Allahabad High Court
Badan Singh And Others vs State Of U.P. on 20 February, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:28451-DB Reserved On: 19.01.2024 Delivered On: 20.02.2024 Court No. - 46 Case :- CRIMINAL APPEAL No. - 1004 of 1996 Appellant :- Badan Singh And Others Respondent :- State of U.P. Counsel for Appellant :- Js Kashyap,Ajendra Kumar Counsel for Respondent :- Govt. Advocate Hon'ble Siddharth,J.
Hon'ble Ram Manohar Narayan Mishra,J.
(Delivered by Ram Manohar Narayan Mishra,J.)
1. Heard Sri Ajendra Kumar, learned counsel for the appellants, learned AGA for the State and perused the material placed on record.
2. Instant Criminal appeal has been preferred by the accused appellants with a prayer to set aside the judgment and order dated 23.5.1996, passed by Additional Sessions Judge, Mainpuri, in S.T. No.222 of 1993, (State vs. Badan Singh and others), under Sections 147, 148, 302/149 IPC, Police Station- Kurawali, District- Mainpuri, whereby, they have been convicted for charge under Section 302 IPC and have been sentenced to imprisonment for life. They have been acquitted of other charges under Sections 147 and 148 IPC.
3. The factual matrix of the case, in brief, are that the informant, Jaivir Singh, lodged an FIR at police station Kurawali, District Mainpuri, on 3.3.1993, at 6:10 hours, with allegations that he is resident of Village Jigan Chandai, District Mainpuri. There are inimical terms between the informant and his co-villager namely, Badan Singh @ Nekse Lal and his associates. On 2.3.1993, at around 8:00 PM, his brother, Mukesh Singh, has gone towards south of the village to ease himself and he sat towards agricultural field lying in south-west side of the village. Named accused persons including Badan Singh and 5 others met him there. Accused Nem Singh was having Dhariya (sharp edged weapon), Suresh and Ved Ram were armed with lathi (club), Hansraj and Radhey Shyam were armed with knives. They grabbed hold of Mukesh and assaulted him with farsa (axe) in consulted manner. The informant and witnesses namely, Radhey Shyam, Ram Nath and Damodar ran towards the place of incident to save the victim but the accused persons killed him prior to arrival of the informant and witnesses. The informant and witnesses could not try to catch the miscreants being scared by their act. Other villagers also arrived there. The FIR was lodged vide Crime No.100 of 1993, under Sections 147, 148, 302 IPC, against named accused persons. The Investigation was entrusted to S.I. Rajeshwar Prasad Mishra of police station concerned. He collected blood stained and plain earth from the place of incident, on 3.3.1993. The inquest on dead body of the deceased Mukesh was carried out by S.I. R.P. Mishra, in presence of Panch Witnesses, on 3.3.1993, at 17:00 to 17:40 hours, in which 10 injuries were found on the person of the deceased. The dead body was sent for post mortem examination at the instance of Investigating Officer alongwith necessary enclousers. The postmortem examination was conducted by PW-5, Dr. Raghuvansh Kumar, who found as many as 13 antemortem injuries on the person of deceased and in the opinion of Doctor, death of Mukesh was on account of shock and haemorrhage, due to antemortem injuries. Police submitted the chargesheet against all the six named accused persons under Sections 147, 148 and 302/149 IPC. Learned Magistrate took cognizance of the offence. On finding that the offence is exclusively triable by Court of Session, the Magistrate committed the case to the Court of Session, where charge under Sections 147, 148, 302/149 IPC, was framed against the accused Badan Singh, Nem Singh, Hanshraj, Radhey Shyam. The accused persons pleaded not guilty to said charges and claimed to be tried. Thereupon, the accused persons were put on trial. The prosecution examined PW-1, defacto complainant, Jaiveer Singh, PW-2 Damodar, PW-3 Ram Nath, PW-4 S.I. Rajeshwar Prasad Mishra (Investigating Officer), PW-5, Doctor Raghuvansh Kumar, author of postmortem examination report. After conclusion of prosecution evidence, the statement of accused persons was recorded by learned trial court under Section 313 Cr.P.C., wherein they stated that the witnesses of fact have deposed against them due to village partibandi. They have given false evidence due to enmity and the PW-5, Dr. Raghuvansh Kumar, has prepared a false post mortem examination report. The accused persons did not adduce any defence evidence. Their defence is that of denial and false implication. Learned trial court finding evidence of witnesses of fact i.e. PW-1 Jaiveer Singh, PW-2 Damodar and PW-3 Ram Nath, as reliable and medical evidence compatible with the ocular account given by the PW-1, 2 and 3, convicted and sentenced the appellants as above. During pendency of appeal before this Court, accused Badan Singh, who has been attributed motive and main role in prosecution version, died and appeal was abated qua him on account of his death.
