Allahabad High Court
Banwari Lal And Anr. vs State Of U.P. on 11 March, 2022
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 45 Case :- CRIMINAL APPEAL No. - 5769 of 2013 Appellant :- Banwari Lal And Anr. Respondent :- State of U.P. Counsel for Appellant :- Krishna Gopal Counsel for Respondent :- Govt. Advocate Hon'ble Manoj Misra,J.
Hon'ble Sameer Jain,J.
1. We have heard Sri Krishna Gopal, learned counsel for the appellants and Sri J.K.Upadhyay, learned AGA for the State and have perused the record.
2. This appeal has been filed against the judgment and order of conviction and punishment, dated 18.11.2013 and 19.11.2013, respectively, passed by Additional District and Sessions Judge (Court No.6), Bareilly, in Sessions Trial No. 885 of 2011, convicting the appellants under Section 302 read with Section 34 IPC and sentencing them to imprisonment for life with fine of Rs.10,000/- each and a default sentence of two months.
INTRODUCTORY FACTS
3. The prosecution case is based on a written report (Ext.Ka-1) submitted by PW-1 at Police Station Kyolaria, District Bareilly on 5.5.2011, at about 10.30 AM, of which, Chik Report (Ext.Ka-2) and G.D.Entry No.14 (Ext.Ka-3) was prepared by PW-4. The allegation in the report is that the deceased Ram Swaroop had no issues; his wife had also died and after the death of his wife, the deceased was staying with the informant. The deceased had 18 Bighas of land. 15 days before the incident, the nephews of the deceased had dismantled the "Med" (field demarcation boundary) of the field of the deceased, which resulted in an altercation of the deceased with his nephews. On that ground, the deceased took a decision to transfer his land in favour of sons of the informant and, to arrange for the funds, to effect a transfer, had applied to the Bank. In the night of 4/5.5.2011 while the deceased Ram Swaroop to protect his watermelon crop (watermelon), was sleeping in his field, at about 4.00 AM in the morning of 5.5.2011, the deceased's nephews, namely, Banwari Lal (the appellant no.1) and Ram Naresh (appellant no.2), were noticed assaulting the deceased by PW-2 and PW-3 and when they were challenged, they threw the body of the deceased in a pit and ran away. It is alleged that body of the deceased was taken out from the pit, which had water, and injuries on neck, left ear and left knee of the deceased were noticed. By alleging that the appellants (i.e.,nephews of the deceased) have killed the deceased, the first information report was lodged.
4. The inquest was completed at the spot by 12.30 hours on 5.5.2011, of which, inquest report (Ext.Ka-4) was prepared by Ashutosh Kumar (PW-5). Autopsy was conducted on 5.5.2011 by PW-6 at about 4.45 PM. The autopsy report (Ext.Ka-12) notices:- A thin built body smeared over by mud with rigor mortis fully developed all over body; eyes half open; fist clenched, nails blue, face deeply congested; beard and moustaches smeared with blood that had trickled from nose to left ear back; and blood in nose and ear present. The external ante mortem injuries noticed were as follows:
(i) Multiple (3) abrasion with contusion on right side front of neck in an area 6 cm x 4cm with subcutaneous ecchymosis extreme over larynx in an area, 1.5 cm x 0.8cm; individual size of wound vary from 0.8 cm x0.2 cm.
(ii)Multiple (2)abrasion with contusion on left side front and side of neck in an area of 8 cm x 6 cm with subcutaneous ecchymosis over larynx plus trachea individual size of wound varying from 0.8 cm x 0.2 cm to 1.8cm x 1cm subject over wind pipe and voice box.
(iii) Multiple (3) abrasion back of left elbow joint 4.5cm x.02cm.
(iv)Multiple abrasion on left knee back of joint 0.5 cmx 1.5 cmx1.2cm.
(v)Abraded contusion on left knee joint 5cmx3cm.
(vi)Abraded contusion left leg, 4cm below knee of size 6cmx4cm.
The internal examination revealed larynx fractured; Hyoid bone fractured; extensive ecchymosis and bleeding in different layer of neck muscles; both lungs congested. The stomach contained 100gm of pasty food. Small intestine had semi digested food with gases; and large intestine had faecal matter and gases.
Cause of death, as per the report, was on account of asphyxia as a result of ante mortem throat strangulation.
