Allahabad High Court
Ram Sewak And Etc. vs State Of U.P. on 22 May, 2002
Equivalent citations: 2002CRILJ3660
Author: Imtiyaz Murtaza
Bench: J.C. Gupta, Imtiyaz Murtaza
JUDGMENT Imtiyaz Murtaza, J.
1. These are two connected appeals against the judgment and order dated 18-4-1981 passed by the then 1st Additional District and Sessions Judge, Budaun whereby appellant-Ram Sewak has been convicted and sentenced to imprisonment for life under Section 302, I.P.C. and to three years' rigorous imprisonment under Sections 307/34, I.P.C. Appellant Pradeep Kumar alias Pannoo alias Fattey of Criminal Appeal No. 1254 of 1981 and imprisonment for life under Section 302 read with Section 34, I.P.C. Both the sentences of both the appellants have been ordered to run concurrently.
2. Appellant-Pradeep Kumar alias Pannoo alias Fattey expired during the pendency as was reported by the Chief Judicial Magistrate concerned. His appeal has, therefore, abated.
3. The prosecution case in short is that a theft had been committed in the house of one Chhotey and he had approached Mehshar deceased to get the stolen articles returned by Pannoo and Ram Sewak. It is alleged that on 2-10-77 Pannoo had promised to return the stolen articles in the evening. It is further alleged that at 7.00 p.m. in the evening Napa-the informant, was standing at the crossing of Mohalla Shahbazpur. The appellant along with two other accused came and asked him to call his brothers so that the stolen articles could be returned. Nawab went and called his brothers Mehshar and Kausar and as they reached at the crossing and asked about stolen articles Ram Sewak appellant took out a knife and Mehshar seeing the knife turned to run away and as soon as he turned Ram Sewak gave a knife blow on his back. Mehshar fell down and Kausar tried to catch hold of Ram Sewak. It is alleged that Vir Pal exhorted Pannoo to kill Kausar. Then Pannoo gave knife blow to Kausar on his back. It is alleged that several witnesses namely Jamil, Anwar and Rais Ahmad came and when they accosted the accused they all ran away. Nawab and some others took the two injured to Hospital and as soon as they reached the hospital Mehshar succumbed to his injuries. Kausar was admitted in the Hospital. The report was lodged at Police Station Korwali at 9.05 p.m. The police after investigation had submitted charge-sheet and after committal of the case to the Court of Session the charges were framed against Ram Sewak, Pannoo and Vir Pal.
4. The Sessions Judge convicted appellants-Ram Sewak and Pannoo and Vir Pal was acquitted of the charges. Both the convicted appellants preferred appeal before this Court. The appeal of Pannoo had abated on account of his death.
5. The prosecution has examined in all nine witnesses. P.W. 1 Nawab, P.W. 2 Kausar and P.W. 3 Anwar are the eye-witnesses and P.W. 4 T. C. Sharma had conducted the postmortem. P.W. 5 is Sub-Inspector Raghunath Singh, who had submitted charge-sheet against acquitted accused Vir Pal. P.W. 6 is S.P.S. Chauhan, Executive Magistrate, who had conducted the identification parade of accused Vir Pal. P.W. 7 Nem Singh is Investigating Officer, who had proved chick F.I.R. Ex. Ka-5 and G. D. entries Ex. Ka-6 written by Head Moharrir Harnam Singh. He has also proved report No. 42 about the death of Mehshar Ex. Ka-7. After registration of first information report he reached the place of occurrence and recorded the statements of Nawab, Rais Ahmad, Jamil and Anwar and he had made a spot inspection and prepared the site plan Ex. Ka-8 and took the bloodstained and plain earth and prepared fard Ex. Ka-9. On 3-10-77 he also prepared the inquest report, diagram and challan lash Exts. Ka-10 to 12 and sent the dead body of the deceased for post-mortem examination, he had prepared fard of blood-stained Tahmad and Lungi Ex. Ka-13. He had also prepared fard of blood-stained banyan Ex. Ka-14 and had also recorded the statement of Chhotey on 10-10-77 and on 6-11-77 statement of Smt. Devi w/o Chhotey was recorded and then submitted the charge-sheet.
6. In the cross-examination he has stated that the case was registered as Case Crime No. 902 but in Ex. Ka-13 and 11 case crime number is mentioned as 901. In the inquest report Ex. Ka-10 case crime number is mentioned as Crime No. 901. In Ex. Ka-6 and Ex. Ka-7 case crime number is mentioned as 901 and he had mentioned that due to some mistake Moharrir had mentioned case number as case crime number 901 in place of Case Crime No. 902 and on that account he had also committed the mistake. He has also admitted that he had not taken any bloodstained cloth of Nawab. P.W. 8 is Dr. S. C. Agrawal. He had medically examined the deceased as well as the injured and following injuries were found on the body of Mehshar and Kausar:-
Injuries of Mehshar:
Oblique incised wound 1 /12" x W x cavity on the middle of back in the inter-scapular region. Margins clean cut. Duration fresh caused by sharp weapon."