4. The main plank of arguments advanced by learned counsel for the appellants summarized as follows:-
(i) Post mortem examination of the deceased was conducted on 4.3.1993, at around 1:30 PM, in which time of death was noted as one and half day and it is also stated therein that rigor mortis was present in lower extremities and semi digested food was found in lower stomach. The postmortem was conducted after 41 hours of the time of death recorded in FIR. The time of death estimated in postmortem report is not in consonance with contents of the stomach and state of rigor mortis on dead body. If deceased died at around 10:00 PM, as per prosecution version, the presence of semi digested food in stomach is not possible.
(ii) There are major contradictions in the statements of the witnesses, which gives grave suspicion regarding their presence on the spot, at the time of incident. In site plan, the presence of witnesses is shown as 110 steps away from the place of incident, whereas the witnesses stated that they were 20-30 steps away from the place of incident. Thus, according to the site plan prepared by the Investigating Officer, it was not possible for the witnesses to identify the assailants in the moon light and that too, the nature of weapon was also identified by them according to their own version.
(iii) The motive has been attributed to deceased appellant Badan Singh only in FIR and no motive has been attributed to present appellants, however, the conviction has been recorded under Section 302/149 IPC, simpliciter against all accused persons, which implies that the prosecution has failed to prove its case with regard to prior meeting of mind and prior consent among the appellants before the commission of alleged murder.
(iv) According to the prosecution case, the death of Mukesh occurred at 8:00 PM on fateful day whereas the state of rigor mortis and stomach contents shown in medical evidence suggests that the death might have occurred in morning hours of 3.3.1993, as this is settled position of law that in case of doubt or whether two views are possible regarding time of death, the view which is favourable to the accused should be adopted, by the court. In postmortem report of the deceased, injury No.9 shows that multiple incised wound on front of male organ of the deceased, ranging from skin to muscle deep, were found during postmortem. This reveals that accused was done away in retaliation of his sexual promiscuity. In fact, deceased was killed somewhere else by some other person and dead body was dumped on the alleged place of incident and accused persons were named in the FIR due to village partibandi.
(v) Informant is a murder convict and deceased also faced trial for committing murder of real brother and alleged eye witnesses namely, Damodar and Ram Nath are also accused of murder of the brother of appellant Radhey Shyam, thus the informant as well as his brother deceased Mukesh were the men of bad character and were having many enemies. In fact, deceased was killed near village Midhawali from where, the village of informant is far away i.e. around one and half kilometres and no prudent person would go to ease himself within the boundary of another village, that too, in the night, which itself suggests that he was killed by some unknown miscreants. The prosecution failed to explain the medical inconsistency with ocular testimony of witnesses in the case. There is apparent contradiction in the statement of PW-1 on the one hand and PW-2 on the other hand to sequence of events. PW-1 in his sworn testimony has stated that he was convicted and sentenced to imprisonment for life in a murder case but he intentionally concealed the name of the victim. In cross-examination, he has admitted that deceased was accused in murder of the brother of accused Radhey Shyam alongwith some other accused persons. The deceased went to ease himself in the fateful night in his presence. He has deviated from his statement under Section 161 Cr.P.C. recorded by the Investigating Officer and pointed that in his statement under Section 161 Cr.P.C., it is stated that on 2.3.1993, at 7:00 PM his mother has stated to his deceased brother to take meal whereupon he stated that on coming back from easing himself, he would take meal and proceeded towards field. The informant has stated as PW-1 that he is unable to explain as to how the Investigating Officer has recorded his statement in such a manner. He has even stated before the Court that the deceased went to ease himself at around 8:00 PM and he was following him by making a distance all alone. The accused was 50-60 meters away from the place from where he saw them for the first time. The accused persons assaulted his brother in the field where crop of wheat was standing. PW-2 and 3 has stated in their statement that they were sitting in the 'atta chakki' of the informant on the date of incident, at around 7:00 PM, where his mother came and asked him to go and look for Mukesh, who has gone to defecate, whereupon, they went towards field alongwith informant and when they reached near the field of Badan Singh, they found that the accused persons were assaulting Mukesh by their respective weapons. They identified the accused persons in the moon light. The accused fled away from the place after killing Mukesh.