Note:Autopsy report has not disclosed the estimated time of death.
5. After investigation PW-5 submitted charge sheet (Ext.Ka-11) on which, after taking cognizance, the case was committed to the court of session where, on 29.11.2011, both the appellants were charged with offence punishable under Section 302 IPC read with Section 34 IPC. The appellants pleaded not guilty and claimed for trial.
PROSECUTION EVIDENCE
6. During the course of trial, the prosecution examined as many as six witnesses. Their testimony is as follows:
7. PW-1-Indrapal-informant. He stated that the deceased were three brothers. The elder brother of the deceased, namely, Khushali Ram had three sons-Banwari (the appellant no.1), Ram Naresh (the appellant no.2) and Ram Das whereas the other brother Puran Lal had died leaving no issue. The property was thus partitioned between the deceased and his other brother Khushali Ram. The relationship between the deceased, his brother and his nephews was not cordial. After the death of his wife, the deceased, who had no issues, used to stay and eat with PW-1 for the last 25-30 years. The elder brother of the deceased, namely, Khushali Ram had died several years ago and the deceased's agricultural field was on "Batayee",i.e., sharing basis with his nephews Banwari (the appellant no.1), Ram Naresh (the appellant no.2) and Ram Das. The profits arising from the land used to to be shared by the deceased with the sons of the informant. About 15 days prior to the incident, the accused-appellants had dismantled the "Med" of deceased's field, as a consequence whereof, the deceased took a decision to transfer his land (field) in favour of the informant's sons. This decision of the deceased came to the knowledge of the accused. But as there no money to effect the transfer of the land, the deceased applied to the bank for loan. In the night of the incident, like usual, the deceased was sleeping in his hut located in his field, which also helped him to keep a night vigil to protect his watermelon crop, at about 4.00 AM, on 05.05.2011, when PW-1's son Godhan Lal (PW-2) and PW's brother Nathoo Lal (PW-3) were out to pluck watermelons, they saw the deceased being assaulted by the accused-appellants. When PW-2 and PW-3 challenged the accused-appellants, they threw the deceased in a pit and escaped. PW-1 stated that PW-2 and PW-3 witnessed the incident in the light of their torches. He added that a large number of persons arrived at the spot and they saw the accused running away and that he (PW-1) also arrived there on alarm in the village. PW-1 also stated that they all took out the body of the deceased from the pit and noticed that the deceased had injuries on the neck and ear region as well as on knee. PW-1 stated that thereafter he went to the Police Station where, at Kyolaria Bazar, he got the report written by Rakesh Kumar and, after affixing his thumb impression, lodged the same. He proved the written report, which was exhibited as Ext Ka-1. He also stated that the site plan was prepared at his instance.
In his cross-examination, PW-1 admitted that he has his own 30 Bighas of land whereas the land of the deceased was on 'Batai ' (sharing basis) with the accused-appellants. The deceased and the accused had a common field which was shared half-half. Profits out of 'Batai' used to be collected by the deceased. The deceased used to stay with PW-1 and use to keep the profit with PW-1. In the night of the incident PW-1 was sleeping in his house whereas the deceased was sleeping in his field. That night the deceased was served dinner by PW-1 by getting it to the field; that the spot is about 1 KM away from PW-1's house; that before PW-2 and PW-3 had gone to the field that night, they had woken up PW-1 and had informed PW-1 that they were going to the field. PW-1 stated that he went to the spot when he got information of the incident. PW-1 could not disclose as to who gave him the information. He clarified by stating that when there was information about the incident in the village, then he came to know about the incident and when he arrived at the spot already several persons were there. He stated that when he arrived at the spot the body was lying at the spot where the incident had occurred.