Injuries of Kausar :
Oblique incised wound 3/4" x W x Cavity on the middle of right side of back. Margins clean cut. Duration fresh caused by sharp weapon.
Subsequently Mehshar had died and the post-mortem on his body was conducted by Dr. T.C. Sharma PW-4 and following ante-mortem injuries were found and cause of death was shock and haemorrhage :- An oblique incised wound 3 cms x 1 cm x chest cavity deep. Bleeding on the upper part of middle of back of chest between the shoulder blades.
7. In the cross-examination he has admitted that copy of the injury report was handed over to the relative of injured. His name was either Nabi Hasan or Mehdi Hasan. PW-9 is Constable Prakash Chand of Police Station Wazirganj, who in his affidavit has stated that he had taken the dead body from the mortuary in a sealed condition to the Hospital.
8. P.W. 1 is the complainant of the case. In his statement in Court he has supported the prosecution case and has stated that on 2-10-1977 at about 7.00 p.m. when he was standing at the crossing of Mohalla Shahbazpur all the three accused came and asked him to call his brothers so that the stolen articles could be returned. He went to his house and called Mehshar and Kausar. It is further stated that when they came at the crossing and asked them about the stolen articles Ram Sewak took out a knife and seeing the knife Mehshar turned to run away and as soon as he turned Ram Sewak gave a knife blow on his back. Mehshar fell down and Kausar tried to catch hold of Ram Sewak. It is further stated that on the exhortation of Vir Pal, Pannoo gave a knife blow on the back of Kausar. It is further stated by the him that he had taken injured, to the Hospital.
9. He has further stated that as soon as he reached the Hospital he had found that his brother Mehshar had succumbed to his injuries and he had left the Hospital for lodging the report. He has also stated in his statement that for the last about 10 years he is selling clothes in Kanpur and most of the time he stays in Kanpur and occasionally he comes to Budaun. He had not met the Doctor who had medically examined the injured. He has admitted that he had not got his brothers admitted in the Hospital.
10. As regards the motive of occurrence he has stated that about one month back a theft was committed in the house of Chhotey and he had not lodged any report at the police station nor any panchayat was held regarding theft in his house. Chhotey had told . about the theft only to him and this too had taken about a month back. Chhotey had asked Mehshar for returning the stolen articles. He has also stated that he had mentioned in the report that Chhotey had approached his brother for return of stolen articles, but why this fact is not mentioned in the report he cannot tell the reason. Mehshar had not asked Pannoo in his presence for return of stolen articles. This was told by Mehshar and why it is not mentioned in the report he cannot tell the reason. He has further stated that Mehshar and Pannoo were friends and on that account Chhotey had asked for returning the stolen, articles. He had not mentioned in the report that Pannoo and Mehshar, were friends nor it was, disclosed to the Investigating Officer. He has further stated that his brother had told him that he had threatened Pannoo for the return of stolen articles.
11. P.W. 2 is Kausar. He is brother of complainant and deceased. He had also received the injuries in the occurrence. He has stated that on the date of, occurrence his elder brother Nawab had come to call him. He has stated that Ram Sewak, Pannoo and one unknown person had called him and Mehshar for the return of stolen articles of Chhotey and they were standing on Gadaiya Shahbazpur corner. He along with Mehshar went there. Nawab had followed him! Ram Sewak asked Mehshar that whether he wanted the articles. At this Mehshar told him that he had promised in the morning for return of articles and he should return the same. In the meantime Ram Sewak took out knife from his pocket and Mehshar turned to run away but in the meantime Ram Sewak gave knife blow on his back. Mehshar fell down and blood started coming out. He ran to catch hold of Ram Sewak. At this the unknown person had exhorted Pannoo and he gave him a knife blow. Several persons including Jamil, Anwar and Rais Ahmad had collected there. The accused ran away. He has further stated that Nawab took him and Mehshar to the Hospital on a rickshaw and got admitted in the Hospital and as soon as Mehshar reached the Hospital he succumbed to his injury. He has stated that about 15 days back a theft was committed in the house of Chhotey and he had suspicion that Pannoo and Ram Sewak had committed the theft. Chhotey had complained him and Mehshar for the return of articles and in the morning they had promised to return the articles.
12. In the cross-examination he has stated that Chhotey had requested him as well as his brother Mehshar and this was not informed by them to Nawab. He has denied that he had not extended any threat to Pannoo. He has stated that when he reached the Hospital he was conscious and the Doctor had examined him. Nawab and Jamil had taken Mehshar on rickshaw and Anwar and Rais Ahmad were along with him. He had identified Vir Pal in jail.
