Allahabad High Court
Raju vs State Of U.P. on 19 January, 2023
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 48 Case :- CRIMINAL APPEAL No. - 4611 of 2013 Appellant :- Raju Respondent :- State of U.P. Counsel for Appellant :- Rajendra Kr. Tripathi,Anil Kumar Dubey,Narendra Kumar,Rabindra Bahadur Singh Counsel for Respondent :- Govt. Advocate Hon'ble Arvind Kumar Mishra-I,J.
Hon'ble Saral Srivastava,J.
Heard Sri R.B. Singh and Sri N.K. Singh, learned counsel for the appellant, Sri A.N. Mullah, learned A.G.A. for the State and perused the material brought on record.
The instant appeal has been preferred against the judgement and order dated 20.08.2013 passed by the Additional Sessions Judge, Court No. 10, Bareilly, in Session Trial No. 1143 of 2012 (State of U.P. Vs. Raju), arising out of Case Crime No.1092 of 2012, under Sections - 302, 201 I.P.C., Police Station - Baheri, District - Bareilly whereby the appellant has been sentenced to undergo rigorous imprisonment for life under Section 302 I.P.C., coupled with fine Rs. 20,000/-, in default of payment of fine, one month additional simple imprisonment and three years rigorous imprisonment under Section - 201 I.P.C. coupled with fine Rs.5,000/-, in default of payment of fine, two months additional simple imprisonment. All the sentences were ordered to run concurrently.
Facts of this Appeal:-
Factual matrix of this case as reflected from the record proceeds on line that the informant of this case, Natthu Lal (P.W.-1), father of deceased- Yashpal lodged a written report at Police Station - Bahedi on 12.10.2012 at 01:10 p.m. against the appellant with description that the informant is resident of Village - Bhurha Bahadurpur within Police Station - Baheri Bareilly. While he was sitting in his house on 11.10.2012 along with his brother Prem Shankar and Rakesh son of Vindravan around 03:00 p.m., Raju son of Dori Lal Gangwar came over there, called his son Yashpal and asked to accompany him to Bhurhiya for sharpening edges of ''daranti' (sickle). Informant's son took four ''daranti' (sickle) with him and departed along with accused on motorcycle U.P. 25 AF 1284, but he did not return whole night. Search was made for the whereabouts of Yashpal but to no avail. The next day at 10:00 a.m., Raju was seen coming towards the village, when he was enquired about whereabouts of Yashpal, he adopted dilly dallying tactics and tried to avoid the query but upon pressure being exerted by the villagers, Raju told that Yashpal and he himself consumed liquor during night at Uganpur and in order to commit theft of motorcycle cajoled him somewhere in between Makroi and Dadyabojh and cut his neck with the ''daranti' and threw him away in the canal and concealed the motorcycle in the sugar-cane field of Moti Ram. Upon such disclosure, the informant along with others took the accused-appellant to the place where the dead body of Yashpal was lying. Consequently, a report was written and got lodged at the Police Station - Bahedi, the same is Ext. Ka-1. Relevant entries whereof were made in the concerned Check F.I.R. (Ext. Ka-6) at Case Crime No. 1092 of 2012, under Sections - 302, 201 I.P.C. at Police Station - Bahedi. On the basis of the same, case was registered against the accused-Raju at Serial No. 29 of the General Diary concerned of date 12.10.2012 at 01:10 p.m. at aforesaid police station. The copy of concerned G.D. is Ext Ka-7. Both these papers have been proved by Constable Jhajhan Lal (P.W.-5). Consequently, the investigation ensued and the same was entrusted to S.H.O. Sunil Kumar Pachori (P.W.-6).
The Inspector Devendra Kumar Tyagi PW-4 prepared the inquest report under supervision of the investigating officer on 12.10.2012 and has facilitated for sending the dead body to the mortuary at Bareilly and has proved the inquest report (Ext. Ka-2). Bare perusal of the inquest report is indicative of fact that preparation of inquest report commenced at 02:05 p.m. on 12.10.2012 and completed at 04:00 p.m. on 12.10.2012.