In his cross-examination on 27.3.2012 he stated that when he arrived at the spot, the body of the deceased was found just 2 to 4 paces away from his usual spot of sleeping. PW-1 stated that the police arrived at the spot only after PW-1 had gone to the Police Station. PW-1 stated that they had left for the Police Station between 7-8 AM. PW-1 stated that his son Godhan Lal (PW-2); and PW-1's wife Chameli Devi (not examined) had accompanied him to the Police Station. They reached there, on a motorcycle by 10.00 AM. PW-1 stated that they all were on a single motor cycle. He denied the suggestion that the report was lodged at the suggestion of the Investigating Officer. PW-1 stated that while getting the FIR written, he had informed its writer that his sons had seen the accused in the light of torches but if that was not written in the FIR, he cannot tell the reason. PW-1 stated that he was interrogated after the autopsy was over. PW-1 stated that the place of occurrence was shown by him to the Investigating Officer; the body was found south of the place where the deceased had slept; that if the Investigating Officer in the site plan had shown that the body was found 32 paces away from the place where the deceased had slept, then it is incorrect. He denied the suggestion that PW-1's son Babu Ram is an accused in a case relating to attempt on the life of a villager's (Om Karan's) son. PW-1 also denied the suggestion that the deceased Ram Swaroop had illicit relations with his wife and, therefore, when PW-1's sons came to know about it, they killed the deceased. PW-1 also denied the suggestion that to save his sons, he lodged first information report against the accused-appellants. PW-1 admitted the suggestion that except him and his sons there is no other witness of the incident available in the village.
8. PW-2-Godhan Lal-son of the informant. PW-2 stated that the deceased used to stay with PW-1 for the last 30 years; and that they all used to look after the deceased and serve him food, etc. The accused-appellants are nephews of the deceased. In respect of motive for the crime, PW-2 narrated the same story as narrated by PW-1. In respect of the incident, PW-2 stated that in the intervening night of 4/5.5.2011 the deceased as usual was sleeping in his field to protect his (watermelon) crop whereas, PW-2, his brothers and mother/father were at home. At about 4.00 AM, in the morning of 5.5.2011, when PW-2 and his uncle Nathoo Lal (PW-3) went to the field to collect watermelon, they saw the accused-appellants assaulting the deceased after pinning him down. They saw all of that in the light of their torches and when they challenged the accused, the accused threw the deceased in an adjoining pit, which had water, and ran away. PW-2 stated that he and his uncle (PW-3) witnessed the entire incident in the light of torches and on their alarm number of villagers including his father arrived at the spot. He stated that his father (PW-1), his mother, his uncle (PW-3) and others accompanied the informant to Kyolaria where a written report was scribed by Rakesh Kumar and was lodged by PW-1. He stated that on the date of lodging the first information report, the Investigating Officer had not asked him any question and his statement was recorded in the village after 15-16 days.
In his cross-examination PW-2 admitted that the deceased used to stay with his father and mother since before his birth and that deceased's agricultural operations were looked after by the accused. He stated that in the night of the incident he and his brothers Munna Lal and Babu Ram including his father and mother were in their house whereas the deceased was sleeping in his field which had watermelon crop. He stated that in that field there is a hut; that field was not on "Batayee" (sharing basis) and that crop was looked after by the deceased himself. PW-2 stated that, that field was about half a Kilometre from his house; that, as usual, in the evening of the night of the incident, PW-2's, father (PW-1) had gone to serve dinner to the deceased though, he could not tell the time when he went to serve the dinner and returned. He stated that in the night of the incident, the deceased was sleeping alone in the field; that there were other watermelon fields including that of the accused adjoining the field of the deceased though, some of the fields were vacant. With reference to the incident, PW-2 stated that in the night of the incident, he woke up at 3.30 AM; thereafter, he woke up his father (PW-1), his uncle Nathoo Lal (PW-3) and went to the field with PW-3. They had their torches but had no "Lathi/danda". They arrived there, on foot, at 4.00 AM, where, from a distance of 50-60 paces, they spotted the accused in the light of torches and when they raised an alarm the accused dragged the deceased and threw him in a pit, which was about 10-15 paces away south of the spot where the deceased had slept and was about 45 paces away from the wooden bridge of 'Doha River' from where the incident was witnessed. PW-2 stated that the accused were assaulting the deceased with kicks and fists and one was pressing the neck of the deceased. PW-2, however, could not tell as to how many fists/kicks were inflicted upon the deceased and by whom. PW-2 stated that though he shouted but he did not make any attempt to save the deceased. PW-2 stated that in the pit there was two feet deep water. PW-2 stated that he did not go to inform his family but they arrived there, within 10-15 minutes, and when PW-1 arrived at the spot, the body of the deceased was lying in that pit. Nobody came to the spot from the family of the deceased though a cousin of the deceased had arrived. PW-2 stated that the accused were in their house