Allahabad High Court
State Of U.P. vs Virendra Singh And Ors. on 26 September, 1997
Equivalent citations: 1998CRILJ2092
Author: R.K. Singh
Bench: R.K. Singh
JUDGMENT R.K. Singh, J.
1. This is an appeal under Section 378 of the Code of Criminal Procedure against the judgment and order dated 5th March, 1992 recording the finding of acquittal in favour of the accused-respondents by the Court of Vth Additional District & Sessions Judge, Kanpur Dehat.
2. The incident casuing death of Behari took place on 14th of July, 1989 within the territorial limits of village Gadatha, P.S. Moosa Nagar, district Kanpur Dehat. The prosecution story, according to the first information report Ex. Ka. 1, is that the field of deceased Behari was encroached upon by Chhotey Lal accused about two years ago claiming that the encroached portion is part of his field. Against the encroachment deceased's grand son Lalji (P.W. 2) lodged a complaint with the Tahsildar of the area and got measurement of the field through Lekhpal. The field was demarcated by the Lekhpal and thereafter in the last year Jwar and other crops were grown in the said field by the deceased's family. Accused Chhotey Lal forcibly cut and took away the crops of the said encroached area against which the family members of the deceased had protested as a result of which there was a bitter altercation between the accused Chhotey Lal and the deceased's family and since then the land was lying Parti. On 14th of July, 1989 Behari was returning to his house from the field. Behari's son Swamidin (P.W. 1) was at that very time going with ploughs and bulocks to plough the Batai field of Randhir Singh. As soon as Behari reached on. the ridge in between the fields of Ramraj Singh situated in villages Ajgar Purwa and Gadatha, Chhotey Lal, Lakhan and Virendra (accused-respondents) came from Ajgar Purwa side and without any rhyme and reason started assaulting Behari by Lathi and Dandas which they were having in their hands and dragging Behari towards village Gadatha. When Seami Din raised 'Halla' and went to intervene, all the three accused fell upon Swami Din and started assaulting him. Swami Din fled away and lodged report at the police station. The three accused persons dragged away Behari towards Gadatha. He (Lalji), his brother Veer Singh, Babu Ram son of Mani Lal, Uncle Prasad, counsel Jai Karan, Shiv Nath son of Ganga Charan and several others witnessed the incident. They waited for long time but when Behari did not return home then he (Lalji) and his brother Veer Singh went to find out Behari. They found the dead body of Behari lying in the English Babul bushes to the south of tube-well of Randhir Singh. The injuries were internal causing his death.
3. The police registered a case and investigated the same. The dead body was sent for post mortem examination, Dr. R. C. Dimari, Medical Officer, District Hospital, Kanpur conducted the autopsy on the dead body and submitted the autopsy report Ex. Ka-3. After examining the witnesses under Section 161, Cr. P.C. and completing the investigation charge sheet Ex. Ka. 15 was submitted.
4. The respondents were put on trial in the Court of Sessions and they pleaded not guilty to the charges under Sections 302 and 323/34, IPC.
5. In this case the prosecution has examined Swarai Din, Lalji and Jai Karan as eye-witnesses of the incident. Rest of witnesses are either police officers or the Medical officers. The autopsy report Ext. Ka. 3 and the evidence of Dr. R. C. Dimari (P.W. 6) speaks about the presence of four inte mortem injuries. The four injuries were contusions of different sizes. Injury No. 1 is on the right side head area above the right ear pinna of the size of 12 cm. x 7 cm.; injury No. 2 is on the left side fore-head, size 11 cm x 2 cm; The injury No. 3 is on the right fore-arm size 14 cm. x 8 cm. 2 cm above the wrist joint and the fourth injury is on the left side fore arm size 16 cm. x 9 cm.
6. On internal examination the brain was found liquified with clotted blood; small intestine half full with gases and large intestine half full of faecal matter and gall bladder half full weight 100 grams.
7. The cause of death is reported shock as result of ante-mortem injuries. There is one information petition marked Ex. Ka. 4 recorded in Moosa Nagar police station on 14th July, 1989 at about 5-30 p.m. on the statement of Swami Din P.W. 1 The first information report Ex. Ka-1 noted above was lodged on 14th of July, 1989 at 20-15 hours. The earliest report of the incident is contained in the report lodged by Swami Din at 5-30 p.m. on the same date. The report lodged by Swami Din Ex. Ka. 4 which is the earliest report of the incident at the police station speaks that deceased Behari was going towards village Gadatha to trace out the Lekhpal. On way the accused persons Virendra, Chhotey Lal and Lakhan surrounded him and started assaulting him by Lathi and Dandas and when Swami Din saw the incident he raised 'Halla' and ran to rescue his father but the three assailants fell upon him and started assaulting him by Lathi-Dandas. The incident was witnessed by Babu Lal and Veer Singh.