The relevant papers were also prepared for sending the body for postmortem examination and the relevant papers have been proved by P.W.-6 as Ext. Ka-14, Ext. Ka-15, Ext. Ka-16, Ext. Ka-17 and Ext. Ka-18, the same are challan dead body, photonash/dead body, letter to C.M.O., letter to R.I. and specimen seal, respectively. As the investigation proceeded, the prosecution witness Dr. T.S. Arya conducted postmortem examination on the dead body of the accused on 13.10.2012 at 01:00 p.m. He has noted the following ante mortem injuries on the dead body of Yashpal son of Naththu Lal:-
1. Incised wound 9 cm x 2 cm x trachea deep, 6 cm below chin 9 cm below right ear, 7 cm below left ear, margin sharp and clean.
2. Multiple abrasion 6 cm x 1 cm on left side face in front of left ear.
Cause of death was stated to be shock and haemorrhage as a result of incised wound on the neck.
Duration was described 1-1/2 to 2 days. The postmortem examination report has been proved by the doctor witness as Ext. Ka-13.
Since the investigation was underway and the accused was in the custody of the police, he was taken to the place near side passage of the canal and a motor cycle Bajaj Platina black colour numbering U.P. 25 AF 1284 was recovered on the pointing of the accused from the sugar-cane field of Moti Ram, a recovery memo was prepared on the spot, which has been proved as Ext. Ka-3. Since the investigation proceeded further, the Investigating Officer recovered blood stained ''daranti'/sickle on the pointing out of the accused from the left side passage of canal in the field of Gurmeet Singh from the bushes under blueberry tree, the same was taken into possession by the investigating officer and a memo of recovery of daranti/sickle was also prepared, which is Ext. Ka-4. Apart from that, the investigating officer arrived at the place of occurrence and collected simple soil and blood stained soil from the spot and kept it in two seperate containers and sealed it up and prepared a memo of the same, which memo is Ext. Ka-5. The investigating officer has prepared site-plan of the place of occurrence (Ext. Ka-8). Apart from that, the site plan of the place of recovery of ''daranti' was also made which is Ext. Ka-9. Similarly, the site plan of the place of recovery of motor cycle has been proved as Ext. Ka-10 by the investigating officer.
It is relevant to mention that once again after preparation of the recovery memo of motor cycle (Ext. Ka-10), the investigating officer again proceeded to that spot and prepared site-plan of place of recovery of motor cycle as Ext. Ka-11. Therefore, two site-plans pertaining to the same spot appear on record. The investigating officer also recorded statement of various witnesses. The daranti/sickle allegedly recovered at the pointing out of the accused was sent for 'chemical examination' along with letter. We neither come across any such report submitted by any chemical analyst of the forensic laboratory nor do any paper purporting to be a report, as such, as been brought and placed on record by the prosecution. After completing the investigation, the investigating officer filed the charge sheet (Ext. Ka-12) against the accused at aforesaid case crime number.
Pursuant thereto, proceedings of the case were committed to the court of Sessions from where it was transferred for conduction of the trial and disposal to the aforesaid trial court of Additional Sessions Judge, Court No.10, Bareilly who in turn heard both the sides on point of charge and was prima-facie satisfied with the case against the accused-appellant, consequently, he framed charges under Sections 302 and 201 I.P.C. Charges were read over and explained to the accused-appellant in hindi, who abjured charges and opted for trial.