but then, immediately, clarified that they had escaped. PW-2 stated that the body of the deceased was taken out from the pit by about 7.00 AM and, thereafter, they left for the Police Station by about 8.00 AM. PW-2 added that after the body was taken out from the pit, it was kept towards the north of the pit. PW-2 stated that when the body was scanned, blood was oozing out from the nose and ear and there were nail marks on the neck apart from an injury on the leg. He denied the suggestion that the report was lodged after deliberation. PW-2 stated that he had informed his father about the presence of torches, but if that was not written he cannot tell the reason. PW-2 stated that the first information report was lodged by about 10.30 hours whereas the police arrived at the spot between 11-11.30 hours. PW-2 stated that he had not shown the torches to the Investigating Officer; and that the site plan was not prepared at his instance but at the instance of his father PW-1. PW-2 stated that the Investigating Officer had interrogated him after 15-16 days; at that time, the Investigating Officer was informed about the torches but the torches were not handed over to the Investigating Officer as it was not demanded by him. PW-2 admitted that a case of murder was instituted against his brother Babu Ram but claimed that it has come to an end. In respect of the application for loan by the deceased to effect transfer of the land, PW-2 stated that he had not shown the papers of that loan application to the Investigating Officer because there was no such loan file. He also stated that he is not aware when the accused came to know about the application for loan. He also could not tell as to when the deceased developed a desire to transfer the land. He also could not tell as to how many days before, the 'Med' of the field of the deceased was dismantled. He stated that he had not visited the spot to see whether the 'Med' was broken. PW-2 denied the suggestion that the deceased had developed illicit relations with his mother, while staying at his house. PW-2 also denied the suggestion that because of illicit relations of the deceased with his mother, the deceased used to stay in the house of PW-2. He denied the suggestion that because of discovery of illicit relation of the deceased with PW-2's mother, PW-2 and his brother got infuriated and killed the deceased. He denied the suggestion that there was no dispute between the deceased and the accused in respect of the 'Med' of deceased's field. He denied the suggestions that the incident did not occur in the manner alleged; that he was not present at the spot; and that he had made false allegations, therefore, no independent witness of the village has come to support the prosecution case.
9. PW-3-Nathoo Lal. PW-3 supported the prosecution case in the manner narrated by PW-2 in his statement-in chief but in his cross-examination he stated that in the night of the incident, PW-3 and Godhan Lal (PW-2) were both sleeping in their own fields; that on that day he had visited his own field and not the field of the deceased and that he did not witness any incident. PW-3 also stated that his nephew Madan Lal (should be read as Godhan Lal) also did not witness any incident. He added that earlier, he made his statement on the suggestion of his brother Indra Pal (PW-1). PW-3 stated that when the sun had come out, following the night of the incident, when news about the incident had spread in the village, then he had visited the spot. PW-3 stated that the Investigating Officer had not interrogated him. When PW-3 was confronted with his statement under Section 161 Cr.P.C., he stated that he does not know as to how the statement was recorded because such statement was never given by him. He denied the suggestion that he was not disclosing the truth under pressure from the accused.
10. PW-4-Head Constable Pradeep Kumar. He proved the GD entry of the written report and the preparation of chik FIR. GD entry was exhibited as Ext.Ka-3 and the chik FIR was exhibited as Ext.Ka-2.
In his cross-examination, he stated that the scribe of FIR was not there at the time of lodging of the report; that the chik FIR was prepared at about 10.30 AM and it must have taken 10-15 minutes to prepare it but the time of the GD entry is the same as in the chik FIR. He stated that the IO had recorded his statement that very day but he does not remember the time of its recording. He stated that the IO had recorded his statement after the IO had returned from the spot. He also stated that he had given information to the higher officers on his wireless set, though, he does not remember its number. On being confronted with the error in his statement recorded by the IO with respect to report number 16 in place of 14, PW-4 stated that he had disclosed No.14 to the IO but if that was entered as 16 then he cannot tell the reason.
11. PW-5-Station House Officer-Ashutosh Kumar-Investigating Officer. He stated that he took over the investigation of the case on 5.5.2021 and after taking the copy of the chik, copy of the report, he recorded the statement of the persons, who made the GD entry of the FIR and thereafter he visited the spot and under his direction and supervision the inquest report was prepared, which was exhibited as Ext.Ka-4. He stated that he sealed the body and sent the same for post mortem. He proved the papers in connection therewith. He stated that he prepared the site plan on the instructions of the informant, which was exhibited as Ext.Ka-10. He arrested the accused-appellants on 10.05.2011; and that on 21.5.2011 he recorded the statement of the eye witnesses, PW-2 and PW-3 and, after completing the investigation, submitted the charge sheet (Ext.Ka-11).