(vi) Apparent contradictions with regard to sequence of events in the statements of prosecution witnesses itself shows that prosecution version is concocted and false. In fact, none of the witnesses had seen the incident in which deceased was killed.
(vii) The Investigating Officer has stated in his evidence that site plan Ex.Ka-15 was prepared on instructions of PW-1, the informant. If that was so, he ought to have communicated the points in the site plan from where the witnesses of fact had seen the occurrence. The injuries found on the person of deceased are not compatible with the ocular account of so-called eye-witnesses. No weapon of assault has been recovered from possession or pointing out of any of the appellants and only two empty cartridges are shown to be recovered from the place of incident whereas this is not prosecution case that the accused persons were armed with firearm or any firearm injury has been found on the person of deceased.
5. Learned counsel for the appellants lastly submitted that the learned trial court has misappreciated the evidence on record and convicted and sentenced the appellants contrary to law.
6. Per contra, learned AGA submitted that the learned trial court has convicted and sentenced the appellants in just and proper manner after giving a due consideration of facts and circumstances of the case and appreciating the evidence on record. The case is based on direct evidence of eye witnesses and barring a few contradictions, which occurred due to lapse of time in statement of witnesses from their previous statements, there is no strong contradictions in their statements. The defence failed to point out any substantive infirmity in judgment under appeal. Appeal is liable to be dismissed and the impugned judgment and order should be affirmed in the larger interest of justice.
8. The accused persons are charged by the trial court vide order dated 14.9.1994, in following manner:-
"That you on 2.3.1993, at about 8:00 PM, in the Jungle of village Jeegan Chandai, within the circle of police station Kurawali, District Mainpuri, were member of an unlawful assembly, the common object of which was to commit murder of Mukesh and committed riot and thereby you committed an offence punishable under Section 147 IPC and within the cognizance of this Court.
Secondly, that you on the aforesaid date, time and place alongwith co-accused Badan Singh, Nem Singh, Hansraj and Radhey Shyam, in furtherance of the common object of the said unlawful assembly committed murder of Mukesh and thereby you committed an offence punishable under Section 302 read with Section 149 IPC and within the cognizance of this Court."
8. PW-1, complainant Jaivir Singh, has been examined by prosecution as complainant and eye witness of the incident. He has stated that Badan Singh and his party were having enmity with the complainant. On the day of this incident his brother, Mukesh, had gone to ease towards south-west of his village in the fields of Chandrapal, where Hansraj, Suresh, Vedram, Nem Singh and Radehy Shyam were already hidden. Badan Singh and Nem Singh were having Dhariya, Suresh and Vedram were having Lathi, Hansraj and Radhey Shyam were having knives. They got apprehended Mukesh and started assaulting him by Dhariya, lathi and knives. He, Damodar, Radhey shyam, Ramnath and other residents of his village reached at the spot. In the moon light, they saw that accused persons were beating Mukesh. Mukesh died on the spot due to beating given by the accused. Accused persons had run away towards Jigan. Complainant could not go to lodge the FIR in the night due to fear of the accused persons. He went to police station to lodge the FIR, which is Ex.Ka-1, early in the morning.
9. PW-2, Damodar, has also been examined by prosecution as eye witness of this incident. He has stated that he was sitting at about 7:00 PM, at Atta Chakki (mini flour mill) of Jaivir Singh alongwith Ram Nath, Jaivir Singh and Radhey Shyam, where mother of Jaivir Singh had come and informed that Mukesh had gone to ease himself and they should go to see him. The witness, Ram Nath, Radhey Shyam, Jaivir Singh had gone to see Mukesh. When they reached at the field of Badan Singh, they saw Mukesh in the field of Chandra Pal, where accused Badan Singh, Nem Singh, Hansraj, Radhey Shyam, Vedram and Suresh were beating Mukesh by Dhariya, lathi, and knives. All the accused persons have killed Mukesh and they wee identified by them in the moon light. After committing the murder of Mukesh, accused persons ran away towards Jigan.
