Allahabad High Court
Rajendra Mushar vs State on 24 August, 2018
Bench: Sudhir Agarwal, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on:17.07.2018 Delivered on:24.08.2018 Court No. - 34 Case :- JAIL APPEAL No. - 5104 of 2005 Appellant :- Rajendra Mushar Respondent :- State Counsel for Appellant :- Mrs. Swati Agarwal [A.C], R.P.S.Chauhan,A.C. Counsel for Respondent :- A.G.A. Hon'ble Sudhir Agarwal, J.
Hon'ble Mrs. Vijay Lakshmi, J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. The instant jail appeal has been preferred against judgment and order dated 19.7.2003 passed by learned Special Judge, Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as "NDPS")/ Additional Sessions Judge, Jaunpur in Sessions Trial No.265 of 2002 under Section 302 IPC, Police Station-Shahganj, District-Jaunpur, arising out of Case Crime No.238 of 2002 whereby appellant has been convicted under Section 302 and sentenced for life along with fine of Rs.5000/- and in default in payment of fine, he has to undergo further sentence of six months rigorous imprisonment.
2. Brief facts of the case as per FIR version is that one Lalta Mushar, real brother of Informant PW-1 Basanta Mushar r/o Takha Paschim, P. S. Shahganj, District-Jaunpur, was residing in his house situated adjacent to Informant's house along with his wife Ramdeiya Devi and daughter Smt. Shobha Devi. Smt. Shobha Devi (i.e. Informant's niece) was married to Rajendra Mushar r/o Sidhari, City-Azamgarh. Rajendra Mushrar had been living in his matrimonial home (Sasuraal) for 5 years. Adjacent to house of Lalta (Informant's brother), Satiram @ Sitaram was engaged in welding work and he was quite familiar with Lalta and his family members. In the night of 2/3.6.2002 between 11-12 PM when Informant's brother Lalta and Satiram @ Sitaram were having meal and Informant's bhabhi Ramdeiya and niece Smt. Shobha Devi were also sitting there, all of a sudden Rajendra Mushar came there with a lathi and assaulted his wife Shobha Devi, as a result whereof, she fell down. When Ramdeiya Devi came to her rescue, she was also inflicted lathi blow on her head. both of them started raising alarm for saving them. In the meantime, accused Rajendra brutally assaulted Informant's brother Lalta and Satiram @ Sitaram to death with stone sil and bricks and thereafter fled away. Incident was witnessed by Informant and several other persons. After informing about the incident to family members of Sitaram @ Satiram at village-Khanuwai, Informant went to police station along with village Chowkidar for lodging FIR, which was lodged at police on the same day i.e. 3.6.2002 at 7.30 AM.
3. After registration of F.I.R., usual investigation proceeded and statements of witnesses were recorded. Recovery memos of wine bottle, dibari, torch, ordinary soil, blood stained soil were prepared. Inquest proceedings were initiated and after formal documentation, bodies of both deceased namely Lalta and Sitaram @ Satiram were transmitted in sealed condition to concerned Chief Medical Officer for autopsy, which was conducted and ultimately investigation culminated into filing of chargesheet u/s 173 (2) Cr. P. C. in the Court of Chief Judicial Magistrate, Jaunpur on 29.6.2002.
4. Case was committed to Court of Sessions by Chief Judicial Magistrate, Jaunpur on 29.8.2002. Trial Court (Special Judge, N. D. P. S. Act/Additional Sessions Judge, Jaunpur) after hearing prosecution and defence, as well as considering materials available on record, framed following charge against accused for committing offence under Section 302 IPC vide order dated 10.10.2002 :
"I, Nehal Ahmed Siddiqui, N.D.P.S. Act/Additional Sessions Judge, Jaunpur, charge you, Rajendra Mushar as under :
That you, in the intervening night of 2/03.06.2002 between 11.00 PM to 12.00 midnight at village-Takha West, P. S. Shahganj, District-Jaunpur, murdered Lalat and Satiram by assaulting them with stone-sil and brick and therey committed an offence punishable under Section 302 IPC and with the cognizance of this Court.
I hereby direct you to be tried by this Court for the aforesaid charges."