In the cross-examination he stated that at the time when the first information report was registered, he was at the Police Station and after taking over the investigation, first, he recorded the statement of the informant and the person, who prepared the chik FIR. PW-5 stated that in that process it took him 40-45 minutes and he left the Police Station to visit the spot by about 11.00 AM. He stated that he reached the spot at quarter to twelve. He stated that when he reached the spot, several persons of the village had gathered. When he arrived there, the body of the deceased was lying in the pit and that he himself got the body out of the pit. PW-5 stated that at that time there was no water in the pit. PW-5 stated that the body was found about 32 paces away from the spot where the deceased was stated to have slept. He stated that at the spot he could not notice any blood even though he inspected the spot at the instance of the informant. PW-5 denied the suggestion that the inquest report was not prepared at the spot; that the informant had not informed him the place as to where the deceased had slept; and that he recorded the statement of the informant at his house after the autopsy of the body was done. PW-5 also denied the suggestion that the site plan was not prepared by him on the instructions of the informant. PW-5 stated that the delay in recording the statement of PW-2 was due to PW-5's busy schedule. He stated that the torch with which the witnesses saw the incident was not taken into custody. He stated that the informant party did not provide any document in respect of an application for loan. PW-5 admitted that the informant had not stated in the first information report with regard to witnessing the incident in the light of torches but that had come in the statement recorded on 21.5.2011. PW-5 stated that he could not get information of registration of any case between the accused and the deceased but on his visit to the village he did come to know that there was some dispute between the accused and the deceased in respect of 'Med' of the field. PW-5 also stated that, according to his information, the deceased had given his land to the accused on 'Batayee'. He admitted that in the site plan prepared by him he had not shown the distance between Point-A and the wooden bridge and between Points-A and C. He denied the suggestion that he did not properly investigate the matter and submitted the charge sheet by completing paper work at his table. He also denied the suggestion that the incident occurred in the darkness of night, committed by unknown persons and that the accused did not commit the offence.
12. PW-6-Dr. Sudhakar Kumar Yadav. He proved the autopsy and stated that the body was smeared with mud and had rigor mortis all over it. He stated that it is possible that the deceased could have died in the intervening night of 4/5.5.2011 at about 4.00 AM. He did not rule out the possibility that other injuries noticed on the body of the deceased could be a result of struggle at the time of strangulation.
In the cross-examination he stated that at the time of autopsy, he did not notice water inside the body and there were no signs to suggest a case of death due to drowning. He admitted that he had not mentioned in the autopsy report the estimated time of death but, in respect of time of death, whatever he had stated above, there could be a variation of about three hours either way. He stated that the marks of strangulation noticed on the body were caused by use of hand and not a rope or some hard substance. He denied the suggestion that the autopsy report was prepared at the instruction of the informant. He also denied the suggestion that he was telling a lie.
13. Incriminating circumstances appearing in the prosecution evidence were put to the appellants. The appellants denied their guilt and claimed that when information with regard to the death of the deceased was received, they were there along with the villagers. In respect of the reasons for their implication, they stated that the informant is in possession of the house of the deceased and, therefore, to grab the house of the deceased, the accused were falsely implicated.
THE TRIAL COURT FINDINGS.
14. The trial court by relying upon the ocular account rendered by PW-2 and upon finding that the defence could not establish a cogent reason for false implication, whereas the medical evidence disclosed that death was a consequence of strangulation, convicted and sentenced the appellants as above.
SUBMISSIONS ON BEHALF OF THE APPELLANTS.