Consequently, the prosecution was required to adduce its testimony. The prosecution produced in all 8 witnesses. P.W.-1 is the informant- Natthu Lal. P.W.-2 Prem Shankar and P.W.-3 Nand Ram are the witnesses of fact. P.W.-4 is Inspector Devendra Kumar Tyagi, who prepared the inquest report under supervision of the investigating officer and has proved the same as Ext. Ka-2. He has also proved memo of simple mud and clay mud and has also proved recovery memo of ''daranti'/sickle. Constable Clerk Jhajhan Lal (P.W.-5) has proved relevant entries of the contents of the written report (Ext. Ka-1) noted by him in the concerned check F.I.R. and the relevant entry made in the concerned general diary of date 12.10.2012. S.H.O. Sunil Kumar Pachori (P.W.-6) has conducted investigation into the matter and has narrated the entire length of his investigation and has proved apart from various papers filing of charge sheet against the accused. P.W.-7 Dr. T.S. Arya has conducted postmortem examination on the body of the deceased and has proved the same as Ext. Ka-13. P.W.-8 Pati Ram is the scribe of the written report.
Thereafter, evidence for the prosecution was closed and the statement of accused was recorded under Section - 313 Cr.P.C., wherein he has stated that on account of enmity, the village pradhan has falsely implicated him in this case and he is innocent. No evidence whatsoever was led by the defence.
The learned Additional Sessions Judge, Court No.10, Bareilly , after appraisal of facts and merit of the case and the evidence on record, vide his judgment and order of conviction dated 28.08.2013 imposed sentence under Sections - 302, 201 I.P.C. and sentenced the accused to rigorous imprisonment for life along with fine under Section - 302 I.P.C. and three years rigorous imprisonment along with fine under Section - 201 I.P.C. In case of default in payment of fine he was directed to suffer additional imprisoment, as above.
Consequently, this appeal.
Argument by the Defence :-
Contention by the learned counsel for the appellant proceeds on line that appellant is an innocent young man and has been falsely implicated on account of village party bandi and due to mischief played by the Village Pradhan, who exploited the situation to his advantage in collusion with the police personnel of the concerned Police Station - Bahedi, District - Bareilly and got scribed a false report. He being Gram Pradhan of the village, the report was in fact written at the dictation of the police, which fact is admitted to the prosecution witnesses of fact. On such specific testimony emerging in cross examination of the informant-P.W.-1, the prosecution neither re-examined the witness, nor did it declare him hostile witness.
Above particular testimony being established and admitted position and part of testimony of P.W.-1 Natthu Lal- the star witness was-not appreciated, discussed and taken into consideration by the trial court. It being a case based upon circumstantial evidence, all links in the chain of circumstances are shattered and the chain cannot be said to be complete and conclusively established pointing to the guilt of the accused. On the contrary, facts and circumstances qua the testimony of the prosecution witnesses are pointing to the innocence of the accused.
Learned counsel for the appellant read out various parts of the testimony of P.W.-1, P.W.-2. P.W.-3 and P.W.-8 and claimed that the village pradhan being highly motivated and inimical, has master minded involvement of the accused in this case in collusion with the police, he had specific reason and cause to settle score against the accused because the accused had supported candidature of another person, who was contesting election of the village pradhan.
It is established law that in cases based upon circumstantial evidence, the various links in the chain of circumstances should be complete, consistent and not leaving any room for doubt or for creating any situation, which would work in favour of hypothesis of innocence of the accused. In this case, the various links in the chain of circumstances are wholly inconsistent and the chain of circumstances is not complete.
Learned counsel concluded by claiming that the testimony is full of embellishment and improvement. The F.I.R. is ante time and the very fact has been disclosed by none other than informant P.W.-1 himself and he has stated in so many words that the report was lodged after the inquest had been prepared by the police. It is noticeable that inquest report itself is reflective of fact that the preparation of inquest commenced at 02:05 p.m. on 12.10.2012 and completed at 04:00 p.m. That being the case, the F.I.R. was lodged after 04:00 p.m. after completion of the inquest report. Once the F.I.R. becomes ante time, the entire prosecution case becomes highly doubtful and the whole prosecution story falls flat and it would not inspire confidence.