5. Accused-appellant denied charge and claimed to be tried on merits.
6. To substantiate the charges levelled against accused-appellant, prosecution examined PW-1 Basanta Mushar (Informant), PW-2 Smt. Ramdeiya Devi; both witnesses of fact. PW-2 was also injured during the incident, PW-3 Dr. V. P. Singh had examined injured Smt. Ramdeiya Devi (PW-2) and proved injury report, Ext Ka 2. PW-4 Dr. R. K. Sinha had conducted Post Mortem Examination on corpus of both the deceased and proved post mortem reports of deceased Satiram @ Sitaram, Ext Ka 3 and deceased Lalta, Ext Ka 7. PW-5 S. I. Birendra Nath Singh is Investigating Officer (hereinafter referred to as 'I.O.'), who had undertaken investigation immediately after registration of FIR; visited the spot; prepared and proved Inquest i.e. Ext Ka 5 in respect of deceased Satiram @ Sitaram and other necessary documents from Exhibit Ka 6 to Exhibit Ka 8. He has also proved Inquest i.e. Exhibit Ka 12 in respect of deceased Lalta and other necessary documents/memos from Exhibit Ka 13 to Exhibit Ka 13 in respect of deceased Lalta. PW-5 has approved site plan i.e. Exhibit Ka 18; recovery memos in respect of blood stained and simple earth; wine bottles, from Exhibit Ka 19 to Exhibit Ka 21. PW-6 Head Constable Balgovind Krishna is a formal witness, who proved Chik FIR i.e Exhibit Ka 23 prepared on the basis of written report i.e. Exhibit Ka 1, copy of General Diary i.e. Exhibit Ka 24. He has also proved copy of General Diary (hereinafter referred to as 'G.D.') dated 04.06.2002 in handwriting of Sri B. N. Singh, Exhibit Ka 25. PW-7 Constable Ram Prakash Singh has proved Exhibit Ka 5 i.e. Inquest of Satiram @ Sitaram, specimen seal Exhibit Ka 11 and Exhibit Ka 17, by which dead bodies were sealed for sending it to post mortem examination.
7. Autopsy on the body of deceased Satiram @ Sitaram was conducted by PW 5 Dr. R. K. Sinha on 03.06.2002 at 3.30 PM. According to him, Satiram @ Sitaram was aged about 35 years and about one day had passed since his death. His body was average built and rigor mortis was found present in both limbs. He found following ante mortem injuries :-
(i) lacerated wound with blood clot on right side face, size 3cm x 2 cm on lateral to nose.
(ii) contusion with massive swelling on the left side face, size 4 cm x 4 cm.
(iii) lacerated wound with blood clot, size 4 cm x 1.5 cm x bone deep on the left eyebrow, underlying bone fractured.
(iv) lacerated wound with blood clot size 3 cm x 2 cm x bone deep on the right side chin, mandibular fractured.
(v)contusion 3 cm x 3 cm on the bridge of nose.
(vi) lacerated wound 6 cm x 3 cm x bone deep on the back of scalp (on the occipital bone), blood clot present, underlying bone fractured
8. On internal examination, scalp-fracture of left frontal, left maxilla and occipital bone; membranes-lacerated at the site of injuries; brain-lacerated at the site of injuries, blood clot present; heart-right and left, both chambers empty, buccal cavity-blood clot present; pancreas-emptied, small intestine-gases present, large intestine-gases and faecal matter present, liver-pale, gall bladder-full, Kidney-nothing abnormal detected (NAD) and pale, urinary bladder-emptied. PW-5 proved execution of post mortem examination report which has been marked as Ext. Ka 3. Cause of death has been assigned to haemorrhage and shock as a result of ante mortem injuries.
9. Autopsy on the body of deceased Lalta was also conducted by PW 5 Dr. R. K. Sinha on the same day i.e. 03.06.2002 at 4.00 PM. According to PW-5, Lalta was 50 years old and about one day had elapsed since his death. His body was average built and rigour mortis was present in both, upper and lower limbs. PW-5 found following ante mortem injuries :-
(i) contusion 4 cm x 2 cm over the nose, underbone fractured, blood clot present in nostrils.
(ii) contusion 6 cm x 3 cm on the anterior aspect of chest.
(iii) contusion 8 cm x 3 cm on the left side of chest wall.
(iv) lacerated wound, blood clot, size 3 cm x 1.5 cm x bone deep on the posterior aspect of scalp, underlying bone fractured, blood clot present.
(v)abrasion 3 cm x 2 cm on the posterior aspect of right shoulder joint.
(vi) abrasion 4 cm x 4 cm on the back of right elbow joint
10. On internal examination, scalp-fracture of occipital bone and nasal bone, blood clot present in occipital cavity; membranes-lacerated at the site of injuries; brain-lacerated at the site of injuries, blood clot present; heart-right and left, both chambers emptied, buccal cavity-blood clot present; pancreas-emptied, small intestine-gases present, large intestine-gases and faecal matter present, liver-pale, gall bladder-full, Kidney-nothing abnormal detected (NAD) and pale, urinary bladder-emptied. PW-5 proved execution of post mortem examination report which has been marked as Ext. Ka 4. Cause of death has been assigned to haemorrhage and shock as a result of ante mortem injuries.