15. Aggrieved by the order of the trial court, the learned counsel for the appellants submitted as follows:-
(i) The stomach content of the deceased would suggest that he had his last meal not more than four hours before his death. By a conservative estimate in a Village, where people wake up early morning, dinner must have been had latest by 7 or 8 PM, therefore, death must have occurred on or about mid night and not later, which was not witnessed by any one and, therefore, the prosecution story that the deceased was killed in the wee hours of the morning, say at 4.00 AM, appears doubtful; (ii)The presence of PW-2 at the spot, at the time of the incident appears doubtful for two reasons: (a) according to PW-1, the deceased had given his field on 'Batayee' to the accused and that adjoining the field of the deceased, there were vacant fields and no field of PW-2, therefore, if PW-2 had to go to his own field to collect watermelon why would he be there near the field of the deceased;in the alternative, if it is assumed that the field, where the deceased died, was not given on 'Batayee', then, if the deceased was doing farming on his own, why PW-2 would come there for help. More so, when from the statement of PW-3, it appears that PW-2 and PW-3 had their own fields and they had gone to collect watermelons from their own field and had not visited the field of the deceased; and (b) that visiting the field of the deceased at 4.00 AM appears a bit improbable, if not impossible. (iii) Further, the statement of PW-2 that he witnessed the incident from a distance of around 50 paces in torch light is not supported by recovery of the torch during the course of investigation and the existence of torch light is not there in the FIR and its existence is disclosed for the first time in statement of PW-2 recorded under Section 161 Cr.P.C. after 16 days, therefore, the existence of torch light is nothing but an after thought. (iv) Other than that, the ocular account rendered by PW-2 would suggest that he witnessed the accused assaulting the deceased and when the accused were challenged they dumped the deceased in a pit, after dragging him. If that was the case, had PW-2 been present, he could have rushed to the rescue of the deceased more so, when is not the case of the prosecution that the accused were armed and, if the deceased was dumped in a pit, which had water, while he was about to die there would have been signs of drowning. This, therefore, creates a doubt with regard to PW-2's presence at the spot. (v) That the motive for the crime has not been proved because the prosecution set out twin motive for the crime. The first was that the deceased's 'Med' was dismantled by the accused and the second was that the deceased was trying to dispose off his land in favour of the informant party. In respect of dismantling the 'Med' of the field of the deceased there is no good reason as, according to the prosecution case, the deceased's fields were on 'Batayee' with the accused. Moreover, there was no report in respect of any incident between the deceased and the accused. In so far as the second motive is concerned, no document was placed with respect to seeking of loan or in respect of proving an agreement to transfer the land and when PW-2 was questioned on that, PW-2 faltered by not being able to disclose details in respect thereof.
16. In a nutshell, on behalf of the appellants, it was submitted that this is a case where the incident occurred in the darkness of night, some unknown persons committed the murder, there was no eye witness of the incident and on strong suspicion or guess-work or ill-will the appellants were implicated, therefore, in absence of evidence of a sterling quality, there should be no conviction on the basis of solitary witness testimony, hence, the benefit of doubt should be extended to the accused party. The trial court, however, did not properly appreciate the evidence while recording conviction.
SUBMISSIONS ON BEHALF OF THE STATE
17. Per contra, learned AGA submitted that this is a case where there is an ocular account of the incident, the body of the deceased was smeared with blood which suggests that the body was in a pit that had water; that the ocular account gives a depiction of the accused pressing the neck and of throwing the deceased in a pit, which finds corroboration in the medical evidence which discloses strangulation as well as drag marks. Thus, it is a case where the ocular account finds support in the medical evidence and, therefore, prosecution has succeeded in proving the guilt of the accused. It has been alleged that even assuming that the motive might not have been proved with cogent evidence but where there is an ocular account that finds support in the medical evidence, absence of motive by itself is not fatal to the prosecution case. It is, thus, prayed by the learned AGA that the appeal be dismissed and the conviction and sentence be maintained.
ANALYSIS
18. Having noticed the entire prosecution evidence and the submissions of the learned counsel for the parties, we now proceed to analyse the evidence.