10. PW-3, Ram Nath, has also been examined by the prosecution as eye-witness of this incident and he has also corroborated the testimony of PW-2, Damodar.
11. PW-4, S.I. Rajeshwar Prasad, has been examined by prosecution as I.O. of this case. He has stated that on 3.3.1993, the FIR was lodged by Jaivir Singh and a Case Crime No.100 of 1993, under Sections 147, 148, 302/149 IPC was registered at police station Kurawali. Chik FIR and G.D. were written by Sudhir Kumar, Head Constable. The handwriting of Sudhir Kumar is known to him. He himself investigated this case. Inquest report of the dead body was got prepared by him. He had interrogated the witnesses and arrested the accused persons during investigation of this case. After completing the investigation, he had submitted the chargesheet against the accused persons.
12. PW-5, Dr. Raghuvansh Kumar, has been examined by prosecution as author of postmortem report of deceased. He has stated in his testimony before the Court that at the time of examination of dead body of deceased Mukesh, postmortem staining was present in the back portion of the dead body and rigor mortis was passed away from the upper extremities of the dead body but present in lower extremities. No sign of decomposition seen. He found following antemortem injuries on the person of deceased Mukesh:-
1. Stab wound 8cm x 3.5 cm x abdominal cavity deep on the front of abdomen right side intending up to mid line in the epigestrium rigion vertically placed. Margins clean cut. Loops or intestine had come out through the wound.
2. Incised wound 1.5cm x 1cm x muscle deep, on front side abdomen, just below cloistral margins. 11cm above from mid line. Margins clean cut. Obliquely placed.
3. Stab wound of 1.5cm x 0.5cm x abdominal cavity deep, on front of right side abdomen. 7cm away from umbilicus at 10 o'clock position. Margins clean cut. Obliquely placed.
4. Stab wound of 2cm x 1cm x thoracic cavity deep, on front of left side chest. 8cm from left nipple at 5 o'clock position horizontally placed. Both angles acute. Margins clean cut.
5. 4 incised wound on front of neck right side in an area of 6cm x 3cm, 1cm below right angel of mandible. All are muscle deep. Size vary from 2cm x 0.5 cm to 1cm x 0.3cm. Margins are clean cut. Obliquely placed.
6. Two incised wound of 2cm x 0.5 cm x muscle deep and 1.5cm x 9.5cm x muscle deep, on front of the neck, left side, 4cm above clavicle. Horizontally placed. Tail inwards.
7. Multiple incised wound on front of nose, skin to muscle deep, size varying from 2cm x 1cm to 1.5cm x 0.2cm. Margins clean cut.
8. Multiple incised wound on front of right side face in an area of 7cm x 6cm, just in front of right ear. All are muscle deep. Size varying from 1.5cm x 0.5cm to 1cm x 0.4cm. Obliquely placed. Margins clean cut.
9. Multiple incised wound on front of penis skin to muscle deep size varying from 2cm x 0.5cm to 1cm x 0.2cm.
10. Multiple incised wound on right inguinal region. All are muscle deep. Size varying from 2.5cm x 1cm to 0.5cm x 0.2cm. Obliquely placed.
11. Multiple abrasions in a circle of 5cm diameter on back of abdomen right side, 4cm away from mind line, size varying from 1cm x 0.5 cm to 0.3cm x 0.2cm.
12. Incised wound of 5cm x 1cm x muscle deep on back of neck, right side in upper half, 4cm behind right ear. Tail backwards. Margins clean cut.
13. Incised wound 6cm x 0.5 cm x scalp deep on top of head. Margins clean cut. Tail backwards.
13. Chargesheet Ex.Ka-16, recovery memo of blood stained earth Ex.Ka-10, search memo Ex.Ka-11 to Ex.Ka-15, site plan Ex.Ka-9, inquest report Ex.Ka-3, specimen seal Ex.Ka-4, Letter to R.I. Ex.Ka-5, letter to C.M.O. Ex.Ka-6, sketch photo of dead body Ex.Ka-7, police form No.13 Ex.Ka-8, chik FIR Ex.Ka-2, written report Ex.Ka-1, postmortem report Ex.Ka-17, have been produced as documentary evidence by the prosecution in this case.