8. The prosecution has neither produced Veer Singh nor Babu Lal before the Court as witness in this case.
9. Swami Din P.W. 1 has stated in his evidence that his father was going to trace out Lekhpal at Gadatha and when he reached near the field of Ramraj which is on the border of Ajgar Purwa and Gadatha accused Virendra Singh, Lakhan and Chhotey Lal started assaulting him by Lathi-Dandas and fists. He raised 'Halla' and ran to intervene, then all the three accused persons fell upon him and started assaulting him. Lalji also reached in the meantime and this witness fled away and he went to police station Moosa Nagar and lodged the information with the police. Thereafter he was referred to the medical hospital for examination of his injuries and treatment. In the cross-examination this witness says at page 4 that in his presence only one Lathi blow was given to his father and few fists and step blows were given but he had not seen any injury on his father. Further, at page 7 this witness says that he was standing at a near place at the time of incident so he cannot say if some one killed his father and threw the dead body inside the bungalow or his father was assaulted somewhere else and threw the dead body by the side of bungalow. Further, this witness adds that he cannot say as to when his father was assaulted and killed. By this statement the witness ceases to be an eye-witness of the alleged incident of murder of Behari, simply he reamins a witness of the alleged beginning of assault on Behari. When we look to the ante-mortem injuries noted in the post-mortem examination report by P.W. 4 Dr. R. C. Dimari there were only four injuries which can hardly take a few seconds. If this witness would have actually seen the incident such statement was not possible for him that he did not see when his father was assaulted.
10. P.W. 2 Lalji, according to the prosecution, is the informant of this case. This witness says that his grand father Behari was going to village Gadatha through the fields when the three accused persons, Chhotey Lal, Lakhan and Virendra Singh started assaulting him at about 2-00 p.m. They were giving fists, slaps, to Behari and further gave one lathi blow. He saw the incident from the distance of fifty steps. Prior to him his father reached at the place of assault who tried to intervene but the accused persons assaulted his father as a result of which his father fled away. Thereafter the accused persons dragged the grand-father towards the tube well of Randhir Singh of Mauza Gadatha. After some time he along with Jai Karan, Veer Singh, Prasad, Babu Ram and Chhotey Singh went towards that side to find out Behari. They found that the dead body of Behari was lying in the English Babul bushes towards the south of tube-well of Randhir Singh. In cross-examination at one place this witness says that he was collecting uprooted grass from the field since about 1 or 1 1/2 hours, thereafter he changes and says that he was accompanying his father to collect the grass in the field. Again he changes his statement and says that he was not with his father rather he was following his father. At page 5 the witness says that he does not remember if his father was present at the time of panchayatnama of dead body being prepared by the Investigating Officer. When the earlier statement in the first information report was put to this witness to the effect that when Behari did not return to the house, they proceeded for searching out him and found the dead body in the bushes of English Babul trees - this witness explains that he waited at the place of occurrence not at the house. He has used the word "house" in the FIR due to haste and nervousness. On this point the third witness Jai Karan says that he saw the accused persons assaulting Behari and when Swami Din went to intervene the accused persons assaulted Swami Din then Swami Din (sic)ed away and he along with his brother Lalji ran to intervene but they stopped at some distance from the place of occurrence out of fear that the accused persons might possess Tamancha The witness says that the accused persons dragged Behari towards Jamuna. At this place the witness says that his grand father fled away, (sic) . After some time he along with his uncle Lalji went towards the tube well of Randhir Singh along with Shiv Nath and saw that the accused persons are going towards Jamuna and the dead body of Behari was lying in the bushes of English Babul.
