of Jaipal Singh, Mitra Singh son of Bola Singh, Pyare Lal son of Indra Pal Sharma, Himmat Singh son of Girdhari Singh disclosed that Shilwati was assaulted by her husband Ramesh, Tejpal, Viresh, Babli , Vidya and Ramesh at about 1.00 p.m. in the afternoon and by strangulating her she has been done to death and the dead body has been set ablaze by pouring kerosene oil. The said -2- witnesses have further disclosed that when these persons were assaulting the victim then on the alarm raised by Shilwati, being neighbours, they reached inside the house and saw the incident by peeping through the grill and has seen them committing the murder of the victim. On account of darkness he continued to keep vigil over the dead body through out the whole night so that the accused persons may not remove her dead body. On the basis of the said written report F.I.R. was lodged on 2.5.1983 under section 147, 302/149 and 201/511 I.P.C. at police station Chhatari, District Bulandshahar. Formal check report No. 63 was drawn by Head constable Bhagwat Prasad Sharma which was registered vide G.D. at Sl No. 14. After registration of F.I.R. investigation of the case was handed over to S.I. J.S. Rana who proceeded to the place of incident and recorded the statements of the informant Gajendar Singh and conducted Panchyatnama which is marked Ex. Ka. 6 and thereafter prepared Challan Lash, Photo Lash, Chithi R.I, Report C.M.O. marked as Ex. 7 to 10 and thereafter handed over dead body to Head Constable Shivraj Singh and Yashvir Singh for taking to mortuary for post mortem and thereafter prepared site plan and has also collected half burnt match sticks and match box from near the dead body. A canister containing kerosene oil was also recovered from the spot which was taken in custody and Fard was prepared. He also collected blood stained earth and sealed in a separate container. Thereafter he recorded the statements of relevant witnesses Pyarelal, Pratap Singh and Chaukidar and thereafter on 24.5. 1983 the investigation was transferred to Harvansh Singh, P.W.6, who recorded the statement of Pyare Lal and tried to apprehend the accused -3- persons who had absconded and proceedings under section 82/83 was initiated against them. On 17.6.1983 he concluded the process of investigation and submitted charge sheet against the accused. On 24.5.1983 an autopsy was conducted on the person of the deceased by P.W.5, Dr. S.K. Dutta who however no ante mortem injuries on her person was found and in the opinion of Doctor the death was as result of strangulation. The relevant statement of the doctor regarding the injuries on the person of the deceased may noted as follows:-
1& 'kjhj ij e`R;q ds iwoZ vkbZ dksbZ pksVs ugh FkhA iwjk 'kjhj f}rh; o r`rh; fMxzh cuZ ls tyk gqvk FkkA mldh tcku ckgj fudyh gqbZ FkhA vka[ksa Hkh ckgj fudyh gqbZ Fkh ,oa peM+h txg&txg ij vyx FkhA 2& vkUrfjd ijh{kk esa xys dh Hyoid dh gM~Mh VwVh gqbZ FkhA xys dh ekal is'kh;kW [kwu vkywnk FkhA lkal dh uyh vkokt dh uyh Hkh [kwu vkywnk Fkh nksuks QsQM+s dUtsfLVM FksA isV esa nks vkSUl v/kipk [kkuk FkkA esjh jk; esa mldh e`R;q xyk ?kksVuk o tykus ls lEHko gSA ,oa mlds ejs gq;s djhc 1&1@2 ls 3 fnu gqvk Fkk mldh e`R;q 22-5-83 dks 1 ih0,e0 ij gksuk lEHko FkhA e`rd dh pksVs lk/kkj.kr;k o izd`frd :i ls e`R;q dkfjr djus ds fy;s Ik;kZIr FkhA ej.kksijkUr ijh{kk dh fjiksVZ eSus mlh le; rS;kj dh Fkh tks esjs lkeus gS lgh esjs ys[k o gLrk{kj esa bl ij izn'kZ d&4 Mkyk x;kA Since the offence mentioned in the charge sheet were exclusively triable by court of Sessions, learned C.J.M. Bulandshahar committed the case to the court of Sessions for trial of the accused where case was -4- registered as S.T. No. 517 of 1983, State Vs. Tejpal who made over thecase for trial to the court of IInd Additional Session Judge, Bulandshahar. The trial court on the basis of material on record and after affording opportunity of hearing to the prosecution as well as accused person framed charge against the applicant under section 147, 302/149 and 201/511 I.P.C. The accused-respondents abjured the charges framed against them and claimed trial.
