Allahabad High Court
State Of U.P. vs Dal Chandra Son Of Parshadi Lal And Ors. on 19 July, 2005
Author: M.C. Jain
Bench: M.C. Jain, M. Chaudhary
JUDGMENT M.C. Jain, J.
1. The State has preferred this appeal against the judgment and order dated 31.10.1980 passed by Sri B.I.S. Sodhi, I Additional Sessions Judge, Bareilly in Sessions Trial No. 78 of 1980 acquitting the accused respondents, namely, Dal Chand, Kalyan, Asharfi Lal, Brijpal, Lakhpat and Dhakan of the charges under Sections 147, 148, 302 read with Section 149 I.P.C., 323 I.P.C. read with Section 149 I.P.C. and 201 I.P.C.
2. Three accused respondents, namely, Dal Chand, Kalyan and Dhakan have died during the pendency of the appeal and the same has abated in respect of them under order dated 21.2.2005. Presently, the Court is concerned with the remaining three accused respondents.
3. The facts necessary to be stated for the decision of the appeal may be set forth. The incident took place on 1.10.1979 at about 9.30 A.M. in Village Biharipur, P.S. Bithri, District Bareilly and the report was lodged at 12.05 P.M. by oral narration by the injured PW 1 Sohan Lal, a friend of the deceased Ram Charan. PW 3 Gajraj Singh resident of village Harharpur, P.S. Faridpur was the Pradhan of the complainant's village Dalpatpur. The deceased Ram Charan S/o Mohan Lal (friend of the complainant) was Up-Pradhan of village Dalpatpur. Lalta Prasad, uncle of Ram Charan had given evidence against the accused Dhakan in an arson case resulting in conviction of Dhakan who was on bail at the time of the incident. About two years before the incident, the complainant's step brother accused Dalchand had taken unlawful possession of Gaon Sabha land and had built house thereon. In that regard, Gajraj Singh, Pradhan had filed a case in court against Dal Chand, pairvy of which was being done by the complainant and Ram Charan (Up Pradhan) along with Garjraj Singh (Pradhan). For these reasons, Dal .Chand and Dhakan bore enmity against Ram Charan, Lalta and the complainant. The other accused belonged to the group of Dal Chand and Dhakan. The incident occurred on Dushera festival day. According to village custom, one rupee as Shagun was being given by every person to Chaudhary Chet Singh, Zamindar of village Mehtarpur. The complainant along with Ram Charan deceased was going to village Mehtarpur for that purpose. When they reached in village Bihanpur, they took Biri from the shop of Durga Giri and sat on the cot lying in front of his shop, smoking Biri. Just then, six accused persons, Lakhpat, Dal Chand, Kalyan, Dhakan, Brijpal and Asharfi came over there from western aside Lakhpat was armed with Kanta and the rest had lathis. Reaching there, they at once started assaulting Ram Charan with Kanta and lathis. The complainant tried to save Ram Charan. But the accused assaulted him too. The complainant and Durga Giri raised alarm, attracting the witnesses Data Ram, Lalta Prasad and Gajraj Singh, Pradhan. Receiving the injuries, Ram Charan fell down on the ground from the cot and died instantaneously. In order to save his life, the complainant ran, but Brij Pal accused chased him and gave him 2-3 more lathi blows. The accused Kalyan and Asharfi caught hold of the dead body of Ram Charan and began to drag it towards the river, mouthing filthy words. The complainant and other witnesses raised alarm and followed the accused persons. Sohan Lal, Pradhan of Bihanpur, Munney and Kishan Lal (Chaukidars) and several others of the village Biharipur came after them who followed the accused and challenged them. The accused then left the dead body of Ram Charan at a distance of about 2 furlongs towards north of dJbadi of village Biharipur on the Mend of sugarcane field of Natthu Ahir and ran away. After leaving the two Chaukidars, the two Pradhans Sohan Lal and Gajraj Singh and several other persons near the dead body, the informant Sohan Lal, son of Prasadi Lal went to the Police Station and lodged the F.I.R. by oral narration.