Reply by the State :-
While, replying to the aforesaid contention, Sri A.N. Mulla, learned A.G.A. has submitted that insofar as the factum of last seen theory is concerned, the same has been properly and duly proved and established and on this point, the testimony of the prosecution witnesses of fact is unflinching. Insofar as the statement of P.W.-1 on point of scribing the report (Ext. Ka-1) is concerned, the same should be under circumstances taken as stray statement, which does not fall in queue with the flow of testimony when read as a whole. The factum of recovery of weapon of assault has been duly and properly proved by the prosecution witnesses and there is no doubt regarding the recovery of weapon of assault.
The recovery of ''daranti' / sickle was made at the pointing out of accused and the motorcycle bearing No. U.P. 25 AF 1214 was also recovered at the pointing out of the accused. Apart from that, the dead body was also recovered at the pointing out of the accused. The very motive for committing the offence was to the import that the accused was greedy for grabbing motorcycle of the deceased and for that specific reason he caused the occurrence by causing cut blow with daranti on the neck of the deceased Yashpal. The doctor who conducted postmortem examination on the body of Yashpal has noted the injury as incised wound 9 cm x 2 cm x trachea deep, 6 cm below chin 9 cm below right ear, 7 cm below left ear, margin sharp and clean on the neck of the deceased. Apart from that, the investigation has been fair. There is no reason as to why the police was interested in falsely involving the appellant and the I.O. had no bias against the accused. The report was properly lodged at 01:10 p.m. on 12.10.2012 and has been proved by P.W.-5 Constable Jhajhan Lal. To claim that the various links in the chain of circumstances are not complete is not proper, however, the evidence adduced by the prosecution shows otherwise. The prosecution has proved its case beyond reasonable doubt.
Moot point for determination of Appeal :-
In the light of rival submission and the claim raised, the following question crops up for our consideration, as to whether the prosecution has been able to prove satisfactorily the charges against the accused-appellants beyond all reasonable doubt ?
Discussion on merit of the case :-
We gather from the perusal of the contents of that F.I.R., the alleged departure of the deceased- Yashpal from his house in company with the accused and the consequent recovery of his dead body on the very next date (12.10.2012). It proceeds with allegation that on 11.10.2012, the informant Natthu Lal (P.W.-1) was sitting along with Prem Shankar and Rakesh son of Vrindavan at his home. It was around 03:00 p.m., when Raju son of Dori Lal Gangwar of his village came over there, called his son Yashpal and asked to accompany him to Bhurhiya (a place for marketing) for sharpening the edges of ''daranti'/sickle. The informant's son (deceased-Yashpal) took with him four sickles/'daranti' and drove away along with the accused on his motorcycle U.P. 25 A.F. 1284, however his son did not return at the fall of night. The informant made search for his son, but to no avail.
On 12.10.2012, Raju (the accused) was seen coming towards the village, when he was intercepted and asked about whereabouts of his son, a number of villagers had gathered on the spot. They exerted pressure upon Raju, when Raju told them that he and Yashpal both consumed liquor at Uganpur in the night and he nurtured greed for motorcycle of Yashpal and wanted to grab it. Therefore, after cajoling Yashpal, he took him to some place in between 'Makroi' and 'Dadyabojh' and cut his (Yashpal) neck with ''daranti'/sickle and threw away him in the canal and concealed the motorcycle in the sugar-cane field of Moti Ram.
Upon such disclosure, the informant along with the accused and others went upto the spot as told by Raju, where the informant saw the dead body of his son lying by the side of canal. The F.I.R. proceeds on to say that the informant went to the police station leaving behind several persons on the spot and made request for report being lodged and action taken. Insofar as this description in the first information report (Ext. Ka-6) is concerned, the same primarily discloses two specific facts, one being that in the evening of 11.10.2012 at about 03:00 p.m., accused Raju accompanied the deceased- Yashpal on his motorcycle U.P. 25 AF 1284 but he did not return back home in the night. The very next day (i.e. 12.10.2012) upon disclosure being made regarding the occurrence that the dead body had been thrown away in the canal, the dead body was recovered by the side of the canal. This report was lodged at the police station at 01:10 p.m. on 12.10.2012, the same was registered at Case Crime No. 1092 of 2012, under Sections - 302, 201 I.P.C. at Police Station - Bahedi, District - Bareilly. The description so made in the F.I.R. requires our appraisal and scrutiny qua the testimony on record and the attendant facts and circumstances of the case.