19. It is the prosecution case that the incident occurred at 4:00 AM in the morning. The FIR was lodged at 10:30 AM. The distance between the spot and the police station is 13 km. Therefore, the first question that arises for our consideration is whether, in the facts of the case, the FIR was prompt or not, if not, then whether it is a case where none witnessed a night incident and the delay was to contrive a story on suspicion and guess-work. From the testimony of the prosecution witnesses, it appears, the informant, his wife, and his son have all travelled on a motorcycle to the Police Station to lodge the first information report. It has come in the evidence that the entire village had gathered at the spot and the body, according to PW-2, was taken out from the pit by 7.00 AM and they left for the Police Station at about 8.00 AM. Interestingly, in the statement of the Investigating Officer (PW-5) it has come that when he arrived at the spot, the body of the deceased was lying in a pit and that he himself took out the body from the pit and that pit had no water. Once this is the position, there appears no logical reason to delay lodging of the first information report, particularly, when the informant party had the means to travel to the Police Station. This creates suspicion in our mind whether the incident was witnessed in the manner alleged by the prosecution or when the body was discovered in the morning, the informant party was left guessing, or contriving a story, which caused the delay in reporting the incident; this delay in lodging the report though may not be fatal to the prosecution case, but it creates a doubt that puts us on guard to test the prosecution story on all material aspects more so, when one of the two prosecution witnesses of fact during cross-examination did not support the prosecution story.
20. There are three material aspects on which we propose to test the prosecution story. These are: (i) the possibility of the presence of PW-2 at the point from where he witnessed the incident and the likelihood of him recognizing the assailants from that distance in the night; (ii) the trustworthiness of the ocular account; and (iii) motive for the crime. A close scrutiny of the site plan prepared at the instance of the informant (PW-1) would reveal that the place where the deceased was assaulted by the accused is indicated by Point-A and Point-B is the pit from where the body of the deceased was recovered. The distance between Point-A and Point-B is 32 paces, according to the I.O. but it is much less according to the eye witness. But there is no discrepancy in respect of the spot from where they allegedly watched. As per the site plan, the witnesses allegedly witnessed the incident from near the wooden bridge that crosses the river Doha which, according to the statement of PW-2, is 50-60 paces away from Point-A. The possibility of someone noticing the entire incident in the light of torch from a distance of 50-60 paces appears a bit doubtful. More over, here, the torch has not been produced or seized during investigation to examine the strength of its light range and, otherwise also, the spotting of accused in torch light is not alleged in the FIR whereas the statement of PW-2, under Section 161 Cr.P.C. was recorded 16 days later on 21.5.2011. Assuming that PW-2 witnessed the accused from that distance in the company of PW-3 and they challenged the accused from that distance why would the accused, if they had already killed the deceased, drag the deceased about 32 paces, as per I.O., or 10-15 paces, as per PW-2, to throw his body in the pit, when the first reaction would be to escape from the spot. Importantly, the testimony of PW-6 (Autopsy Surgeon) is to the effect that no water was noticed in the lungs of the deceased and, therefore, the deceased could not have drowned, but, interestingly, according to PW-2, there was water upto the depth of two feet in that pit, which means that if the deceased had been alive at the time when he was thrown in the pit, there would have been signs of drowning reflected by the presence of water in his lungs, which is not the case here. Thus, it appears to be a case where the deceased was killed at some other place, may be at the place where he slept or may be at any other place and the body was dumped in the pit.
21. At this stage, we may notice another important feature in the prosecution evidence which is that at the time of autopsy it was noticed that blood had trickled from the nostrils and had smeared beard and moustaches of the deceased; presence of blood was also noticed in nostrils and ear, yet, no blood was noticed by the Investigating Officer at the spot. Notably, in the testimony of the Investigating Officer there is no mention that during spot inspection drag marks were noticed starting from Point-A, where the deceased is said to have been assaulted, upto Point-B where his body, after dragging, was dumped. Thus, the ocular account rendered by PW-2 that the deceased was assaulted at Point-A and was dragged to, and dumped at, Point-B is not supported by material collected during the course of investigation; and the doctor has also not ruled out presence of other injuries as a result of struggle during strangulation. In addition to above, PW-2 is just a chance witness. Admittedly, he had slept in his own house and was not sleeping in the field with the deceased or in the adjoining field. He arrived at the spot not on hearing shrieks or cries but on a daily routine to pluck watermelons. PW-2's own filed is not there, as per PW-3, and the deceased's field was on 'Batayee' with the accused but, to justify his presence, PW-2 stated that the field where deceased was sleeping was not on 'Batayee'. This is inexplicable, particularly, when it has not been demonstrated that there were separate fields with different numbers. Thus, it appears, this aspect of the story has been weaved to justify PW-2's presence at that odd hour.