11. PW-3 Dr. V. P. Singh had examined PW-2 Ramdeiya Devi (injured) on 03.06.2002 at 10.05 AM and found one lacerated wound 6 cm x 1 cm x bone deep, top of head, 4 cm above root of nose. In the opinion of doctor i.e. PW-3, injury was half day old caused by blunt object, simple in nature. He has proved medical examination report as Ext Ka 2.
12. Accused denied prosecution story in his statements u/s 313 Cr. P. C. recorded on 21.05.2003 and stated that he had falsely been implicated. He further took a defence plea that his father-in-law Lalta and Sitaram were criminal minded persons and criminals used to gather at their house with intention to plan crimes. Accused-appellant and his wife Shobha Devi used to protest. In the night of occurrence after taking liquor with Lalta and Sitaram, the miscreants attempted to commit rape upon his wife, which was opposed by his in-laws, with the result miscreants inflicted injuries to them with lathi and stone. According to appellant, Informant has deposed against him under the pressure of police.
13. After hearing counsel for parties and perusal of entire oral as well as documentary evidences available on record, learned Sessions court has convicted and sentenced accused-appellant for offence under Section 302 IPC as discussed above. Trial Court has based its conclusion of conviction on following findings :
(i) Informant has proved FIR version.
(ii) PW-2 Ramdeiya Devi herself is an injured witness and, therefore, her evidence is more important, since her injuries proves her presence on site of occurrence and she has witnessed the incident having herself sustained injuries and her version corroborates the FIR version as well as story stated by PW-1.
(iii) PW-3, who has examined injuries of PW-2 also fortifies the nature of injuries and the manner in which injuries were sustained by her, which corroborates the prosecution version.
(iv) PW-4, who has conducted Post Mortem examination on bodies of two deceased, had also corroborated that injuries must have suffered by small or big stone or any blunt object.
(v) FIR was also registered promptly, inasmuch as, incident is said to have been taken place between 11.00-12.00 O'Clock in the night of 02/03.03.2002 and report was registered on 03.03.2002 at 7.30 AM. Distance of police station from place of occurrence is 4 kms, hence, there is no undue delay in registration of report.
(vi) Defence plea of absence of motive has no relevance, since, the incident is proved by ocular version of PW-1 and PW-2, both and in such case, motive loses its importance.
(vii) There is no substantial contradiction in evidence of two witnesses and prosecution story set up by prosecution.
(viii) Plea of identification has no basis, since, accused was known to witnesses being family member and, therefore, even if there might be some dark, recognition of accused by witnesses was not difficult.
14. We have heard Mrs. Swati Agarwal, Advocate (Amicus Curiae) for appellant and Sri Syed Ali Murtaza, learned Additional Government Advocate for State and perused the record.
15. Learned counsel for appellant i.e. Amicus Curiae while assailing judgment and order of Court below contended that the judgment is based virtually on no evidence and Court below has failed to notice fatal contradictions in prosecution story and evidence adduced in support thereof. Prosecution miserably failed to prove guilt against accused-appellant beyond reasonable doubt and Court below has committed manifest error in convicting appellant. Appellant did not carry any lethal weapon as admitted by prosecution witnesses. Place where incident is said to have occurred had no light. Four persons namely, Lalta, aged about 50 years as per Post Mortem report and Satiram @ Sitaram, aged about 35 years as per Post Mortem report, PW-2 Smt. Ramdeiya Devi and appellant's wife Smt. Shobha Devi were present and appellant had no lethal weapon as admitted by prosecution witnesses. In these circumstances, it is difficult to accept that individually or collectively they could not have checked or stopped appellant from doing anything wrong. If appellant attacked Lalta and/or Satiram @ Sitaram as claimed by prosecution they did not resist at all is unbelievable. Four persons could have easily overpowered accused-appellant, but there is no indication or evidence that any such attempt was made by said four persons, who were present when the accused-appellant allegedly attacked his father-in-law, Lalta and Satiram @ Sitaram. She pointed out that Satiram @ Sitaram was engaged in welding work and 35 years of age, therefore, would have been physically fit and accused-appellant was not armed with any lethal weapon. He himself could have easily resisted or prevented appellant from causing any harm but no such evidence has come that either two deceased persons or two ladies offered any resistance at all. Two empty wine bottles were recovered by police from the place of incident, but no explanation has come