Allahabad High Court
Balbir Singh (Dead) And Ors. vs The State on 15 March, 1991
Equivalent citations: 1991CRILJ3080
JUDGMENT Palok Basu, J.
1. Balbir Singh and five others have filed this appeal against the judgment and order of the Second Additional Sessions Judge, Muzaffarnagar dated 7-6-1978 in Sessions Trial No. 302 of 1977 wherein the appellants were convicted and sentenced as under:
(i) All the appellants Under Section 302/149, IPC to imprisonment for life.
(ii) Balbir Singh, Niranjan Singh and Ompal Under Section 324/149, IPC to two years' R.I. 7 Under Section 323/149, IPC to six months' R.I.
(iii) Ashok, Jaipal and Molhar alias Krishna Pal to two years' R.I. Under Section 148, IPC Under Section 324/149, IPC to two years' R.I. and Under Section 323/149, IPC to six months' R.I. All the sentences were directed to run concurrently.
2. The charge against the appellants was that on 13-4-1977 at about 9 a.m. All the appellants formed an unlawful assembly in village Kallarpur falling within Police Station Kotwali, district Muzaffarnagar being armed with sharp-edged and blunt weapons and in prosecution of the common object caused the death of Karam Singh and caused injuries to Raja Ram, Amar Singh and Smt. Sushila, Consequently the charges Under Sections 147, 148, I.P.C. were framed against the appellants in accordance with the weapons with which they were armed, Balbir Singh, Niranjan Singh and Ompal were alleged to have been armed with lathi, Ashok was armed with a Bhala and Jaipal and Molhar alias Krishnapal were armed with Ballams.
3. The prosecution allegation is that the appellants Balbir and Niranjan are brothers, Ashok and Ompal are sons of Niranjan while Molhar and Jaipal are nephews of Balbir Singh and Niranjan. The deceased Karam Singh was father of P.W. 1 Subhash Chand, Raja Ram, P.W. 2, and Amar Singh, the two injured, are uncles of Subhash Chand and Smt. Sushila (P.W. 3) is sister-in-law (Bhabhi) of Subhash Chand. The agricultural plots of the accused and deceased Karam Singh are adjoining. The accused wanted to purchase the plot of Karam Singh but Karam Singh and Subhash Chand had not agreed. The accused had broken the partitioning wall (Mend) and included certain portions of Karam Singh's field into their field. Lobia crop was sown in the field of Karam Singh. The accused had extended threat. On 13-4-1977 Subhash Chand (P.W. 1), Raja Ram (P.W. 2) and Amar Singh along with Karam Singh had gone for sowing sugarcane at about 6 a.m. which continued till 8 a.m. when the appellant Balbir Singh placed his cart (Baggi) in the field of Karam Singh damaging the lobia plants. Seeing this, Karam Singh protested and came to Balbir Singh to say that he should remove his Buggi. The appellants abused Subhash Chand and Raja Ram had come at the altercation between Karam Singh and Balbir Singh appellant, Niranjan Singh and Balbir Singh started beating Karam Singh with lathis when Karam Singh plied Paini (small lathi) in self-defence. Amar Singh, the uncle of Subhash had also reached there raising an alarm. Balbir Singh and Niranjan Singh appellants left the place threatening that Karam Singh would have to face the consequences as nobody had challenged them so far. The deceased Karam Singh, Subhash Chand, Amar Singh and Raja Ram returned to their houses. By about 9 a.m. the six appellants armed with the weapons mentioned above, came to the house of Karam Singh and started beating him over the chabuotra. Amar Singh was dragged from his Dubri and was beaten. Raja Ram too was beaten inside the Dubri. Subhash Chand, informant, saw this incident from the tarrace. The accused then broke the Chaukhat and the door of the Kotha of Karam Singh and appellant Ashok entered inside it and gave a beating to Smt. Sushila (P.W. 3). At the alarm being raised Kaloo, Ghanshyam and several others of the village had collected. Subhash Chand brought the three injured and deceased Karam Singh to the hospital. On the way, however, Karam Singh died. Therefore, instead of going to the hospital Subhash Chand decided to go to the police Station where he lodged an oral first information report at 12-30 p.m. on 13-4-1977. Kedar Singh, head-moharrir, made the necessary entries in the general diary and registered the case and directed Amar Singh and Raja Ram to be sent for medical examination. Amar Singh was medically examined by Dr. D. P. Arora on 13-4-1977 at 1-15 p.m. while Raja Ram was medically examined at 1-35 p.m. reports whereof were prepared and duly proved as Ex. Ka-3 and Ex. Ka-4. Amar Singh had one lacerated wound four contusions and an abrasion. Raja Ram had three lacerated wounds and an abraded contusion.