13. P.W. 3 is Anwar. He has stated that on the date of occurrence at about 7.00 p.m. he was standing along with Nawab, Jamil and Rais Ahmad on the corner of Gadaiya Shahbazpur and Ram Sewak had asked Nawab to call his brothers Kausar and Mehshar because they were to return the stolen articles of Chhotey. Nawab went to the house and brought both of them. Mehshar asked them to give articles and Ram Sewak took out knife and seeing this he tried to run away towards the house. Ram Sewak gave a knife blow on his back and he fell down and when Kausar ran towards Ram Sewak the third person had challenged Pannoo and Pannoo took but knife and gave him blow on his back. Several persons had collected on the place of occurrence and accused persons ran away. They took the injured to the Hospital on a rickshaw. Mehshar succumbed to the injuries in the Hospital. He had not participated, in the identification - proceeding, in jail.
14. We have heard learned counsel for the parties and perused the record.
15. Learned counsel for the appellants has made the following submissions :-
(i) that there was no motive with the present appellants to make any assault on the deceased,
(ii) that the prosecution has suppressed the genesis of the origin of the occurrence and is thus guilty of presenting a distorted version. (ill) that the occurrence having occurred in darkness, the identity of the assailants was doubtful, and
(iv) that presence of PW 1 Nawab is extremely doubtful and First Information Report being a suspicious document has lost its all corroborative value.
16. As regards motive of the offence it is alleged that a theft had been committed in the house of one Chhotey and he had approached Kausar and Mehshar to prevail upon Ram Sewak and Pannoo to return the stolen articles. It is alleged that Mehshar had asked Pannoo to return the stolen articles and he had promised to return the articles in the evening and this is motive for committing the murder. The best person to prove this fact was either Chhotey or his wife Nanhi. but they both had filed affidavits and the prosecution did not examine them. The counsel for the appellant argued, that a motive has been alleged and it must be proved like any other fact. But since this case is of direct evidence, failure on the part of the prosecution to prove a motive, which they have alleged does not shatter the prosecution case.
17. However, complete absence of motive will assume significance if it is found that the prosecution has suppressed the genesis of the case. In this view of the matter, the evidence of the witnesses of fact is to be scrutinized carefully in the light of attending circumstances.
18. In this case evidence on record shows that Karuva, PW-2 had stated that he along with deceased had pressurized the appellants to return the stolen articles of Chhotey and had threatened them. The appellants had in fact no motive to commit the murder of the deceased or cause injuries to the injured Kausar.
19. Learned counsel for the appellants has argued that according to the prosecution occurrence took place at 7.00 p.m. on 2-10-77, but there is absolutely no mention of source of light, either in the first information report or in the statement of the witnesses. The Investigating Officer had also not mentioned any source of light in the site plan.
20. The Sessions Judge has observed that occurrence took place on a crossing in the heart of the town and one cannot expect that there will be no light.
21. P.W. 2 Kausar has stated in his statement that out of three shops at the chauraha two shops were closed and only one shop was open. The exact distance of the shop from the place of occurrence is not mentioned. Neither the nature of source of light is stated by any of the witness nor they have stated that any light of the shops was reaching at the place of occurrence. There is no presumption that if the occurrence took place near the chauraha then lights must have been reaching the place of occurrence. The witnesses should have stated about the source of light for recognizing the assailants. In this case the source of light achieves greater importance particularly because the deceased as well as injured had received solitary blow that too on their back. We thus find that it is difficult to hold that at the scene of occurrence sufficient light was available.
22. As far as presence of PW-1 Nawab is concerned, according to his statement he had taken the injured to the Hospital on a rickshaw but surprisingly no blood was found on his clothes nor the Investigating Officer had taken his clothes. It is highly surprising that if he had taken both the injured to the Hospital, who were his real brothers, even then no blood was found on his clothes. He has stated that he had taken injured to the Hospital but as soon as he reached there Mehshar had succumbed to his injuries. This fact is apparently wrong as Mehshar was medically examined by the Doctor and he had died later on. In the injury report the Doctor had not mentioned the name of Nawab as the person who had brought the injured to the Hospital. In order to fill up this lacuna Nawab has stated that as soon as he reached the Hospital Mehshar had died and he left him in the Hospital and himself went to lodge the report. This conduct is very unnatural. He had not cared for the medical examination of Kausar who was also his real brother. The Doctor in his statement has stated that the person who had brought the injured to the Hospital was the relative of the injured and he was either Nabi Hasan or Mehdi Hasan. He did not name Nawab as companion of Mehshar. These circumstances thus create a doubt in the presence of PW-1, Nawab Singh at the scene of occurrence.