forward in respect thereto. It is contended that there is self contradiction in statement of PW 2, inasmuch as, according to her, Satiram @ Sitaram was in the house of Sripati, which is neighbouring house to PW2's residence and therefrom he shouted when PW-2, her daughter Shobha Devi and her husband Lalta ran to see Sitaram @ Satiram. According to her, on hearing cry of Satiram @ Sitaram from the house of Sripati, when they reached there, they saw that accused-appellant was beating Sitaram @ Satiram by a bamboo. All the three shouted and by that time PW-1, Basanta also reached there and lightened his torch. Three persons namely, PW-2, her daughter Shobha and husband Lalta tried to save whereupon accused-appellant dragged Satiram @ Sitaram near door of PW-2 and there he started beating PW-2, Shobha and Lalta also with bamboo. Subsequently, appellant killed Sitaram @ Satiram and Lalta with stone-sil and ran away. However, PW-1 stated that he was sleeping in his house when he heard noise at about 11.00 to 12.00 O' Clock. It was dark night. He ran towards the place from where noise was heard. He was empty handed and when reached the house of Lalta, found accused-appellant present there. Distance between Lalta and Satiram @ Sitaram vis-a-vis accused-appellant Rajendra was about 20 paces. Ramdeiya Devi, PW-2 and Smt. Shobha were outside the house and near Lalta. There was none else except PW-2, Shobha, Lalta, Satiram @ Sitaram and PW-1 Basanta. When PW-1 reached the door of Lalta's house, there was hulla-gulla. He could not see due to darkness as to who was sitting and who was standing at the door of Lalta's house. Satiram @ Sitaram did not have any lathi and Lalta was also unarmed. Rajendra had bamboo, which was about 5 feet. He beat Ramdeiya (PW-2) and Shobha. PW-1 did not make any attempt to catch accused Rajendra, since two people were beating and there was loud noise. At the time of beating Ramdeiya (PW-2) and Shobha, accused-appellant Rajendra was about 10 paces and at that time both Shobha and Ramdeiya (PW-2) were sitting. Accused-appellant Rajendra hit twice with lathi to Shobha and Ramdeiya (PW-2). PW-1 could not see whether Shobha was hurt by lathi, but Ramdeiya (PW-2) sustained injuries on head, both blows of lathi hit on her head. When he reached, Ramdeiya (PW-2) fell unconscious and blood was oozing out. They did not attempt to catch accused-appellant Rajendra, since he was armed. They called for help but nobody came. On being challenged by PW-1 and others, accused-appellant Rajendra did not run but started beating Lalta and Sitaram @ Satiram. He hit Lalta and Sitaram @ Satiram with same bamboo. Sitaram @ Satiram was hit by bamboo 4-5 times while Lalta was hit twice. Both fell down. All this took about half an hour. Rajendra also hit with stone-sil besides bamboo. While using stone-sil Rajendra threw bamboo, but PW-1 did not try to protect his brother or his wife, since he was afraid of himself and retracted by about 10 paces. Rajendra first attacked Sitaram @ Satiram with stone-sil and thereafter Lalta. Rajendra threw away stone-sil, brick and bamboo thereat and ran away. When this entire beating was going on there was dark, but subsequently said that a dhibri was alighted. Nobody immediately went to hospital after beating episode was over. In the morning around 4.00 AM, PW-1 went to Chowkidar and thereafter both of them went to police station at 6.00 AM.
16. Learned counsel for appellant stated that aforesaid version of PW-1 is apparently contradictory to PW-2 and Court below has completely failed to consider the said contradictions which belie prosecution story against accused-appellant. PW-1 has said that at the time of incident Lalta and Sitaram @ Satiram both were taking food and it was left in midst. PW-2 however said that Lalta, she herself and Shobha had just sat for taking dinner and it was only served by PW-2, when shouting of Sitaram @ Satiram from the house of Sripati in the vicinity of PW-1's house was heard by these three persons. They ran to Sitaram @ Satiram. Shobha, wife of accused-appellant has not been examined at all. PW-2 clearly said that Sitaram @ Satiram was never seen by her of taking liquor. She argued that police has not made any attempt to find out how two empty bottles of liquor were found at the place of incident. PW-2 said, when her husband was taking dinner at that very time PW-1 reached there and both brothers did not drink. This aspect has also been ignored. It shows contradiction with statement of PW-1 that he reached the door of Lalta when he heard big noise between 11.00 to 12.00 O' Clock in the night when sleeping in his own house. According to PW-2, accused-appellant beat Shobha also who sustained injuries on her head, but neither she was medically examined nor produced in evidence. The distance between place of PW-1 and house of Lalta and PW-2 is about 100 paces then how PW-1 could hear alarm when he was sleeping at his house, also remained unexplained. It