4. The prosecution case about the medical examination of Smt. Sushila (P.W. 3) is that she was not taken either to the Police Station or to the hospital throughout the day. However, in the night she was sent for medical examination which took place at 1.10 A.M. in the night between 13-14-4-1977 and she is supposed to have a contusion about 3" x 1" only. This witness too has been examined by Dr. D. P. Arora who has proved the injury report Ex. Ka. 5.
5. P.W. 9 Beni Ram Gopal was the Inspector-in-charge of Police Station Kotwali, Muzaffarnagar on the day of the incident. The F.I.R. was lodged in his presence. He deputed S.I. Virendra Singh Tyagi for preparing the inquest report. The dead body was brought to the thana. Along with the police personnel of Police Outpost Abana. He reached the place of ccurrence. Smt. Sushila is said to have been interrogated in the night and then site plan was prepared. Blood stained earth was collected as well as that of plain earth. Broken Chaukhat and the door were also taken into custody and handed over in the supurdgid of Subhash Chand. He also inspected the lobia field where the former incident had taken place and made a separate siteplan for it. Blood stained earth was taken from that place also. The distance between the two places has been noted by him to be about a furlong. The other witnesses who had been examined were interrogated on 28-4-1977 and after completion of the investigation the charge sheet Ex. Ka-15 was submitted on 13-5-1977.
6. The appellants have, however, an entirely different story to put forward. They seriously challenged the prosecution allegation about the incident having taken place in two instalments the first at the field and the second at the house. They also challenged the participation of the appellants and insist that only one incident has happened at about 9.30 A.M. in the field where two of the appellants Balbir Singh and Niranjan Singh were beaten as a result of which one of them plied lathi in their self-defence and ultimately one of them snatched a Ballam from Raja Ram and plied in self-defence resulting in some injuries on the prosecution side. They further alleged that they had gone to lodge the first information report at the police station where they were made to sit down for long but their report was not taken down and instead the accused were sought to be arrested.
7. The further case of the defence is that the two appellants Balbir and Niranjan were medically examined on 13-4-1977 at 12.10 P.M. and 12.05 P.M. i.e. immediately after noon. They examined D.W. 1 Dr. N.C. Bahuguna who was then posted as Superintendent, District Hospital, Muzaffarnagar. The two appellants Niranjan and Balbir had the following injuries;
Niranjan:
1. Incised wound 3/4"x1/4"x scalp deep on left side of head towards back 3-1/2" above left ear 1 O'clock position tailing downwards.
2. Abrasion 4-3/4" x 1/3" on upper part left scapular region on back of chest.
3. Traumatic swelling 1-1/2" x 1" on front of chest wall lower part right side and complains of acute pain in chest on breathing.
4. Traumatic swelling 1" x 1 / 2" on lower of outer part right thing. Complains of pain both thiggs and calrfs.
Injury No. 3 kept under observation. X-ray advised. No. 1 caused by sharp-edged weapon. No. 2 by friction and 3 and 4 by blunt weapon. Duration of injuries is fresh.
Balbir Singh
1. Traumatic swelling 2" x 1" on right side head 2-1/2" above right ear at 12 O'clock position.
2. Bruise (colour red) 2" x 1 / 2" over middle of right scapula on back of chest.
3. Bruise with abresion linear on back of chest upper part right side (colour red).
4. Faint bruise on upper of outer part back of chest left side (colour red).
5. Incised wound 1/2" x 2/8" x skin on back or upper part left forearm tailing upwards.
6. Traumatic swelling 1" x 1/2" at the back of right thumb.
7. Traumatic swelling 3/4" x 1/2" on inner part right knee joint.
All injuries are simple. No. 5 caused by sharp edged weapon No. 3 by friction and rest by some blunt weapon. Duration of injuries was fresh.
8. The defence case further is that Smt. Sushila had not received any injury whatsoever and in order to divide the entire prosecution case into two sets the theory of breaking open the door of Karam Singh's house and causing injuries to Smt. Sushila had been concected.