4. The complainant had suffered several injuries on his person and was sent for medical examination. A case was registered and investigation followed as usual. Reaching the spot, the Investigating Officer found the dead body lying on the Mend of sugarcane field of Natthu. He deputed PW 4 S.I. Babu Ram Diwakar for preparation of Panchayatnama of the dead body and busied himself in interrogating the witnesses of the occurrence and in other activities related to investigation. The same day, he went to village Dalpatpur and searched the house of Kalyan and recovered one bloodstained lathi which was cut in three pieces and was taken in possession. Blood stained lathis was recovered from the houses of Dal Chand and Brij Pal also which were taken in possession by the Investigating Officer. From the house of Dhakan also, a bloodstained lathi was recovered and taken into possession.
5. PW 6 Dr. K.P. Singh had conducted autopsy on the dead body of Ram Narain oh 2.10.1979 at 4 P.M. The deceased was aged about 50 years and about 1 Vi day had passed since he died. The following ante mortem injuries were found on his person:
1. A transverse incised wound, 5 cm x 2 cm x bone deep on the top of the scalp, 16 cm above the root of the nose.
2. An oblique incised wound, 7 cm x 1 cm x bone deep, on the top of the scalp, 2.5 cm behind and below injury No. I.
3. An oblique incised wound, 2.5 cm x .5 cm x bone deep, on the right side of the scalp, 6 cm above the outer aspect of the right eyebrow.
4. An oblique incised wound, 3 cm x 1 cm x muscle deep, on the right side scalp, 4 cm above the upper margin of the right ear root.
5. An oblique incised wound, 3 cm x V2 cm x ¥2 cm djsep on the right side scalp, 7 cm above the upper margin of the right ear.
6. An oblique incised wound, 3lh cm x V2 cm x V2 cm deep on the right side scalp, 2 cm behind injury No. 5.
7. Contusion 4 cmx4 cm on the top of right shoulder.
8. Contusion 6 cm x6 cm on the back of the right elbow joint and adjacent parts of the right arm, with fracture of the underlying bone.
9. Contusion 8 cm x 8 cm on the dorsal region of the right hand, just below the wrist joint
10. Contusion 4 cm x 4 cm on the right side chest just below the right nipple.
11. Contusion 9 cm x 4 cm on the right side chest, 2.5 cm below and outer to the injury No. 10.
12.Abraded contusion 8 cm x 5 cm on the fronto-medial aspect of the right knee joint.
13. Abrasion 2 cm x 1 cm on the back of the left elbow joint.
14. Abraded contusion 41 cm x 30 cm on the back just below the root of the neck.
6. The internal examination showed fracture of skull bones into pieces. Brain membranes were ruptured at places. The brain was lacerated. The base of skull was also fractured. Stomach was empty. Small intestine contained gases. Large intestine contained gases and faecal matter.
7. The death had occurred due to shock and haemorrhage as a result of ante mortem injuries.
8. The injuries of Sohan Lal injured were examined on 10.1.1979 at 4.40 P.M. by PW 5 Pr. G.N. Bhargava at District Hospital, Bareilly. The following injuries were found on his person:
1 Contusion 5 cm x 2 cm on posterior aspect of right forearm and wrist joint.
2. Lacerated wound 2 cm x 1 cm x skin deep on posterior aspect of left forearm, 2 cm below left elbow joint.
3. Lacerated wound 3 cm x .5 cm x skin deep on anterior aspect of left knee joint, 2 cm below left knee joint.
4. Contusion 5 cm x 2 cm on anterior aspect of left leg 4 cm below injury No. 3.
5. Abrasion 1 cm x 1 cm on right knee joint on anterior aspect.
6. Contusion 3 cm x 1 cm on lateral aspect of right knee joint.
7. Contusion on tip of index, middle and ring fingers of right hand.
8. Lacerated wound 1 cm x 1 cm on tip of left little finger.
9. In order to prove its case, the prosecution examined 11 witnesses out of whom PW 1 Sohan Lal, PW 2 Durga Giri and PW 3 Gajraj Singh were the witnesses of fact. PW 7 Bharat was examined as one of the public witnesses of recovery of blood stained lathis from the houses of Dal Chand, Brij Pal, Kalyan and Dhakan. The rest were formal witnesses including two doctors and the Investigating Officer. Constable Jai Narain, Constable Dushyant Kumar and Prabhakar Prakash Saxena, Clerk of the office of the Chief Medical Officer, Bareilly were examined as CW 1, CW 2 and CW 3 respectively.