is also not believable that 4-5 persons were raising hue and cry and nobody in the vicinity came out. Disliking of accused-appellant by PW-1 was admitted by him in his oral deposition, but this important aspect has been ignored totally by Court below. PW-1 admitted that Kamta, whose residence is about 50 paces from residence of Lalta, reached the place of incident after 1 or 2 hours though PW-1 who was residing at a farther place reached immediately when alleged incident was going on. In Inquest Report, in respect of two empty bottles of wine, it is mentioned that both deceased were taking liquor as was told to police at that time but statement of PW-2 is otherwise. This was an important aspect to show that some other persons were present in the house of Lalta as stated by accused-appellant in his statement under Section 313 Cr.P.C. and this is corroborated by statement of PW-1 that two persons were beating, therefore, he did not make any attempt to protect deceased or others and this belies entire prosecution story set up against accused-appellant. Nobody has said that brick was used to attack, but police came to have recovered blood stained brick, which explained that there were somebody else who have committed crime and accused-appellant has been falsely implicated. The alleged bamboo has not been recovered by police, though as per PW-1 it was thrown by accused-appellant on the place of incident. No motive has been assigned. Sitaram @ Satiram is said to have come into contact of the family about 10-15 days back only and, therefore, taking dinner with the family by Sitaram @ Satiram as stated in FIR, is not believable. Moreso, above version in FIR has not been corroborated by PWs 1 and 2 and their version is totally different. Post Mortem report shows that stomach of both deceased was empty and there was no alcoholic substance, meaning thereby both have not taken food and even liquor. FIR version is different and even statements of PWs-1 and 2 are also different. PW-2 is said to have fallen unconscious on being hit with bamboo by accused-appellant, hence, entire subsequent story set up by her, is clearly falsified. No clarification was sought from PW-1 when he said that two people were beating and, therefore, he did not make any attempt to save anybody.
17. Per contra, learned A.G.A. contended that broadly prosecution story is consistent and there is no material contradiction and the objects of attack i.e. stone-sil and brick have been recovered by police. Injured witness PW-2 herself has supported prosecution story and, therefore, Trial Court has rightly convicted accused-appellant and this appeal has no substance and liable to be dismissed.
18. In the present case, accused-appellant is son-in-law of deceased Lalta. PW-2 is accused-appellant's mother-in-law. Accused-appellant is married to only child i.e. daughter of Lalta and Ramdeiya Devi (PW-2) i.e. Smt. Shobha Devi. Accused-appellant was residing in his in-law's house for last sometime. Accused-appellant must have been quite aged at the time of incident, inasmuch as, PW-2 has stated that son of accused-appellant, Prakash, was aged about 20 years and already married. There was no personal difference between accused-appellant and his wife Shobha. This fact is admitted by PW-2. Satiram @ Sitaram had started his business of welding just 10-15 days earlier, in the neighbourhood of house of PW-2. She and her family was not acquainted with Satiram @ Sitaram earlier. Even in these 10-15 days Satiram @ Sitaram neither frequently visited the house of PW-2 nor used to take meals thereat. Accused-appellant had no quarrel with Shobha at any point of time and he used to give due respect to Lalta and PW-2, both. He never beat Shobha. All these facts are evident from following admission of PW -2 :
^^jktsUnz dks 'kksHkk ls dksbZ f'kdk;r ugha FkhA izdk'k dh 'kknh es lfrjke lkfey ugha FkkA ml le; lfrjke esjs ?kj ds cxy ugha jgrk FkkA lfrjke ?kVuk ds 10&15 fnu igys esjs ?kj ds cxy esa vkdj dkjksckj djrk FkkA mlls igys ge yksx lfrjke dks ugha tkurs FksA bl 10&15 fnu ds nksjku lfrjke dk esjs ?kj eas vkuk&tkuk ugha FkkA lfrjke esjs ?kj esa [kkuk ihuk ugha FkkA bl 10&15 fnu ds chp esa 'kksHkk ;gh FkhA 'kknh ds ckn 'kksHkk vius llqjky vkrh tkrh FkhA vfHk;qDr jktsUnz esjs ?kj esa jgrk FkkA 'kksHkk vkSj jktsUnz esa dHkh >xM+k ugha gksrk FkkA jktsUnz esjk vkSj ykyrk dk lEeku Hkh djrk FkkA jktsUnz eq>ls] ykyrk] clUrk ls dHkh >xM+k ugha fd;kA jktsUnz nkekn us 'kksHkk dh dHkh f'kdk;r ugha fd;kA esjs lkeus esjh yM+dh dks dHkh ekjrk ihVrk ugha FkkA** "Rajendra had no complaint against Shobha. Satiram had not attended Prakash's marriage. 10-15 days prior to incident, Satiram had come to my neighbourhood and started a business. Earlier we had not been acquainted with Satiram. During these 10-15 days, Satiram was not on such terms with us as to come to my house and to have meals hereat. During these 10-15 days Shobha was staying at this very place. After her marriage she frequented her in-laws' place. Accused Rajendra stayed at my house. Shobha and Rajendra would never have any altercation. Rajendra was respectful to me as also to Kalra. Rajendra never entered into an altercation with me or with Kalra or with Basanta. The son-in-law Rajendra never complained about Shobha. He never beat my daughter." (English translation by Court)