9. The appellants have examined Sukhbir Singh (D.W. 2) and Nakli Singh (D.W. 3) as eye-witnesses of the occurrence as alleged by them. They examined D.W. 4 Indrapal Singh, head constable, to prove that they had also lodged a first information report with S.P. Muzaffarnagar on the basis of which a case was registered. The appellants, however, alleged that the Sub-Inspector Beni Ram colluded with, the prosecution and wrongly filed a final report in their case and charge-sheeted the appellants with mala fide intentions. They also examined D.W. 5 Chandra Dutt for proving some relationship between the prosecution witnesses.
10. In matter where the accused comes out with the plea of self-defence right from the beginning and seriously disputes the place of occurrence as well as the manner of assault, the recovery of blood from the alleged place of occurrence and the medical examination of the various injured witnesses assumes paramount importance. In the instant case, however, even though the prosecution alleges to have recovered blood from the several places, there is nothing on record to indicate that the prosecution made any attempt to send the said earth to Chemical Examiner or to the Serologist and, therefore, there is no scientific data available before the Court on the basis of which the place of occurrence can be fixed independent of the eye-witness account. Rival versions having come into existence at the earliest moments it was the duty of the Investigating Officer to place before the Court the correctness as to the place of occurrence and it will not be exaggeration to say that by not producing the chemical examination's report or Serologist's report, they have tried to by pass the truth, if any.
11. Sri Virendra Saran and Sri S.K. Agarwal, learned counsel for the appellants who have argued the case at length submitted that in the instant case the reasoning of the learned Trial Judge in convicting the appellants is erroneous in asmuch as he has wrongly placed too much of burden on the accused side even though they have come out with the plea of self-defence from the beginning. Sri A.K. Dwivedi, learned Addl. Government Advocate appearing for the State has, however, contended that if the accused have failed to substantiate their defence version by reliable evidence as per the finding recorded by the Trial Judge their theory must be rejected and the version put forward by the two injured witnesses, namely, P.W. 2 Raja Ram and P.W. 3 Smt. Shushila, duly corroborated by P.W. 1 Subhash Chand, would lend more than sufficient strength to the prosecution case. The entire evidence has been examined.
12. It is remarkable that while three of the appellants having lathis, two of them having Ballams and one of them is having Bhala, none of the injured witnesses have any sharp-edged or pointed weapon injury. It is only the deceased who has received one incised wound and two incised punctured wounds along with three abrasions. The appellants have on the other hand two incised wounds. One abrasion, five traumatic swellings and three bruises on their side. In other words, the appellants' have two sharp-edged weapon injuries on their side while the prosecution side has suffered three sharp-edged weapon injuries on their side. The total number of other injuries sustained by the respective sides indicate a possible free-fight.
13. Keeping the aforesaid picture of the injuries in view, the prosecution case may be examined indepth.
14. P.W. 1 Subhash, the informant who alleges to have accompanied the prosecution party in both the incidents, has not received a single scratch. He is admittedly the son of the deceased Karam Singh. It is unlikely to believe that if the entire incident had happened in his presence as stated by him, he would not sustain, injuries at least in order to save his father. His conduct in keeping himself at greater distance and permitting his father and uncles to be beaten does not inspire confidence.
15. P.W.2 Raja Ram has only four simple blunt weapon injuries. It is impossible to say that none of the three persons allegedly armed with Bhala and Ballam would be touching him if he had received the injuries in the manner as alleged by him. So far as Amar Singh is concerned, he has not been examined by the prosecution and, therefore, for purposes of this case his presence and having received injuries is to be ignored.
16. Even if the injuries of Amar Singh are totalled up, the prosecution side would be suffering 13 injuries of blunt weapon and three sharp-edged/pointed weapon injuries which would be nearly equal to the injuries on accused side.