10. The accused did not adduce any oral evidence in defence. Their case was of denial and of false implication.
11. Finding fault with the prosecution evidence, the trial Judge recorded acquittal.
12. We have heard Sri K.P. Shukla, learned A.G.A. from the side of the State and Sri T.S. Dabas learned counsel for the accused respondents.
13. The State Counsel has argued that the learned trial judge discarded the trustworthy prosecution evidence proving the guilt of the accused, without any cogent reason. On the other hand, the counsel for accused respondents supported the acquittal, urging that time and place of occurrence was doubtful; that there was no evidence of dragging of the deceased; that possibility of false implication was very much there and that no independent witness had been examined by the prosecution in support of its case.
14. We have carefully scrutinized the record and evidence to weigh the worth of respective arguments advanced from the two sides and we find that the view taken by the learned trial judge is reasonable one which cannot be disturbed or interfered with in appeal. Rather, the finding of acquittal recorded by the trial court is well justified. It is not a case of perversity or misreading of evidence.
15. Though the Cr.P.C. does not make any distinction between an appeal from the order of acquittal and appeal from conviction so far as the powers of appellate court are concerned, but it is settled law that in an appeal against an acquittal, the High Court should refrain from disturbing the finding of fact merely on the possibility of an alternative view in respect of evidence and the case. If the view taken by the trial court in recording acquittal is reasonable one, the same should not be interfered with.
16. In the case at hand, several factors and circumstances are lined up to justify acquittal. It is first to be noted that as per the prosecution, it was a case of pre-planned murder. That being so, it was unnatural that the accused would have taken it into their heads to assault the victim Ram Charan in front of the shop of PW 2 Durga Giri in village Biharipur. The evidence of PW 1 Sohan Lal was to the- effect that he and Ram Charan deceased were going from their village Dalpatpur to Biharipur to give the rupee of Shagun to Chaudhary Chet Singh, Zamindar. The accused could have ambushed these two persons some'where in the way in the jungle either between Dalpatpur' and Biharipur or between Biharipur and Mehtarpur, instead of launching assault in the heart of abadi of village Biharipur at the shop of PW 2 Durga Giri. Further, it was an admitted fact that the way to Mehtarpur passed by the side of village Biharipu'r and did not go inside the village abadi. The pretext put forth by PW 1 Sohan Lal for going inside the village abadi of Biharipur was that they had to purchase Biris, which led them to the shop of PW 2 Durga Giri. The explanation did not have the attraction of logic. Ordinarily, they would have carried Biris from their own village. Even if it is taken for a moment for the sake of argument that they had decided to purchase Biri from the shop of Durga Giri, then they would have walked away on their way to Mehtarpur instead of sitting on a cot outside his shop to smoke Biris. Smoking could comfortably be done by them on their way. It appears that such an excuse was put forth by the prosecution to make a show of producing an independent witness PW 2 Durga Giri.
17. Apart from PW 2 Durga Giri, the other two, i.e., PW 1 Sohan Lal and PW 3 Gajraj Singh were highly interested and partisan witnesses who were inimical to some of the accused. No doubt, PW 1 Sohan Lal was an injured witness, but this fact only guaranteed his presence on the spot but not the truth of what he was deposing. We shall deal in detail about the veracity of the witnesses a little letter.
18. The second improbability in the prosecution story was that no signs of forceful dragging to a considerable distance of about 2 furlongs had been found on the dead body of Ram Charan deceased. It came to be stated by PW 1 Sohan Lal that the distance between the shop of PW 2 Durga Giri and the spot where the dead body of Ram Charan was left by the accused respondents was about two furlongs. If he had been dragged to such a long distance, deep signs of dragging would have been found at the time of his post mortem. He did sustain three abraded contusions {ante mortem injuries No. 12, 13 and 14) on right knee joint, on left elbow joint and on the back just below the root of neck, but they could be sustained by lathi blows. Dragging to a distance of two furlongs would have left deep signs of the same on other parts of the body also. It can justifiably be inferred that the anxiety of the prosecution was to project PW 2 Durga Giri as an independent witness and with that idea, the occurrence of assaulting Ram Charan was shown to have taken place in front of his shop.