19. Lalta, father-in-law of appellant, were three brothers and other two brothers, Basanta Mushar (PW-1) and Kamta Mushar, all three had good relations amongst themselves. Accused-appellant Rajendra also used to visit houses of Basanta (PW 1) and Kamta, which are around 100 paces from house of PW-2. On eastern side, about 100 paces, are the houses of Lalchand, Jaibhu, Pirtu and Jairam. On south of house of PW-2 is residence of Kalpnath Yadav and a rice mill. Sitaram @ Satiram's shop was on north of PW-2's house. Sitaram @ Satiram resided at Khanuwai, used to come in morning and went away in evening. Sometimes when there was heavy work, he used to stay in night, but when he stayed in night, he did not visit house of PW-2. PW-2 had never seen Sitaram @ Satiram taking liquor. On the date of incident, Rajendra (accused-appellant) was in the house of PW-2. Night was dark when incident took place. Rajendra has gone in evening and at that time Shobha, PW-2 and Lalta were at the residence. When he returned, at that time also they were at residence. There was nobody outside. It was dark because there was no electricity. PW-2 prepared bread (roti), vegetable (sabji) and rice. Inside the house her husband, Lalta was taking food; Shobha and PW-2 were sitting. At that time there was nobody else. PW-1 came when Lalta, husband of PW-2 was taking food. Both brothers did not drink in the house. When her husband was taking food, the incident took place. First of all, accused-appellant Rajendra beat Sitaram @ Satiram and then Shobha. He also attacked on the head of PW-2. At that time, Sitaram @ Satiram was at his shop wherefrom accused-appellant Rajendra dragged him. At that time Lalta was in the house. The place where accused-appellant Rajendra hit Sitaram @ Satiram, there was no liquor bottle. When the three namely, PW-2, Lalta and Shobha enquired from accused-appellant Rajendra about beating Sitaram @ Satiram, then he started beating the three also. He was beating Sitaram @ Satiram with a bamboo and thereafter by stone-sil. After beating Sitaram @ Satiram, accused-appellant beat Shobha and PW-2. Shobha sustained injury on her head. Thereafter, accused-appellant killed Lalta. They were beaten by accused-appellant Rajendra at the door of the house. At that time, it was dark. PW-1 reached the place of incident on the noise raised by PW-2 and others and not after the incident. Kamta had not come by that time. Other members of family of Basanta, came in morning. This is what is evident from statement of PW-2 in cross-examination, but in examination-in-chief PW-2 has said that at around 11.30 PM, in the night of 02.03.2002, she has just served food to her husband, daughter and herself. They heard alarm raised by Sitaram @ Satiram from the house of Sripati, in the vicinity of house of PW-2, and all three ran towards Sitaram @ Satiram and saw that accused-appellant Rajendra was beating him with bamboo. All three shouted. At that time PW-1 also reached there lighting his torch. All of them tried to save, but Rajendra dragged Sitaram @ Satiram at the door of house of PW-2 and thereat started beating PW-2, Shobha and Lalta. Subsequently, with stone-sil, Rajendra (accused-appellant) killed Sitaram @ Satiram and Lalta and ran away. Statement of PW-2 in examination-in-chief is not consistent with cross-examination. She has introduced starting of incident at a different place i.e. house of Sripati, but neither prosecution has made any investigation or interrogation of Sripati nor Sripati has been examined at all. We find that Sripati is absent in entire process of incident and investigation. It leaves serious doubt over prosecution version. When PW-2 claimed that incident started at the house of Sripati, why he had not been interrogated or no investigation was made from him is not understandable. PW-2 also stated that Shobha was also injured. She was equally participating and witness to entire incident, but statement of I. O. (PW-5) shows that he did not examine or record statement of Shobha at any point of time and only recorded statements of PWs 1 and 2.
20. PW-5 has also admitted recovery of two empty bottles of liquor at the place of incident where food was found served in plate, but not eaten by anyone. Both empty bottles of wine were found near dead bodies and shown in recovery memo. Who took liquor is a question which has neither been investigated by prosecution nor could be explained by learned A.G.A. at all. PW-2 admitted that Satiram @ Sitaram and PW-1 have not taken liquor and there is no evidence to show that liquor was taken by accused-appellant himself.