11. P.W. 4 constable Siya Ram has stated that in July, 1989 he was posted at the police station Moosa Nagar as constable No. 86. On 15th July, 1989 the dead body of Behari was brought by him and Phool Singh to Kanpur for post mortem examination. They produced the dead body before the autopsy house on 16th of July, 1989. P.W. 6 is the doctor R.C. Dimari who has prepared the post mortem report which has been noted above. P.W. 7 Kunwar Singh, Head Moharrir is on the point of chick report and instituting the case number and the relevant G.D. entries. This witness has proved the report lodged by Swami Din marked Ex. Ka. 4. The witness has stated that at 17-30 hours on 14th July, 1989 Swami Deen lodged report which was recorded in N.C.R. register. A copy of the entry has been marked as Ex. Ka. 4. On the same day at 20-15 hours Lalji appeared at the police station and on his statement G.D. Report No. 28 under Ss, 304 and 323, IPC was drawn. A copy of the G.D. has been marked at Ex. Ka. 6. The witness says that Swami Din was referred to the P. H. C. Moosa Nagar for medical examination and treatment through the homeguard No. 8694 Raj Bahadur.
12. P. W. 8 Vikram Singh S.I. is the Investigating Officer of this case. He says that in July, 1989 he was posted in Moosa Nagar Police Station as Sub Inspector. He reached at Ajgar Purwa at 10.00 P.M. in the night and from there he reached at the place of occurrence and recorded the statements of Swami Din and Lalji with the help of lantern's light. On the next day i.e. 15th July, 1989 he prepared the panchayatnama of the dead body of Behari at about 9.00 A. M. The photo of dead body, the panchayatnama challan of the dead body alongwith the letter to the Chief Medical Officer for post mortem examination and sample of seal have been prepared and have been marked as Exs. Ka. 7, Ka. 8, Ka. 10 and Ka. 11. He prepared the site plan of the place of occurrence marked Ex. Ka. 12. He says that the blood stained clothes of Behari were taken in his possession and prepared seizure list Ex. Ka. 13. In cross-examination the witness says that he could not ascertain the actual place of murder because the informant or any witness did not point out such place. The witness further says that there was no blood marks at the place of occurrence. When we looked to the site plan of the place of occurrence prepared by this witness, the site plan of the investigating officer Ex. Ka. 14 points out the route through which the assailants-accused persons are said to have dragged Behari and assaulted him. This direction starts from village Ajgar Purwa. The place where the accused persons have started assaulting Behari, has been shown by star mark on the ridge. From this place the field of Randhir Singh Thakur is just to the next field after the field of Ramraj Singh, on the ridge on which Behari is said to have been surrounded by the accused persons who started assaulting Behari, is hardly few steps in the field of Randhir Singh Thakur to the south of which in the bushes of English Babul, the dead body is said to have been traced out.
13. If actually P.W. 1, P.W. 2 and P.W. 3 witnessed the dragging and assault of Behari on the ridge of the field of Ramraj Singh as they alleged, then it is not possible that they would not see the place where the dead body was located later on because these two phaes are only a few steps away well within TOO steps. So the fact that the dead body was traced out later on clearly speaks that none of the three witnesses actually witnessed the assault arid dragging of Behari by any one. This fact is strengthened by the picture given by the P.W. 1, P.W. 2 and P.W. 3 about the assault on Behari. According to these witnesses the accused persons were giving fists and slaps to Behari and only one lathi blow was given. The first and slaps cannot cause contusions which have been found on the dead body of Behari at the time of post mortem examination. If only one Lathi blow was given to Behari then four contused wounds of the length of more than 10" each were impossible. Thus the claim of P.W. 1, P.W. 2 and P.W. 3 that they actually saw the accused persons assaulting Behari and dragging Behari towards the tube well of Randhir Singh is not convincing. The earlier information lodged by Swami Din Ex. Ka. 4 does not name Lalji or Jai Karan as a witness of the incident. This also creates grave doubt to the claim of P.W. 2 and P.W. 3 that they witnessed the occurrence. The learned Additional Sessions Judge at page 14 of the judgment mentioned that "The perusal of the statements of the witnesses, as discussed above, makes it quite clear that in this case, the place of occurrence has not been fixed by the prosecution. The earlier report lodged by Swami Din does not disclose the place of occurrence. The subsequent report lodged by Lalji has been lodged after much delay and after the report lodged by Swami Din, which can, therefore, not be relied upon. Where actual place of occurrence could not be fixed by the prosecution, the very place of occurrence becomes doubtful and it makes entire case of prosecution unreliable. The presence of witnesses, therefore, having seen the occurrence and the place from where the witnesses are alleged to have seen the occurrence, all these facts becomes doubtful, Another factor that requires our attention in that the names of P.W. 2 and P.W. 3/Lalji