22. When we test the motive set out by the prosecution for commission of the crime, we find that the prosecution set up twin-motive. One that could not be proved,i.e., proposed transfer of land; and the other, i.e., in respect of dismantling of the 'Med' of the field of the deceased by the accused, there appears no logical reason, particularly, when it is the own case of the prosecution that the deceased had given his field on 'Batayee' to the accused. Further, there is no report in respect of any incident occurring in between the deceased and the accused in respect of dismantling of the 'Med'. Thus, there appears no cogent motive for commission of the crime whereas the accused did suggest a motive for false implication, which is to save their own skin. Notably, a suggestion was given that the deceased had developed relations with the wife of the informant and, therefore, informant's own sons had motive to finish off the deceased. In this context, it be noted that according to prosecution evidence, the deceased used to reside with the informant for last several decades. He also used to be fed by the informant party. In the night of the incident also, dinner was provided by the informant side to the deceased in the evening. Interestingly, when questioned about the time of serving dinner, PW-2 did not give a specific reply. Notably, in the autopsy report the estimated time of death is not disclosed. Though, PW-6 (autopsy doctor) does not rule out death having occurred at 4.00 AM but, importantly, rigor mortis had developed all over body. Normally, rigor mortis is fully developed by 12 hours and can remain as such for few hours more and passes away between 24 to 36 hours, depending on various factors. Thus, if rigor mortis all over the body was noticed at 4.45 PM on 05.05.2011, the possibility of death having occurred about midnight cannot be ruled out, which is also in sync with PW-6's statement that there can be a variation of three hours in his estimate of 4.00 AM. But, when we notice the stomach content ,i.e., 100 gm of pasty food material at the time of autopsy, keeping in mind that in villages people have early dinner, it throws a possibility of the incident having occurred much earlier than what has been suggested by the prosecution.
23. Having analysed the evidence above, we find that the prosecution set out twin motive for the crime but failed to proved either of them. Two eye-witnesses were set up. Both were chance witnesses, one, out of the two, did not support the prosecution case during cross-examination and denied the presence of the other at the spot and claimed it to be elsewhere. The other eyewitness, apart from being chance witness, discloses that he witnessed the incident in the light of a torch from a distance of about 45-50 paces. The presence of torch is not disclosed in the FIR and during investigation no torch was shown to the I.O. and there is no custody memo of that torch. Further, that eye witness statement is recorded during investigation after 16 days. The ocular account rendered by PW-2, if accepted, would indicate that the deceased was being assaulted when PW-2 arrived at the spot to give a challenge to the accused from a distance of about 50 paces, where after, the accused dragged the deceased and dumped him in a pit, which had water. But no water was found in the lungs of the deceased which is indicative of a dead person having been dumped there. This suggests that the deceased was either killed at the spot where he was noticed being assaulted or elsewhere. Notably, at the time of autopsy the beard and moustaches of the deceased were noticed smeared in blood that had trickled from the nostrils and had also collected in the ear but no blood was noticed by the I.O. at the spot. The explanation offered to explain the delay in lodging the FIR, that is, first the body was taken out of the pit, is belied by the testimony of the I.O. who says that it was he, who got it out of the pit. Further, when we notice pasty food in the stomach, as per the autopsy report, in absence of any evidence as to when the deceased was served food, by rural standards and habits, consumption of food might have been early, say by 8:00 PM, the possibility of death taking place on or about midnight, much earlier to the specified time, also cannot be ruled out. The upshot of the entire discussion is that it appears to be a case of a blind murder in the darkness of night and the prosecution story has been weaved on suspicion, or is contrived, may be with ill-motives, by keeping an eye on the property of the deceased; and the prosecution evidence does not inspire our confidence to enable us to hold that the prosecution has been able to prove the charges beyond reasonable doubt. Thus, the benefit of doubt would have to be extended to the accused-appellants. Consequently, the appeal is allowed. The judgement and order of the trial court is set aside. The accused-appellants are acquitted of the charge (s) for which they have been tried. The appellants are reported to be in jail. They shall be set at liberty forthwith unless wanted in any other case, subject to compliance of Section 437-A Cr.P.C. to the satisfaction of the trial court below.
24. Let a certified copy of this order along with record of lower court be sent to the trial court for compliance. The office is further directed to enter the judgement in compliance register maintained for the purpose of the Court.
Order Date :- 11.3.2022
SKM
(Sameer Jain,J.) (Manoj Misra,J.)