Argument advanced by the defence is to the import that the entire case is false. The ''pradhan' of the village, who incidentally is Pati Ram (P.W.-8) is the scribe of the report and he has managed the things by falsely involving the appellant in this case need be examined as such. Several arguments have been advanced and piece of evidence has been read out in support of the claim.
Now we may proceed with the testimony of prosecution witnesses of fact as has been produced by the prosecution and cross examined by the defence. The testimony of Natthu Lal (P.W.-1) is in tune with the description of the occurrence as contained in the F.I.R. in his examination-in-chief to the ambit that the accused came to his house on 11.10.2012, took away his son Yashpal with him on the motorcycle, but his son did not return back home in the night. On enquiry being made with Raju, he tried to avoid the query regarding whereabouts of informant's son, in this regard testimony of Natthu Lal is suggestive of fact that on the next morning at around 10:00 a.m., the informant along with others exerted pressure upon him, when the accused-Raju disclosed fact that after consuming liquor in the village Uganpur, the accused became greedy of the motorcycle of Yashpal, therefore, the accused cut his neck with daranti/sickle and threw away his body somewhere in between Daiyamorh and Makroi by the side of the canal and the motorcycle was concealed in the sugar-cane field of Moti Ram. Thereafter, the informant and the villagers arrived on the spot where the dead body was stated to have been thrown away by the accused.
The examination-in-chief of P.W.-1 (Natthu Lal) proceeds on to state that the informant went to the police station along with Raju and handed over the report after it was scribed by village pradhan Pati Ram son of Noni Ram. The testimony proceeds with description that the report was written at his dictation and he appended his signature on it after hearing contents of it and has accordingly proved his signature on the report which is marked Ext. Ka-1. He has stated in the very last line of his examination-in-chief that from the police station he went to the postmortem house. In his cross examination, he has made certain disclosures, which adversely affect the prosecution case on point of lodging of the F.I.R. at 01:10 p.m. on 12.10.2012 at Police Station - Baheri. In his cross examination, on Page Nos. 21 and 22 of the paper book, he has testified to the ambit that he, after reaching to the spot (where dead body of Yashpal was lying), remained there till the inquest report was completed / prepared. However, he has stated that he went to the police station for information after the inquest had been completed. Further, his cross examination proceeds on to disclose fact that he had informed the police at that point of time. When the accused evaded reply to the query posed to him by the informant asking about the whereabouts of the deceased the police had arrived in the village prior to his departure from the village to the spot (where dead body of the deceased was lying). The cross examination proceeds on to state about the specific time that the police had arrived in the village around 10:30 a.m. We notice from testimony of P.W.-1 that it was on 12.10.2012, in his cross examination that he went to the police station after the inquest report had been prepared. He further says that ''Panchayatnama' was prepared after 12:00 noon. After the inquest report was prepared, he got the report written at the police station and went to the postmortem house from the police station. The dead body was first taken to the police station, when the report was lodged by the informant. Thereafter, the dead body was taken to the postmortem house. He has further stated that after the report had been lodged, the investigating officer did not make any inquiry about the incident from him. However, he enquired about the incident prior to the lodging of the report. He has stated categorically on page no. 22 of the paper book in his cross-examination that Daroga Ji had got prepared the written report (Exhibit Ka-1). "The report was written by Pradhan Ji of his village" and "Daroga Ji had dictated it to Pradhan Ji".