14. On internal examination of left lungs, pericordium were found punchured, left side of heart punchture. Both chambers of heart were empty. In thoracic cavity contents, about one litre of blood was found on left side. In stomach content, about 5 ounces of semi digested food material, was found in paste form. Small intestine was half filled and large intestine was half filled with faecal material and gases. One shirt, one underwear and one towel were recovered from dead body and entrusted to police constables, accompanying the dead body. All were blood stained.
15. One of the main contention of learned counsel for the appellant is that in FIR, time of incident, is shown as 22:00 hours on 2.3.1993, which shows that homicidal death of Mukesh occurred on 2.3.1993, at around 10:00 PM, in the limit of village Jigan Chandai, falling under police station Kurawali, District Mainpuri. This is the case of prosecution that the deceased died on the spot due to multiple incised injuries caused by knives, axe (farsa), lathi and sticks by accused persons. This is also stated in statement of witnesses of fact that incident occurred on fateful day at around 8:00 PM. According to learned counsel for the appellants, from perusal of rigor mortis, appearing on the dead body at the time of post mortem examination and contents of stomach, it appears that the death could not have occurred at that time, as this fact has emerged in evidence of witnesses that the deceased had not taken meal prior to the incident and he had gone to ease himself to a distant place in the village. He was fatally assaulted by accused persons in the field of one Chandra Pal (non accused). According to learned counsel for the appellants, death might have occurred after 12 O'clock, in the fateful night, according to the medical evidence appearing from post mortem examination report of the deceased, which was caused by some unknown person and on next date, the informant lodged an FIR with concocted and false version after consultations and deliberations.
16. Learned counsel for the appellants placed reliance on a judgement of this Court in Criminal Appeal No.839 of 2005 (Raja Ram vs. State of U.P.), decided on 29.4.2019, wherein this Court has observed as under:
"How rigor mortis sets in and passes off has been described in "Parikh's Text Book of Medical Jurisprudence, Forensic Medicine and Toxicology, Eight Edition at page 158, as under;-
"In India, rigor mortis commences in 2-3 hours, takes about 12 hours to develop from head to foot, persists for another 12 hours, and takes about 12 hours to pass off. Thus, the presence and extent or absence of rigor mortis helps to provide a rough estimate of the time since death. As for example, if rigor mortis has not set in, the time since death would be within 2 hours and if it has affected the whole body, the time since death would be within about 12-24 hours."
This rule is commonly known as Rule of 12. PW-5, the doctor after noticing the condition of both the corpses opined that rigor mortis had passed off, foul odour, emanating from the bodies, skin peeled off, blisters present and maggots appearing, suggesting that more than 37-38 hours had elapsed since the time of death ie, death may have taken place around 12 A.M contra to 7 A.M. Though rigor mortis in itself is not conclusive evidence as it is dependent upon factors such as age and condition of the body, mode of death and surroundings. There could be a variation of 6 hours on either side as to the time of death. But this `anomalous position is further evident with the glaring contradictions between the ocular and medical evidence. Ordinarily in the event of a conflict between the oral and the medical testimony, former is to prevail. However, in the present case said proposition will not hold good as contradictions are glaring and writ large which cannot be ignored as trivial or minor so as to rely upon ocular account of witnesses whose presence at the scene is in grave doubt."
17. PW-1, Jaivir Singh, has stated during cross-examination on page No.6 of his testimony that Mukesh had taken meal at around 8:00 to 9:00 hour in the morning. He followed Mukesh up to some distance. He had not given such statement to the Investigating Officer that he went to his Atta Chakki (flour mill) where Radhey Shyam and Damodar met him and from them, he was apprised that his brother, Mukesh, had gone to ease himself by wearing a colour towel towards water 'Bamba' situated in the south of the village. The witness stated that how the Investigating Officer has recorded such statement, he is unable to state its reasons.