19. Yet another improbability striking at the bottom of the prosecution was that in case the accused respondents assaulted and murdered Ram Charan in front of the shop of PW 2 Durga Giri, they would not have taken the risk of dragging him to a distance of about two furlongs for throwing his dead body in Begul river in the northern side of abadi. Such conduct of dragging after committing the murder. attributed to the accused respondents was wholly unnatural. While I dragging the dead body to such a considerable distance, they could have been seen by the witnesses or even overpowered. They could |iave suffered injuries also at the hands of the witnesses. They would not have been fools of such high order to incur such risk. Having accomplished their job of finishing Ram Charan, their uppermost anxiety would have been to flee away from the scene of occurrence, instead of providing an opportunity of being manhandled or apprehended by the witnesses.
20. Though stomach contents of the deceased cannot be a sure guide to determine the time of death, but in the present case, the factum of stomach of the deceased having been found empty is a circumstance which probablizes that the incident might have taken place early in the morning and not at about 9.30 A.M. as alleged by the eyewitnesses. As per PW 1 Sohan Lal he and Ram Charan had started from the village at 9 A.M. It does not stand to reason that Ram Charan would have started from his home without partaking anything. There is no evidence to the effect that the persons going to the Zamindar of village Mehtarpur to offer customary Shagun rupee, were to be treated with a feast there.
21. In fact, the number and nature of the injuries sustained by .- the deceased also did indicate as if the assailants assaulted him at leisure when none was around to challenge them. Going through the statement of PW 5 Dr. G.N. Bhargava who examined the injuries of PW 1 Sohan Lal and PW 6 Dr. K.P. Singh who conducted autopsy on the dead body of the deceased, we find that the possibility of the two having been assaulted at about 4 or 5 A.M. in the morning on that day could not be ruled out.
22. The prosecution evidence was that after assaulting the deceased and PW 1 Sohan Lal, two of the accused, namely, Kalyan and Asharfi caught hold of the feet of the dead body and dragged it, saying that they would cut it into pieces and throw the same in river Begul but when the witnesses and other persons of village Biharipur followed them, they left the dead body on the Mend of the field of Natthu. There is no evidence that any of the so-called witnesses had any weapon. Five of the accused were allegedly armed with lathis and the sixth one had a deadly weapon Kanta, It is not acceptable that merely on verbal challenge of the so-called, witnesses, they would have abandoned their avowed mission incomplete by dropping the dead body of Ram Charan at the Mend of the sugarcane field of Natthu.
23. Veracity of the eyewitnesses PW 1 Sohan eLal, PW 2 Durga Giri and PW 3 Gajraj Singh may now be looked into. PW 2 Durga Giri, projected as a independent witness was examined before the court below on 30.9.1980/16.9.1980 regarding the incident of 1.10.1979. He gave his age as 93 years. He stated that for the last three years his eyesight was blurred. He also stated that out of the six accused persons, he knew Dal Chand, Kalyan and Dhakan from before and had seen the other three on that date for the first time. In cross-examination in paragraph 8, he stated that earlier to the incident, he did not know the accused by names, but only by faces. He also stated that he knew the witnesses Sohan Lal, Lalta Prasad, Gajraj Singh and Data Ram only by faces and not by names and that he came to know the names of these witnesses after the incident when he inquired the same from Sohan Lal. Changing his earlier statement, he stated that he knew Kalyan and Dhakan accused from before and knew the names of others from Sohan Lal when Marpit was going on. No reliance could be placed on the testimony of such a witness of extremely advanced age with blurred eyesight. We note from paragraph 9 of his cross-examination that to have an idea about the eyesight of this witness, the Presiding Officer showed him four fingers asking him to make a reply as to the number of fingers. He replied that the fingers were three. He also stated that he was seeing two faces of the Presiding Officer. At that time, the distance of this witness from the Presiding Officer was only two paces. True, he was cross- examined on 16.9.1980 but his eyesight could not be much better about a year back in view of his own statement that he was having blurred eyesight for the last about three years. Obviously, his testimony was liable to be ignored.