The prosecution in order to establish the charges framed against the accused examined as many as seven witness, P.W.1, Gajendra Singh, P.W.2, H.C. Bhagwat Prasad, the scribe of the check report and G.D. Entry, P.W.3, Pratap Singh, P.W.4, Pyare Lal eye witnesses of the incident, P.W.5 Dr. S.K. Dutta who performed autopsy on the person of the deceased and P.W.6, S.O Harbansh Singh who concluded investigation and submitted charge sheet and P.W.7, S.I. Jagjit Singh who started process of investigation. The documentary evidence were also filed. After concluding the evidence all the accused persons were examined under section 313 Cr.P.C. who denied their participation in the incident. Tejpal in his statement under section 313 Cr.P.C. has categorically stated that an old litigation was going on between him and Prahalad, the uncle of Gajendra and others due to which he has been falsely implicated and the witness belong to one and same party. The accused Vidya Devi and Babli, however, stated that they had gone to attend marriage party and returned back only after coming to know about murder of Shilwati. The accused Ramesh son of Mahendra stated that he had gone out to Lalpur in district Etah to attend marriage party of his cousin Dharamvir and he -5- had no concern whatsoever with the accused persons and his house is situated at a distance of two furlongs from the house of other accused person. The accused Ramesh son of Tejpal stated that at the time of incident he has been working in Life Insurance Corporation at Delhi and only on getting information about death of his wife he had reached Milak. Ramesh son of Mahendra Singh has also filed a written statement that his cousin Sri Prem Shanker Chauna was doing pairvi in the case of the complainant's cousin, Prahlad Vs. Tejpal and on account of this enmity he has been falsely roped in. Ramesh son of Mahendra Singh had also brought on record certain documents in his defence, however, no oral evidence was led in defence.
Learned IInd Additional Sessions Judge, Bulandshahar after hearing submissions of learned counsel for parties and scrutinising the evidence on record both oral as well as documentary acquitted the accused persons of all charges, hence this appeal.
Heard Shri Anil Kumar Kushwaha, learned A.G.A and Shri A.P. Singh Raghav for the accused-respondents.
Learned A.G.A. has submitted that the prosecution witlessness have fully supported the prosecution story in all material particulars and the defence has not been able to point out any material contradiction in their statement which goes to the root of the case. The medical also completely corroborates the prosecution story, the trial court without appreciating entire evidence on record in right perspective has illegally recorded the finding of acquittal against the accused persons, therefore -6- impugned order of acquittal be set-aside and appellant be convicted.
Per cantra, Shri A.P. Singh Reaghav learned counsel for the accused-respondents has submitted that on perusal of entire evidence brought on record by the prosecution particularly evidence adduced by P.W. 1, Gajendra Singh, P.W.3, Pratap Singh and P.W.4, Pyare Lal, it is evident that prosecution has not been able to bring home guilt against the accused-respondents beyond reasonable doubt particularly in respect of their presence at the time of incident and material contradiction in their statement as such the present appeal has no force and is liable to be dismissed. Now analysing the statement of the witnesses adduced during the course of trial we find that P.W.1, Gajendra Singh in his statement has deposed that on the date of incident, Chaukidar of village Keeratpur came to him whose name is probably Badri and informed him that Shilwati has been done to death by the accused-respondents and her dead body is lying in a room in their house. The said information is said to be given at 6.00 p.m. and he reached village Keeratpur at 7.00 p.m. and found the dead body lying in the room. Number of persons of the village, namely, Jai Singh, Pratap Singh, Mitra Singh, Pyare Lal and Himmat Singh were found standing there who informed him that Shilwati was strangulated by the accused-respondents and thereafter by pouring kerosene oil she was set ablaze, however, on account of delay on the day he had not gone to lodge report and on the next morning at about 8.00 a.m. has lodged the report which was scribed by Chandrapal. In the cross examination he has categorically stated that litigation in respect of agricultural land has been going on between him and Tejpal accused and their relations are highly -7- strained and they are not on talking terms on account of dispute. He has further admitted the fact that other sister of the deceased Shilwati was also married to Viresh son of Tejpal and her parents had not initiated any proceeding against the accused persons and had attended Terahvi ceremony of the victim. The said witness has further deposed that scribe Chandrapal has only written certain facts in his report and some other fact narrated by him at the time of dictating the report has not been written by him, however, it is admitted by him that the said report was signed by him. He has further stated that on account of fact that by the time he reached the place of incident it was late evening as such he did not send any one to lodge the report. He has further admitted the fact that in the night two police constables had reached the village and had slept there. He has further stated in his cross examination that the Station Officer has dictated the report to Chandrapal and he has signed the said report, however, in his cross examination he has further stated that Chandrapal had written the report on his dictation in the village and by mistake in the cross examination he has stated that the report was dictated