18. If we consider the above statement of PW-1, the brother of the deceased that deceased had taken meal around 8:00 to 9:00 A.M., this suggests that deceased had not taken meal around 12 hours prior to the incident and in that case, the food must have descended in the large intestine in the form of faecal matter. If we assume that he had not defecated in between this period, on the basis of statements of the witnesses, the presence of semi digested food in the stomach shows that the deceased would have taken meal 2 to 3 hours prior to the incident. Apart from above statement, no other evidence has surfaced regarding taking of meal by the deceased on the fateful day. PW-1 has denied his statement under Section 161 Cr.P.C. recorded by the Investigating Officer that on 2.9.1993, at 7:00 to 8:00 PM, his mother asked his brother, Mukesh, to have meal, whereupon, he stated that he would take meal after easing himself and thereafter, he left the home to get himself eased out. He stated that how the Investigating Officer has recorded such statement, he is unable to state. He stated that he was aware Mukesh had gone to ease himself. He was not on speaking terms with his mother. The witness also disowned his statement under Section 161 Cr.P.C. recorded by Investigating Officer that his mother stated to him that Mukesh had gone to ease himself and did not come back, go and see that where he was lying. He further stated that he stood in the supervision of his brother due to old enmities. Mukesh had gone to ease himself without having taken any pot or bottle with him. There was a water 'bamba' and at that time, the drain was filled by water, however, the canal of tube-well was not filled with water, due to lack of power supply. The water 'bamba' is 2 to 3 fields away from his Atta Chakki (flour mill), which is around one and half kilometres. His brother went to ease himself around 8:00 PM. He had seen him going and followed him up to some distance, all alone. At that time, no accused visited his Atta Chakki. The canal was lying after 'bamba', which was broken. This is true that the 'bamba' and canal are adjacent to each other. The field of Chandra pal is 50 yards away from said canal and field of Badan Singh is 1 yard away from field of Chandrapal. The postmortem examination on the dead body of the deceased was conducted on 4.3.1993, at around 1:30 PM. PW-5, the author of postmortem examination report, Dr. Raghvansh Kumar, has estimated the probable time of death as one and half day, accordingly, the probable time of death should be around 1:30:00 hours, in the intervening night of 2/3.3.1993. This opinion is based on state of rigor mortis found on dead body and contents of stomach during post mortem examination.
19. Hon'ble Supreme Court in Ram Swaroop vs. State, AIR 2000 SUPREME COURT 715 held that doctor can never be absolutely certain on the point of time so far as duration of injuries are concerned. However, while ascertaining the time of the death, as stated by eye-witnesses, in juxtaposition of that opined by the Doctor, who is expert and neutral witness, the opinion of the Doctor cannot be brushed aside altogether. This fact is also noteworthy that the incident occurred in the month of March, 1993, which is not a winter season and decomposition of dead body starts earlier than that occurs in winter season.
20. In Modi's Textbook of Medical Juriprudence and Taxicology, 27th Edition, it is observed at Page No.395 that "it is said that putrefaction follows the disappearance of the rigor mortis, but this is not always the case; since, in northern India, especially during hot months from April to October, it commence before rigor mortis has completely passed off from the lower extremity. India being a vast country, the climatic conditions vary so much in different parts that it is impossible to give the exact time when the putrefaction process develop in a dead body. The blood acts as a good medium for their growth and spread. The two characteristics features of putrefaction or decomposition are the color changes and the development of the foul smelling gases. At Page No.396, it is observed "From 12 to 18 hours after death in summer, the green coloration spreads over the entire abdomen and the external genitals. Green patches also make their appearance successively on the chest, neck, face, arms and legs. These patches gradually deepen in color and later become purple and dark blue. They are at first separate and distinct, but later coalesce together, and the whole skin of the body appears discolored. From 12 to 18 hours after death in summer, foul smelling gases collect in the intestine, resulting in the swelling up of the abdomen. The sphincters relax, and urine and faeces may escape."
21. From above observations, it appears that process of decomposition begins in the season of summer, after 12 to 18 hours of the death whereas in the present case, even after 42 hours of the timing of death appearing in the statement of the witnesses, the Doctor did not notice process of decomposition in the dead body. This also indicates that the death might have occurred at the time stated by the witnesses and utmost being occurred some time thereafter, either in mid night or in wee hours of following day.