24. The other two eyewitnesses PW 1 Sohan Lal injured and PW 3 Gajraj Singh were highly interested, partisan and inimical. PW 3 Gajraj Singh was a chance witness too. A chance witness is one who happens to be at the place of occurrence by co-incidence or chance. And if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused, then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible, but does require cautious and close scrutiny.
25. PW 1 Sohan Lal was the stepbrother of Dai Chand accused (now dead). The accused Asharfi and Lakhpat being nephews of Dal Chand are the nephews of this witness also. Admittedly, he had enmity with his stepbrother Dal Chand, so much so that he prevailed upon his friend -PW 3 Gajraj Singh, Pradhan to proceed against his stepbrother for allegedly making encroachment on the Gaon Sabha land by extending his house. Admittedly, he had been doing pairvy in that case against his stepbrother Dal Chand. It came down from him that till their parents were alive, he and Dal Chand lived together but thereafter, he separated and started living separately. It was not disputed that he did not get any share in the ancestral house, though he wanted to take his share. The defence had filed an F.I.R. (Ex. Kha-1) in which Asharfi accused was cited as a witness against him. So, he was inimical against Asharfi also. The possibility could not be ruled out that though he and Ram Charan were assaulted simultaneously in early hours of 1.10.1979, but he roped and necked in his arch enemies and those whom he supposed to be forming a group. May be that the assailants were unknown or some of them were out of the accused respondents, but then the truth is so inextricably mixed with falsity that it is not possible to separate the same and the benefit of such a fluid state has to go to all the accused respondents.
26. So far as PW 3 Gajraj Singh is concerned, he was Pradhan of village Dalpatpur but living in village Hariharpur. It came down from PW 1 Sohan Lal that PW 3 Gajraj Singh, Ram Charan deceased and he himself were great friends. So, he was not an independent witness. Rather, he was an interested witness. He was a super chance witness. It was just by co-incidence that he reached near village Biharipur | exactly at the time when the occurrence was taking place at the shop i! of PW 2 Durga Giri. He allegedly heard alarm on the way outside the abadi of village Biharipur. The reason for his being there was also the same that he was going to give Shagun rupee to Chet Singh of village Mehtarpur. He stated that village Hariharpur was not under the Zamindari of Chaudhary Chet Singh. Chaudhary Chet Singh having not remained Zamindar of village Hariharpur, there could hardly be any question or occasion for this witness to be going to him in village Mehtarpur to offer Shagun rupee. He also stated that from his village, a direct way to village Mehtarpur was there through canal. In that way, village Biharipur does not fall. He tried to explain that he went to village Dalpatpur and from Dalpatpur he reached Biharipur. He went ; to village Dalpatpur so that he could take Sohan Lal and Ram Charan, deceased with him. He, however, stated that there was no programme fixed from before for going to village Mehtarpur together. It appears to us that he cooked up this story just to show his presence at the spot. He was highly inimical to the accused Dal Chand because Dal Chand had illegally encroached upon the Gaon Sabha land antf a case against Dal Chand had been filed in this behalf and he (this witness), PW 1 Sohan Lal and Ram Charan deceased were doing pairvy against him. ' So, he (PW 3 Gajraj Singh) was a chance, interested and inimical witness whose testimony could not inspire judicial confidence. His presence itself at the spot being shrouded in dubious circumstances, the trial court was justified in rejecting his testimony as also of the other so-called eyewitnesses having regard to other factors and circumstances as surfacing which we have alluded to earlier.
27. Celebrated principle of criminal jurisprudence is that the prosecution must discharge its initial traditional burden to establish the complicity of the accused. The accused can be convicted only when the prosecution succeeds in proving that the incident had taken place as alleged by it. The prosecution in the present case miserably failed to discharge this burden. Instead, the story put forth by it and attempted to be supported by three so-called eyewitnesses suffered from inherent improbabilities and incongruities. The acquittal recorded by the learned trial Judge is perfectly justified.
28. In view of the above discussion, we dismiss the appeal. The appeal has already abated with regard to the accused respondents Dal Chand, Kalyan and Dhakan who died during the pendency of the appeal.
29. Certify the judgment to the lower court.