by the Station Officer. From the said statement of P.W.1, Gajendra Singh admitting that the F.I.R. was dictated by the Station Officer to Chandrapal and was only signed by him shakes the very credibility of the prosecution case and makes the F.I.R inadmissible and it leads to reasonable inference that F.I.R. was drafted by the police after consultation and deliberation and does not contain the natural and correct version of the incident. The subsequent correction made by P.W.1 that by mistake he had earlier stated that F.I.R. was lodged at his -8- dictation does not inspire confidence and makes prosecution story highly doubtful. Further the factum stated in the cross examination by P.W.1, Gajendra Singh that other sister of Shilwati was married with Viresh son of Tejpal but being real sister of the deceased she has not come forward to corroborate the prosecution case even parents of the victim Shilwati though attended the Terhvi ceremony of the victim Shilwati but they did not lodge any report against the accused-respondents further creates serious dent in the prosecution story. As per testimony of P.W.1, Gajendra Singh, present incident of causing death of the victim Shilwati is on account of non-fulfillment of demand of dowry from parents of the deceased. Had the reason for causing the death by strangulation being non-fulfillment of demand of dowry then certainly the victim's parents would have lodge the report against the accused-respondents, however, they had not lodged any report against the accused-respondents and even attended Terhvi ceremony of the victim, Shilwati which shows that the entire prosecution story has been cooked up and concocted by P.W.1, Gajendra Singh who admittedly was on inimical terms with the accused persons as such in the backdrop of such circumstances the testimony of P.W.1, Gajendra Singh does not inspire confidence and moreover he is not an eye witness of the incident and has built up the prosecution case on hearsay. Even village Chaukidar has not informed him that offence was committed by the accused-respondents and from the said circumstance it can be reasonably inferred that by the time the information about the death of victim was sent by the village Chaukidar, the name of the accused persons were not known. Further more the factum that the F.I.R.-9-
was not lodged on the date of incident itself but on the next date at 8.00 p.m. for which a lame excuse has been given by P.W.1, Gajendra Singh that since it was late evening as such he did not send any one to lodge the report and had stayed in the village to take care of the dead body so that it may not be removed by the accused persons also does not inspire confidence. In view of the own statement of the first informant that two police constables had reached place of incident in the evening itself and had stayed during night hours at the place of incident in the backdrop of the said circumstances there is no reason for not to lodge report promptly but on the next date which clinchingly established the fact that by that time the actual accused persons were not known and only after due deliberation and consultation on the next date, the F.I.R. was lodged which creates further dent in the prosecution story. In the cross examination P.W.1, Gajendra Singh has further admitted the fact that number of criminal cases has been lodged against him and looking to his shady character the testimony of P.W.1, Gajendra Singh can not be said to be of unimpeachable nature and being inimical witness the possibility of falsely implicating the accused-respondents can not be ruled out and therefore, trial court has rightly held that the said witness is not reliable witness and discarded his testimony.
Now coming to the testimony of P.W.3, Pratap Singh who is said to be taking his meal on his roof at the time of incident and hearing the suppressed scream from the house of Tejpal where the incident has taken place he is said to have been attracted and reached at the place of incident where Jai Singh, Mitra Singh, Pyare Lal and Himmat Singh are -10- also said to have reached. He is said to have seen the incident inside the room from outside of the close door by the grill and is said to have seen the accused, Vidya and Babli holding the victim by her leg whereas Viresh was holding her arms and Ramesh was sitting on her chest and tried to strangulate her and one person was holding her head and when he asked the accused persons not to commit such crime then the accused Tejpal stated that it is their household affairs and asked him to get away. He has further stated that while Shilwati was being strangulated other persons were standing there. After completing the act of causing the death of victim the doors were opened and Ramesh brandshing his country made pistol asked them to flee away else they would be done to death and on account of fear they all retrieved, however, on sniffing smell of kerosene oil and burn clothes they again reached at the place of incident and found that the accused Vidya and Babli were sitting at the door while other accused were not there. He found that the victim Shilwati was lying on the ground and smoke emanating from there. Shilwati was half burnt and had died and thereafter they called village Chaukidar, Khajan and send him to his relative Gajendra Singh, for calling them, however, in the cross examination the said witness has clearly stated that the person holding head of the victim was alike to accused Mahendra, however he can not definitely state about it. He further denied to have stated to the Investigating Officer that accused Ramesh was holding head of Shilwati and thus his testimony so far as accused Ramesh is concerned becomes highly doubtful and is not worth credence. The evidence adduced by P.W.3, Pratap Singh to the extent that on hearing the