Bare perusal of the inquest report (Ext. Ka-2) is indicative of fact that preparation of inquest began at 02:05 p.m. on 12.10.2012 and was completed at 04:00 p.m., the same day. As per the description contained in the inquest report, it has been described in it that on 12.10.2012 after the information was received at Case Crime No. 1092 of 2012, the police party proceeded to the spot, the dead body was found lying in waters of canal. The head of the dead body was towards western side, whereas, the leg was facing towards eastern side. The dead body was taken out of canal waters and kept by the side of the canal and inquest was prepared. This description by itself is indicative of fact that the inquest was prepared by the side of canal after the dead body was recovered from the waters of canal and the inquest report was completed at 04:00 p.m. It is not the case of the prosecution that the inquest report was prepared either at the police station or at the hospital but it is proved that inquest was prepared and completed by the side of the canal. If the report was as claimed to have been lodged at 01:10 p.m. on 12.10.2012, then how is it possible to believe the testimony of Natthu Ram as emerging in his cross examination that the report was lodged after preparation of the inquest report. If the report had been lodged at 01:10 p.m. on 12.10.2012 at Police Station - Baheri, then there was no point that the informant proceeded from the police station to the postmortem house, whereas, under natural circumstances, he would have proceeded to the spot where the proceeding was under way for preparation of the inquest report (which place is the patari side of the canal) along with the police party or singly, as the case may be, but it was not so, whereas, it is admitted position that the inquest report was prepared from 02:05 p.m. to 04:00 p.m. on 12.10.2012.
Another peculiar feature of the testimony of P.W.-1 is reflective of fact that the police had arrived in the village prior to the informant and others proceeding to the spot on 12.10.2012 at 10:30 a.m., whereas, the entire F.I.R. is woefully silent and does not make any whisper about that aspect. There appears concealment of vital facts of the incident by the prosecution. Facts alleged do not fall in line with the actual happening regarding the lodging of the report, arrival of the police in the village. More surprising is the fact that the report was got scribed on the dictation of Daroga Ji and it was scribed by Pati Ram, the village pradhan (P.W.-8). The testimony (of P.W.-1 Natthu Lal) is clinching on the point that "Daroga Ji dictated and Pradhan Ji wrote the report".
In the light of above, we also notice in the testimony of P.W.-8 Pati Ram, who has confirmed to the fact of report being written by him on the dictation of Natthu Lal on the ''nahar patri' (side of canal) itself. Thus, testimony of P.W.-8 in his examination-in-chief generates lots of doubt and raises serious question on the reliability of both the witnesses say P.W.1 and P.W.-8. Both of them cannot be believed to be trustworthy witness on the point of lodging of the report and it being dictated and scribed as such.
We further notice that the Village Pradhan has also testified certain memo Ext. Ka-5, simple soil and mud clay, memo of recovery of motorcycle and memo of recovery of daranti/sickle (Ext. Ka-4). Even in his cross examination on Page No. 47 of the paper book, P.W.-8 has stated that he wrote the report on the dictation of Natthu Lal, whereas, the police arrived around 09:00 a.m. to 09:30 a.m. The inquest report was prepared before him around 09-10 a.m. This specific testimony by itself is reflective of fact that this witness is neither believable nor reliable, even on facts regarding the time when the inquest report was prepared, whereas, testimony of P.W.-1 regarding writing of the report on the dictation of ''Daroga Ji' by Pati Ram (P.W.-8) makes the first information report ante time and outcome of involvement and deliberation of the police, in particular, the investigating officer.
It is settled principle of criminal jurisprudence that in case the F.I.R. becomes doubtful regarding specific timing of lodging of the report, and to fact as to who dictated the F.I.R. and the person who wrote it, then the very foundation of the prosecution case loses significance, thus rendering the F.I.R. ante time. Here it is a fit case based upon testimony and circumstance which exorbitantly prove fact that the F.I.R. is ante time, which factual aspect is obvious as per testimony of the informant-P.W.-1 itself that the F.I.R. was lodged after preparation of the inquest report which was completed at 04:00 p.m. on 12.10.2012.