22. The main motive of commission of offence has been attributed to accused Badan Singh, who died during pendency of present appeal. No specific motive has been attributed to present appellants. The witnesses have stated that they are eye witnesses of the incident and the case is based on direct evidence of PW-1 and PW-3. There is inconsistency in the evidence with regard to sequence of events. PW-1 has deviated from his previous statement under Section 161 Cr.P.C. recorded by the Investigating Officer during investigation, for reasons best known to him. The witnesses have stated that they had identified accused persons in the moon light and the witnesses and accused persons being co-villagers, the statement of prosecution witnesses cannot be faulted with on this score. In inquest report of deceased Mukesh, which commenced at 17:00 hours and concluded at 17:40 hours, case crime number and sections are added in different ink whereas the FIR was lodged in the case at 16:10 hours on 3.3.1993. The name of informant is also filled up in different ink in the first page of inquest report, which shows that all the entries in inquest report were not made in same process.
23. Main prosecution witnesses i.e. witnesses of fact, namely, PW-1 Jaivir Singh, who is real brother of the deceased and PW-2 and PW-3 are admittedly accused in murder of the brother of appellant Radhey Shyam and these two witnesses cannot be termed as independent witnesses, as they are having their own interest in conviction of atleast one of the appellants. PW-1 has admitted that he has been convicted in a murder case and sentenced to life imprisonment but he failed to disclose the name of the deceased in that case. This is quite unnatural that a person, who has been convicted and sentenced for committing the murder of person, would not be knowing or failed to recollect the name of deceased. Deceased Mukesh was also an accused in murder of one of his brothers namely, Ramvir. PW-1, has stated during cross-examination that his deceased brother went to ease himself towards agricultural field before him. He further stated that he has stated to Investigating Officer that Mukesh went to ease himself from his Atta Chakki (flour mill). This is admitted position that the house of the informant and his atta chakki are not situated under one roof. Therefore, the witness is not certain as to whether the deceased went to ease himself from his home or his atta chakki where the informant and witnesses were present subsequent to his departure. The witness has disowned his statement under Section 161 Cr.P.C. during cross-examination that on the fateful day, at around 7:00 PM, his mother asked his brother, Mukesh, to take meal but he stated that he would take meal after coming back from easing himself and went to defacate. He has even stated that he is not on talking terms with his mother.
24. PW-1, Jaivir Singh, has disowned his statement recorded under Section 161 Cr.P.C. that his mother informed him that Mukesh had gone to ease himself but did not come back, go and see where he is lying whereas PW-2 and PW-3, who are his witnesses have stated in their statements that on fateful day, at around 7:00 PM, they were sitting alongwith Jaivir Singh near his atta chakki, his mother came there and asked Jaivir Singh to go and see Mukesh, who had gone to ease himself, whereupon, they went in search of Mukesh and when they reached at the filed of Badan Singh, they saw that Mukesh was in the filed of Chandrapal and accused persons were assaulting him by Dhariya, lathi, sticks and knives. They identified the accused persons in the moon light. PW-1 and PW-2, stated in cross-examination that in village Jigan Chandai, there is partibandi, between Jaivir Singh (informant) and BadanSingh (accused). Some villagers are towards Jaivir Singh and some towards Badan Singh. Accused Badan Singh was village pradhan at the time of incident.
25. PW-2, Damodar, has clarified that Mukesh had gone to ease himself from his home and not from 'atta chakki', at around 7:00 P.M., whereas he visited the chakki of Jaivir Singh, at around 7:00 P.M. and at that time, Jaivir Singh was on chakki. The mother of deceased visited the chakki and informed that Mukesh had gone to ease himself. The witness disowned his statement under Section 161 Cr.P.C. that when he was present at the chakki together with co-villagers namely, Radhey Shyam and Ram Nath and then Jaivir Singh came there and asked from them about his brother Mukesh, who had gone to ease himself but did not come back and stated to them that let's go and see him. He also stated that he has gone wearing 'baniyan and underwear'. The witness stated that how the Investigating Officer recorded this statement, he is not able to explain. He clarified that he, Jaivir, Ram Nath and Radhey Shyam went to see Mukesh from chakki. They were empty handed. Mukesh fell down in supine position after being assaulted by accused persons. He had worn his underwear at that time. He stated that he had seen the incident from 20 to 25 steps and if the Investigating Officer had shown it at 110 steps, he is unable to disclose its reason. He stated that he did not chase the miscreants. They had not assaulted the witnesses. He denied the defence suggestion that Mukesh was killed in darkness and they had seen nothing and he was deposing against accused persons due to enmity and village partibandi.