21. PW-5 has also said that residence of Kamta is adjoining to that of Lalta and if that be so, when PW-1 Basanta after hearing noise could come to place of incident from a distance of about 100 paces then why Kamta could not come when his house was adjoining to house of Lalta, is not understandable. Distance of house of Lalta and Basanta has been shown 25-30 paces by PW-5, but even then why Kamta could not immediately come, who was nearer than Basanta, is beyond any comprehension. It does not appear that any enquiry and investigation on this aspect has been made by prosecution.
22. As per FIR version, entire incident took place when Lalta and Sitaram @ Satiram were taking meals inside the house and PW-2 and Shobha were sitting. PW-5 however has admitted that he did not find any blood stained soil inside the house. From statement of PW-2 it is evident that entire incident took place first in the house of Sripati and then at the door of house and not inside it.
23. One of the most important flaw in the entire case is that PW-1 when questioned, why he did not interrupt when accused-appellant was attacking PW-2 and Shobha, he replied that since two persons were beating, therefore, he did not interfere. The statement reads as under :
^^jktsUnz us jensb;k vkSj 'kksHkk dks ekjkA eSa nkSM+k dj idM+k ugha D;ksfd og nks vkneh Fks ekj jgk FkkA bl le; ets dk 'kksj gks jgk FkkA** "Rajendra assaulted Ramdeiya and Shobha. I did not rush to catch hold of him because they were two persons while he was assaulting. At that time there was much hue and cry." (English translation by Court)
24. PW-1 also said that since his brother Lalta has kept his son-in-law with him, therefore, PW-1 used to visit him very occasionally. The statement in this regard reads as under :
^^esjs o ykyrk ds chp vkuk tkuk cgqr de FkkA ?kVuk ds pkj N% ekg igys ls esjs o ykyrk ds ;gak vkuk&tkuk de FkkA esjs HkkbZ nkekn vius ;gkW jD[ks FksA blfy, vkuk&tkuk de FkkA** "Lalta and I would have occasional visits to each other. Since 4-6 months prior to occurrence we seldom visited each other's place. My brother had his son-in-law stay at his house; hence, there were infrequent visits." (English translation by Court)
25. PW-2, mother-in-law vowed that accused-appellant behaved very soberly with In-laws and never quarreled with his wife but PW-1 stated differently. No reason in this contradictory statement of PWs-1 and 2 could be explained by prosecution either in Court below or before us. The statement of PW-1 in this regard reads as under :
^^?kVuk ls igys izk;% jktsUnz dh iRuh o lkl llqj ls >xM+k gksrk jgrk FkkA** ^^eSaus jktsUnz dks igys cgqr le>k;k ysfdu og ekurk ugha FkkA jktsUnz eq>ls ekj ihV dh otg ugha crk;k vkSj u eSaus mlls iwNkA** "Prior to occurrence, altercations would often ensue between Rajendra's wife and her in-laws."
"I earlier tried to prevail upon Rajendra to understand the things but he did not restrain himself. Rajendra did not tell the reason for the fights nor did I ask him."
(English translation by Court)
26. In this backdrop, when we consider the question whether there is any delay in FIR or not, here also we find that FIR can be said to have been registered with sufficient delay and after due deliberation for the reason that incident took place between 11.00 to 12.00 O'Clock at night, but FIR has been lodged at 7.30 AM and distance of police station from place of incident is only 5 kms. PW-1 himself has said that after incident many people collected at spot and ladies started weeping. In the morning hours he went to the house of Sitaram @ Satiram at village-Khanuwai and thereafter contacted Chowkidar of village-Takha and along with him went to police station. PW-2 also accompanied him. He did not go to hospital for immediate medical treatment. All these facts stated by PW-1 in cross-examination reads as under :
^^ekjihV ds ckn dksbZ rRdky vLirky ugha x;kA Fkkuk dh nwjh esjs ?kj ls 3 fd0eh0 gSA jkr esa eSa Fkkus ij ugha x;kA 4 cts lqcg pkSdhnkj ds ikl eSa x;kA eSa pkSdhnkj 6 cts lqcg Fkkus ij x;kA Fkkus ij esjk vkSj dksbZ HkkbZ Fkkus ij ugha x;kA bl 4 cts vkSj 12 cts ds chp eS rk[kk ds xkWo esa FkkA xkWo ds iz/kku ds ikl Hkh ugha FkkA >xM+k [kre gksus ij eSa vius ?kj pyk x;kA jkr esa eSa lks;k ugha cfYd 4 cts pkSdhnkj ds ikl x;kA pkSdhnkj us Fkkus ij lqcg pyus ds fy, dgkA esjs o pkSdhnkj ds edku ds chp 2 fd0eh0 nwjh gSA pkSdhnkj ds ;gak ls vius ?kj pyk vk;k vkSj ogh mls cqyk;kA 6 cts pkSdhnkj esjs ?kj vk;kA 4 o 6 ds chp eSa ykyrk ds ?kj ij FkkA lqcg 6 cts ?kj ls Fkkus ds fy, pykA fjD'kk ls 1&1@2 ?kUVk esa Fkkus esa igqapkA** "No one went to the hospital immediately after the fight. The police station is situated at a distance of 3 km from my house. I did not go to the police station in the night. At 4 in the morning I went to watchman.