suppressing scream -11- of the victim he was attracted to the place of incident also does not inspire confidence in as much as no other neighbours have turned up on the suppressed scream of the victim. Moreover, in his statement to the Investigating Officer he had stated that he was attracted to the place of incident on hearing full throated cries of the victim. This material contradiction further renders his presence doubtful. There is also material contradiction in the statement of this witness to that of P.W.4 Pyare Lal, regarding actual place from where they are said to have witnessed the incident inside the room. P.W.3, Pratap Singh claims to have seen the incident through western grill whereas according to P.W.4, Pyare Lal he had witnessed the incident from eastern grill. As per the site plan the incident of strangulation of the victim is said to have taken place close to the door of the room and in the said circumstances the incident would not be visible from both west and east which are passing as north direction. There is also material contradiction in the statement of P.W.3, Pratap Singh and P.W.4, Pyare Lal which further creates serious doubt about their presence at the time of incident and i.e. in respect of fact that at the time of committing the incident in the statement of P.W.3, Pratap Singh the accused Ramesh was sitting on the chest of the victim Shilwati, however, there is no whisper that at the relevant time he was holding Katta and in his statement it is stated that Ramesh while making his escape good asked him to run away by brandshing Katta, however, in the statement of P.W.4, Pyare Lal it has been categorically stated that while accused Ramesh was sitting on the chest of the victim, Shilwati he was holding a Katta in his right hand. The factum of holding Katta by co--12-
accused Ramesh also does not inspire confidence in view of the fact had he been armed with Katta he would have certainly used the same for causing death of the victim rather than to cause her death by strangulation particularly when the witnesses were also present at the said time. The testimony of the said witness also stands falsified from another circumstance as according to him when the accused persons were strangulating the victim she was struggling to save her, however, the Investigating Officer has found all glass bangles of the victim to be intact. This further renders serious dent in the prosecution story. Another very important aspect of the matter is that though the said witness is said to have been present at the time of incident and he tried to persuade the accused persons not to commit this act but he had not gone to lodge the report and on being questioned in this respect he has stated that since he did not want to create any ill will with the accused as such neither he had gone to lodge the report nor send any one to lodge the report which again creates big question mark about veracity of the eye witness account of P.W.3, Pratap Singh and in view of aforesaid circumstances trial court has rightly not held said witness to be reliable witness and also discarded his testimony.
Now coming to the testimony of P.W.4, looking to the material contradiction in the statement of P.W.3, Pratap Singh particularly in respect of place from where he witnessed the incident inside the room and his categorical statement to the fact that at the time when the accused Ramesh was sitting on the chest of victim Shilwati he was holding country made pistol in his hand though not corroborated by other -13- witnesses makes his testimony unimpeachable. Further more in his testimony he has categorically stated that when he had seen the victim inside the room then all accused persons were assaulting the victim by Lathi and Danda, however, this particular circumstance of assaulting the victim by all these accused persons by Lathi and Danda neither finds corroboration from the statement of eye witness, P.W.3 Pratap Singh nor it finds corroboration from the medical report as P.W.5 Dr. S.K. Dutta has categorically stated in the post mortem report that no ante mortem injuries were found on the person of the victim. Further more this witness in his cross examination has stated that on viewing from grill the person holding the head of the victim Shilwati appeared alike Ramesh, however, he was not sure about specific identity of this person which further renders the testimony of the said witness doubtful and on account of the aforesaid discrepancies in the testimony of P.W.4, Pyare Lal he has also not been rightly held to be reliable witness and his testimony has been rightly discarded. Even medical report does not corroborate the prosecution story in as much as P.W.4, Pyare Lal has categorically stated that all the accused persons had assaulted the victim by Lathi and Danda, however, P.W.5, Dr. S.K. Dutta has not found even a single injury on her person and the cause of death has been found to be strangulation and thus the prosecution has not been able to establish its case beyond reasonable doubt against the accused-respondents and therefore view taken by trial court that the prosecution has failed to prove its case beyond reasonable doubt can not be said to be perverse and illegal it was rather based on proper appreciation of evidence and view taken by trial -14- court can not besaid to be a possible view.
Moreover, the Hon. Apex Court in catena of decisions has held that while deciding an appeal against acquittal the appellate court must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. Furthermore if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
In view of the aforesaid proposition of law laid down by the Apex Court we are not inclined to interfere in this appeal.
The present Government Appeal lacks merit and is accordingly dismissed.
Order Date :- 2.8.2019 R