26. PW-3, Ram Nath, has also stated in his evidence that he was sitting in the chakki of Jaivir Singh together with Chandrapal and Brijbhan, mother of Mukesh visited the chakki and informed that Mukesh had gone to ease himself, thereupon, he, Radhey Shyam, Damodar and Jaivir Singh went to see Mukesh. There was linseed and garlic shown in the fields at the place of incident. PW-2 and PW-3 admitted that they were accused in murder of Virendra, who was brother of accused Radhey Shyam. The witness denied the defence suggestion that deceased was sleeping in the house of Chandrapal on fateful night and they got the information of his death in the morning of next day and then visited the spot. He had also denied the defence suggestion that deceased was killed by unknown person due to his sexual indulgence and the accused persons are implicated due to enmity. Thus, where PW-2 has stated in his evidence that they received information regarding Mukesh from his mother, when he was sitting in the chakki of Jaivir Singh altogether with Ram Nath and Radhey Shyam, PW-3, Ram Nath, had stated that he was sitting with Jaivir, Damodar, Chandrapal and Brijbhan in the chakki of Jaivir Singh. Thus, the statement of eye-witnesses is not consistent on this point.
27. In postmortem examination report of the deceased as many as 13 injuries are found on the person of deceased, out of which 12 injuries were caused by sharp edged/pointed weapon. Injury No.9 is shown as "Multiple incised wound on front of penis skin to muscle deep, size varying from 2cm x 0.5cm to 1cm x 0.2cm." This injury, including a large number of incised wounds on other parts of body, is indicative of the fact that deceased was killed in retaliation of his involvement in some illicit sexual indulgence or sexually deviant behaviour, which is defence case as appearing from suggestion given by defence counsel to prosecution witnesses.
28. In view of foregoing discussions and discrepancies in the prosecution case, which is based on said eye-witness account of PW-1, PW-2 and PW-3, it is manifest that the prosecution has failed to prove the case against the appellants beyond reasonable doubt. The contradiction in statement of the witnesses from their previous statement recorded during investigation on material particulars, mode and manner of receiving information of movement of the deceased from his home and mutual inconsistency between statement of PW-1, on the one hand and that of PW-2 and PW-3 on the other hand are significant. The prosecution case that PW-1, PW-2 and PW-3 had seen the incident appears doubtful and does not inspire confidence. The injuries on male organ of the deceased also suggest that he was killed in retaliation of some illicit sexual act or relationship, although this is not revealed during trial. Learned trial court has failed to appreciate the evidence on record in proper perspective and failed to take into consideration the discrepancies pointed out and appearing in the prosecution case. The FIR in present case is belated and finds no plausible explanation either in FIR itself or in statement of prosecution witnesses recorded during trial. The incident as said to have occurred at around 8:00 PM on 2.3.1993 and FIR was lodged on the next day on 3.3.1993, at 16:10 hours. The distance of place of incident from police station is 8 kms. Therefore, there is 20 hours delay in lodging of FIR. If, the version of the informant in FIR that being scared by the incident, they could not visit the police station to lodge the FIR is accepted as natural course of conduct of the informant, even then, the FIR should have been lodged in the early hours of following day. Thus, the delay in lodging of the FIR gives ample scope for embellishment, after thought and concoction. The impugned judgement is not sustainable under law and deserves to be set aside.
29. In the result, the conviction and sentence of the appellants recorded by the trial court against the appellants is set aside. Consequently, the appeal stands allowed and the appellants are acquitted of all charges. Their bail bonds produced in present criminal appeal are cancelled and sureties stand discharged.
30. The appellants are directed to file bail bonds and sureties to the satisfaction of the court concerned or before the Court of Session, as the case may be, within a period of one week from today, in compliance of Section 437-A of Cr.P.C.
Order Date :- 20.02.2024 Kamarjahan