The watchman and I went to the police station at 6:00 a.m. None of my brothers went to the police station. I was at the village Takha between 12:00 midnight and 4:00 a.m. I was not with the Pradhan of the village. After the quarrel was over, I went to my home. I did not sleep in the night; rather, I went to the watchman at 4:00 a.m. The watchman suggested that they should proceed for the police station in the morning. The distance between my house and that of watchman is 2 km. I returned home from the place of the watchman and called him to this very place. The watchman came to my house at 6:00 a.m. I was at the house of Lalta between 4:00 a.m. and 6:00 a.m. I left home for the police station at 6:00 a.m. I reached the police station on a rickshaw in 1-½ hours."
(English translation by Court)
27. PW-1 in the cross-examination has said that at the time of incident, Lalta and Sitaram @ Satiram both were taking meals though statement of PW-1 is totally different. He also admits that from the place of incident, two empty bottles of liquor were collected but who consumed liquor and in what manner or why two bottles of liquor were found near dead bodies and that too empty, is a big question mark on correctness of prosecution version. On the contrary, accused-appellant in his statement under Section 313 Cr. P. C. has stated about conduct of Sitaram @ Satiram, but it does not appear that on this aspect any investigation has been made though presence of two empty bottles of liquor on the place of incident, statement of PW-1 that two men were beating and, therefore, he kept away, is apparent. Difference in narration of events by PWs-1 and 2, non interrogation of Sripati, non-examination of Shobha, conduct of PW-1 in taking steps for lodging report after almost six hours and more from time of incident though it is nobody's case that there was any danger in night or that conveyance was not available or there was any other justified reason for not informing police immediately, are some of the facts, which create a reasonable doubt on truth of prosecution version. We find reasonable probability in the contention of learned counsel for appellant that some other, one or more persons, were present at the place of incident or the incident has taken place in some other manner and not as claimed by prosecution. In our view, prosecution has miserably failed to prove its case beyond reasonable doubt against appellant.
28. It is true that testimony of an injured ocular witnesses is of much importance and unless there are strong reasons, it ought not to be discarded, but in the present case we find strong reasons as we have discussed above and despite the fact that PW-2 claims to have sustained injuries in the incident in question in the manner she claims, but we find reason for reasonable suspicion on correctness of aforesaid version of PW-2 and it is not safe to convict accused-appellant on the basis of such version.
29. In view of above discussions, we are clearly of the view that this appeal deserves to be allowed as prosecution has miserably failed to prove guilt of accused-appellant beyond reasonable doubt and Trial Court, in our view, has failed to consider apparent contradictions, wide gaps and serious lapses in prosecution story, therefore, judgment and order of conviction and sentence is not sustainable.
30. In the result, appeal is allowed. Judgment dated 19.07.2003 passed by learned Special Judge, Narcotic Drugs and Psychotropic Substance Act/ Additional Sessions Judge, Jaunpur in Sessions Trial No.265 of 2002 convicting appellant under Section 302 IPC and sentencing him life imprisonment with fine of Rs.5000/-, is hereby set aside. Appellant is acquitted of the charges levelled against him. Appellant is in jail and shall be set at liberty if not wanted in any other case.
31. Keeping in view provisions of Section 437-A Cr.P.C., appellant is directed to forthwith furnish a personal bond of the sum of Rs. Fifty thousand and two reliable Sureties each in the like amount before Trial Court, which shall be effective for a period of six months, alongwith an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.
32. Lower court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.
33. Before parting, we find it appropriate to place on record our commendation to learned counsel who has argued this appeal as Amicus Curiae with ability and actually assisted the Court effectively. We provide that she shall be paid counsel's fee as Rs. 11,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Mrs. Swati Agarwal, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
Order Date :- 24.08.2018 Manish Himwan/AK