We would like to discuss testimony of Constable clerk Jhajhan Lal (P.W.-5), who claims to have noted down the contents of the written report (Ext. Ka-1) on the Check F.I.R. No.344 of 2012 at Case Crime No. 1092 of 2012, under Sections - 302, 201 I.P.C. and a case was registered at 01:10 p.m. at Serial No. 29 of the General Diary of Police Station - Bahedi and has proved the check F.I.R. and the concerned general diary entry Ext. Ka-6 and Ext. Ka-7, respectively, whereas he has stated in his cross examination that the written report was produced by the informant (P.W.-1), whereas the informant (P.W.-1) has stated in his cross examination that the report was written by P.W.-8 Pati Ram on the dictation of Daroga Ji and that took place after preparation of the inquest report (Ext. Ka-2). Thus, P.W.-5- is hiding the truth and he is not coming with true facts.
In view of above, it is obvious that the prosecution witnesses both P.W.-8 and P.W.-1 are not believable. They are not trustworthy and veracity of their version has been exposed in their cross examination. The circumstance also show, as per testimony of P.W.-1 on page no.21 of the paper book, that after the inquest report had been prepared, the report was got scribed at the police station, then he (P.W.-1) went to the postmortem house. This specific piece of testimony unravel the truth that the things have been tried to be managed, deliberated and fixed, for the reasons best known to the prosecution.
The testimony of P.W.-1 evinces fact to the import that after the inquiry was made from Raju on 12th October, 2012, about whereabouts of the deceased Raju went to his home. He states that Daroga Ji did not record his statement as such. He further states that the dead body of Yashpal was lying in the canal waters. The water was knee deep in the canal. However, this witness has categorically stated that Raju had no enmity with the deceased.
Insofar as the testimony of Nand Ram- P.W.-3 is concerned, it is in line with that of P.W.-2 Prem Shankar regarding the ''last seen' and the preparation of the inquest report. However, in view of the testimony of P.W.-1, lot of suspicion works in the story of prosecution and gives rise to a number of possibilities. Now, insofar as the testimony of the investigating officer Sunil Kumar Pachori P.W.-6 is concerned, obviously he claims to have proceeded to the spot after the report had been lodged, whereas, his testimony is in material contrast to the fact of lodging of the first information report at the time (01:10 p.m. on 12.10.2012), as claimed by the prosecution. He claims that spot map was prepared by him which is Ext. Ka-8. The Place-A earmarked in the site plan by the investigating officer appears to be the canal. Thereafter, place-B is earmarked on the foot path / patri of the canal, where the dead body was allegedly lying and was taken out from the canal. Obviously, there was water in the canal and the body must have been lying in the canal for few hours in the night intervening 11/12.10.2012. However, he has proved recovery of ''daranti'/sickle and preparation of its recovery memo (Ext. Ka-7) and preparation of site plan of the place of aforesaid recovery (Ext. Ka-9) and has also proved recovery of motorcycle from the sugar-cane field of Moti Ram and has proved the recovery memo and the site plan of the recovery of motorcycle, which is marked Ext. Ka-10.
However, it is noticeable that the ''daranti' which was allegedly recovered at the instance of the accused by the investigating officer has claimed to have been sent for forensic examination at Vidhi Vigyan Prayogshala, Lucknow on 31.10.2012 but no report worth its sort has been obtained and placed on record, so as to give credence to the fact that the recovered sickle was blood stained with human blood. Since the point has been pressed by the prosecution itself that the recovered ''daranti'/sickle was sent for forensic examination, then it was obligatory on the part of the prosecution to have obtained the forensic examination report, regarding the blood stains found on the sickle and would have been brought before the trial court, but the same has not been done. Non production of the report would cast serious doubt upon the claim of the prosecution that any blood stained daranti/sickle was so recovered and sent for forensic examination, as such.