23. P.W. 1 Nawab has admitted that he is selling clothes in Kanpur for the last about 10 years and normally he resides in Kanpur and occasionally comes to Budaun. He has admitted that he along with Kausar was involved in a case of assault by a knife in which he was acquitted. He has also admitted that he was prosecuted in the case under Section 294, I.P.C. in which he was acquitted.
24. The counsel for the appellants submitted that he is a man of shady character. PW-1 Nawab has admitted that he was involved in a case under Section 60 of the Excise Act and he was also prosecuted in a case of theft in which he was acquitted.
25. The most important circumstance which creates doubt in the presence of Nawab, PW-1 is that he has stated that he had lodged the report Ex. Ka-1 at the police station and he also stated that he had seen the report but surprisingly on Ex. Ka-1 his signature is missing. We have compared his signature, which was available on his statement recorded in Court and the first information report Ex. Ka-1. It is visible to the naked eye that Nawab had not signed the first information report. The Government Advocate has also admitted that Nawab's signature is not on the first information report. The Sessions Judge had not noticed the absence of signature of Nawab on the first information report. Another circumstance which creates doubt about the presence of PW-1 Nawab is that for the reasons best known to the prosecution Nawab did not participate in the identification proceeding of accused Vir Pal. He was the best witness who had seen the occurrence from the very inception but still the prosecution had not sent him for identification proceeding. Why, the reason has not been furnished by the prosecution.
26. In this case lodging of the first information report is also very suspicious. In the general diary the crime number of the case is mentioned as 901 whereas the crime number of this case is 902. The Investigating Officer has also not explained this discrepancy. The Investigating Officer PW-7, Sub-Inspector Nem Singh has stated that on Ex. Ka-13 and Ka-11 crime number is mentioned as 901 and the inquest was also prepared respecting Case Crime No. 901 and in the two fards also which were prepared by the Investigating Officer the crime number is mentioned as 901. The explanation given by the Investigating Officer that due to terror of Moharrir this mistake had occurred cannot be accepted for a moment. On account of mistake in the crime number as well as the absence of signature of PW-1 Nawab on the first information report A reasonable suspicion arises regarding authenticity of the first information report. The scribe of the report was also not produced.
27. In the circumstances we think that there is a great force in the submission of the learned counsel for the appellant that the first information report is a fabricated document and was brought into existence long after the occurrence, therefore, the entire prosecution case becomes suspicious. So far as witness Kausar is concerned it cannot be doubted that he was not present at the time of occurrence, as he is an injured witness. But once the first information report is found to be a doubtful document then entire prosecution case fails. Even otherwise also his testimony shows that he has suppressed the real genesis of occurrence. He has purposely tried to explain the injuries received by Mehshar and himself on back by saying that every time when a blow was attempted both of them turned. Surprisingly both had received a solitary blow on their back.
28. The evidence and circumstances brought on record do suggest that the deceased himself was a criminal and a bully . Even as per the prosecution case he given threats to deceased accused Pannoo to face dire consequences if stolen articles of Chhotey were not returned to him. In the circumstances appearing in the case it further looks to be more probable that as a sequel of that threat the deceased and his brother may have caught hold of Pannoo and they had scuffle with him. It further appears that in order to get himself freed, the assailant inflicted a single blow on the back of the deceased. This inference of ours is drawn on the basis of attending circumstances appearing in the case and shifting versions which have emerged in the statement of the witnesses regarding the origin of occurrence. The very fact that the assailant had inflicted only one single blow that too on the back of the deceased raises at suspicion in the prosecution story that it was a predetermined attack. Why the prosecution suppressed the genesis of the origin of the occurrence is anybody's guess? The presence of sufficient light at the scene of occurrence has been doubted already by us and in view of the fact that the witness Kausar and the deceased both had received one single blow on their back, it will be too risky to jump to the conclusion that it was the appellant who had inflicted the fatal knife blow on the back of the deceased particularly when no motive could be established against him.
29. As far as third witness Anwar is concerned he is a neighbour of Nawab. He is also a chance witness and he had not participated in the identification proceeding of Vir Pal and once we have held that first information report is a fabricated document then entire fabric of the prosecution case collapses and if it was brought into existence long after the occurrence any number of witnesses could be added.
30. For the reasons stated above, Criminal Appeal No. 921 of 1981 filed by Ram Sewak is allowed. His conviction and sentence recorded under Sections 302 and 307 read with Section 34, I.P.C. are set aside and he is acquitted of the offences charged for. The appellant is on bail. His bail bonds are cancelled and sureties discharged. Appeal No. 1254 of 1981 is disposed of as abated.