and Jai Karan do not find place in the FIR lodged by Swami Deen P.W. 1 has stated that while his father Behari was being assaulted by the accused persons, he had run away from the place of occurrence and straight way he had gone to the police station, this witness has left his father to the discretion of the accused persons. This witness did not accompany his father to the last. This witness could not know as to what had happened with his father, thereafter P.W. 2 Lalji whose statement I have observed above, had kept standing and watching his grand-father/ Behari being assaulted by the accused persons, but he did not. go to the place of occurrence, nor he tried to rescue him, he also did not go or follow his grand-father/Behari, where the accused persons had dragged him towards the village Gadatha near the tube well of Randhir Singh. After half an hour P.W. 2 Lalji had gone to the place where the dead body of Behari was lying. This conduct of these witnesses go to establish that the witnesses are telling lie, they were not present to see the occurrence. This is against the human nature and conduct that the witnesses would not have run to rescue Behari. It is also to mention that it has been mentioned in the written report, Ex. Ka. 1 lodged by Lalji that after a long time, when my grand-father had not come back, I alongwith my brother/Bir Singh went to search for my grand-father, then we found the dead body of our grand-father in the side of the tubewell of Randhir Singh in the hedge of Babul trees. This mention of fact in the written report Ex. Ka. 1, shows it clearly that P.W. 2 Lalji and other witnesses have not seen the occurrence. They were not present to witness the occurrence. After a long time when Behari had not come back home, Lalji and other witnesses started to search him and they had found the dead body of Behari in the hedge of Babul trees in the south of tube-well of Randhir Singh. So the statements of the witnesses that they had seen the occurrence, they had seen Behari being assaulted by the accused persons are quite false.
14. At page 16 of the impugned judgment, the learned Additional Sessions Judge has noted that "P. W. 1 Swami Deen has stated that on 14-7-1989 he had lodged the F. I. R. and the I. O. has recorded the statement there, he had straight way gone to Moosa Nagar for medical examination on that day, he had not returned back to his house, on the next day, he had returned his house. So the very statement of I. O. that he recorded the statement of Swami Deen in the village is quite false. It is also not to be believed that I. O. had stayed there over night and in the morning he had prepared the inquest report on 15-7-1989. It is also remarkable to mention that P.W. 4 constable Siya Ram has admitted that Swami Deen had also gone from police station to his village with the I. O., whereas P.W. 7 H. C. Kunwar Singh has admitted that after lodging the report, Swami Deen was sent to Moosa Nagar, P. H. C. alongwith Homeguard/ Raj Bahadur. The G. D. of twenty four hours of 14-7-1989 has disclosed that there is no entry of these two persons for going to Moosa Nagar or for coming back from Moosa Nagar. P.W. 9 Indra Narain has also stated that in the G. D. dated 15-7-89 there is no mention that Swami Deen was sent to P.H.C. or he had come from P. H. C. These statements established that the FIR has been lodged after due consultation. It is full of deliberation and it is after-thought. It appears that after the dead body of Behari was recovered, the I. O. had visited the spot and thereafter entire formalities of taking down F. I. R. were completed ante-timely. This, therefore, creates doubt in the prosecution case.
15. Further, the learned Additional Sessions Judge has noted that "the I. O. has also prepared the memo of blood stained clothes of the deceased Behari which is Ext. Ka. 13 but the P.W. 8 Vikram Singh has not sent the blood stained clothes for chemical examination in order to ascertain the human blood on it. Moreover, P.W. 8 Vikram Singh has admitted at page 6 of his cross-examination that the witness Jai Karan Singh had met him at the place of occurrence on 14-7-1989 at 11.15 P.M. in the night, but on that day he has not recorded the statement of this witness but the statement of Jai Karan was recorded by him on 5-9-1989, after weeks of the date of occurrence. This also makes clear that the I.O. has deliberately marked time to shape the case and the evidence of P.W. 3 Jai Karan becomes also doubtful. The I. O. has also not recorded the statement of Doctor who has examined the injuries on the person of Swami Deen. Injuries on the person of Swami Deen, in the circumstances, discussed above, do not establish the fact that these injuries were caused op the person, as alleged by the prosecution.
16. These apparent facts in the evidence of the prosecution fully demolishes the prosecution case.
17. The judgment and order passed by the learned Additional Sessions Judge is based on proper appreciation of evidence on record: Actually the prosecution has failed to prove the allegations of causing death of Behari and causing hurt to Swami Deen in the alleged manner and at the alleged place on 14th of July, 1989.
18. The appeal does not disclose merit. The same is, therefore, dismissed. The respondents and the sureties are discharged from the liability of the bail bonds.