The investigating officer claims that the report was lodged at 01:10 p.m., which aspect has been rendered dubious by the testimony of P.W.-1 in his cross examiantion. The investigating officer has also stated that the written report had been got prepared and was produced at the police station. He also stated about the inquest report, which was prepared under his supervision by Devendra Kumar Tyagi-P.W.-4. He has been suggested that he has performed his duties at the police station itself and has not conducted fair investigation, which suggestion has been denied.
It is surprising that the doctor witness Dr. T.S. Arya P.W.-7 has stated innocuously in his cross examination that the investigating officer did not make any inquiry from him. In the very last line of his examination-in-chief, Dr. T.S. Arya (P.W.-7) has testified to the ambit that the injury (Injury No.1) cannot be caused with weapon daranti/sickle but it could be caused by sharp edged weapon. However, on this point, it was incumbent and obligatory on the part of the prosecution to have re-examined this witness and would have clarified the factual aspect about injury being caused by use of ''daranti' or so but the same aspect has been let go by the prosecution for the reasons best known to it.
It is obvious that prior to the lodging of the report, the interference and indulgence of the police personnel and, in particular, the investigating officer of this case is apparent on record, deliberation of the investigating officer with the village Pradhan is innocuously established against the prosecution prior to the lodging of the F.I.R. that renders the first information report manipulated and deliberated upon by the police and it gives credence to fact that the F.I.R. has not been lodged at the time, when it is claimed to have been lodged by the informant. Instead, the testimony of P.W.-1 emerging in his cross examination renders the first information report ante time. The defence has also come out with the factum of enmity that accused has been roped- in, in this case at the instance of Village Pradhan, Pati Ram since the accused had supported the candidature of the person, who had contested election for Village Pradhan against Pati Ram. We may observe with convenience that the testimony of prosecution witnesses of fact as well as Constable Jhajhan Lal and the investigating officer P.W.-6 is apparently and inherently contradictory in material particulars and it does not inspire confidence. The testimony of prosecution witnesses of fact on the face does not inspire confidence, for the reason that the manipulation of the entire things has emanated from the active participation of the police and in particular the investigating officer in collusion with the Village Pradhan of the village-Pati Ram- (P.W.-8). There is no denying fact that on account of supporting candidature of one Dharmendra Gangwar, who contested village pradhan election against the sitting Village Pradhan, Pati Ram was supported by the accused, therefore, Pati Ram had got a cause against the accused and the testimony of P.W.-1 itself is indicative of fact that the F.I.R. was dictated by Daroga Ji to Pati Ram at the police station that by itself is sufficient for creating lot of material loopholes and dent in the prosecution story, which for the aforesaid obvious reasons would create strong case of benefit of doubt in favour of accused.
Discussion made by us on all relevant aspects and in particular fact of writing of the first information report, timing of preparation of the inquest report and the factum of point of false implication of the accused have not been properly appreciated and appraised by the lower court vis-a-vis the testimony on record and the attendant facts and circumstances of this case. The material available on record tilts in favour of accused and advantage of the same should go to him.
For all the reasons stated above, the appellant is entitled to the benefit of doubt, accordingly he is entitled to acquittal.
Consequently, the judgement and order of conviction dated 20.08.2013, passed by the Additional Sessions Judge, Court No. 10, Bareilly, in Session Trial No. 1143 of 2012 (State of U.P. Vs. Raju), arising out of Case Crime No.1092 of 2012, under Sections - 302, 201 I.P.C., Police Station - Baheri, District - Bareilly, is hereby set aside.
The appeal is allowed.
In this case, the appellant is languishing in jail for over 10 years, if he is not wanted in connection with any other case he may be released forthwith.
Let a copy of this judgment/order be certified to the court concerned for necessary informant and follow up action.
Order Date :- 19.01.2023 S Rawat