17. Much criticism has been levelled as regards P.W. 3 Shushila, alleged injured witness. The basic criticism advanced on behalf of the learned counsel for the appellants about the presence of P.W. 3 Smt. Shushila is that if the prosecution case is accepted as it is, there was no occasion for the appellants to go to the extent of breaking the door once they had already found Karam Singh outside and had also beaten him. The need and necessity to break open the door may arise only if the real object of assault is hidden inside. Once that was not so, the whole edifice of the prosecution case, being ill found, falls to the ground and, therefore, Smt. Shushila's witnessing anything in the house becomes extremely doubtful, if not impossible. It was rightly pointed out that there is no earthly reason for delaying the medical examination of Smt. Shushila if she was an injured witness. What prevented the prosecution from getting her examined through doctor is beyond comprehension. It is stated that Amar Singh and Raja Ram had been sent to the doctor where medical examination was done around 1 P.M. if that is so and Smt. Shushila had received injuries in the incident, there was no ostensible reason why her injuries would not have been examined then and there while two of her relatives had been sent to the hospital. The very nature of the injuries sustained by her appears to be too insignificant to be taken notice of. It is a contusion 3" x 1" on the right side of back. Causing of this injury is attributed to appellant Ashok. However, the said appellant Ashok is said to be armed with a Bhala and, therefore, the case set up in the court is that Ashok had beaten her with the handle part of the Bhala as the weapon part of it had broken away. It is remarkable that while the investigating Officer had recovered the door and the chaukhat no remainder of the weapon known as Bhala is found from the spot. It is not even noted by him in the case diary nor does he depose to, that he made any search for the Bhala part which was broken. There is yet another reason to expect that Smt. Shushila is not a truthful witness. In the very nature of things Kiranpal, her husband, was present. He has not sustained any injury. Subhash Chand (P.W.1) has stated that he and Kiranpal had gone inside the house after the incident and from over the roof top had seen the incident. Further case set up by Subhash was that Smt. Shushila was already out side the house when the appellants had assaulted Karam Singh. Once the assault had begun, there was no justifiable reason for Smt. Shushila to run inside and bolt the door from within as other prosecution witnesses belonging to the family were all outside. Consequently, the very presence of Smt, Shushila in the incident, said to have happened later on in the house, is doubtful, it may be remembered that alleging herself to be an injured witness by itself is not a guarantee of her presence and truthfullness but it is always the attending circumstances which make her or him a probable witness of the incident. As noted above, there appears to be enough doubt in the prosecution; story about the incident having taken place in the house at all and, therefore, the presence of Smt. Shushila automatically becomes doubtful.
18. The prosecution admits that the neighbouring fields belonged to Sukhbir Singh and Nakli Singh. The prosecution further admits that at the time of incident two of the residents of the nearby locality namely, Kalloo and Ghanshyam were present as witnesses. It is remarkable that the prosecution has not produced either Kaloo or Ghanshyam whereas the appellants have examined Sukhbir Singh (DW 2) and Nakli Singh (DW3). The consistent statement of the said two witnesses Sukhbir and Nakli Singh is that the deceased Karam Singh had a Palkati with him which he weilded on the appellants which was warded off. The incised injuries sustained by the defence side (appellants Balbir Singh and Niranjan) lend enough corroboration to the defence version that they were assaulted by a cutting-sharp weapon like Palkati.
19. At this stage a word may be said about the explanation given in the first information report lodged by Subhash and his testimony in the Court to the effect that Paini which Karam Singh had used at the time of the incident had a nail attached at the top of it. The first information report is silent as to the alleged fixture of the nail-type of iron piece at the top of the Paini. This appears to be a subsequent improvement in the statement of the eye-witness Raja Ram as also Subhash (PW 1) that the said Paini had a nail-type of fixture at the top of it only to give an explanation of the incised injury sustained by the appellants Balbir Singh and Niranjan. It is impossible to place reliance upon the testimony of these two witnesses about a small danda having a nail type of fixture on the top of it. Commonly no danda can have a nail fixed because that by itself may cause injury to the man holding it rather than causing injury to any one else. Therefore, the explanation offered about the incised wounds suffered by the appellants Balbir Singh and Niranjan Singh is extremely doubtful, if not an utter concoction.
20. It was argued that the prosecution has come out with a tainted investigation in the instant case. It was rightly pointed out that the Investigation Officer (has not mentioned the crime numbers on the memorand unprepared which has been marked as Ex.Ka.11 and Ex.Ka.14. So far as these two exhibits, i.e., Ka-11 and Ka-14 are concerned, they refer to the alleged recovery of bipod stained earth from the place of occurrence. The, fact that the two site plans prepared by the Investigating Officer finds mention of crime no. of the case does not help much the prosecution in establishing its fairness. The recovery memo of blood stained earth allegedly bore the signatures of general public which is not the case with the site plan. It was again said that the dead body reached the mortuary next day and there was no justifiable reason for it. From the statement of PW 5 Prakash Chand it is not clear as to why he could not get a rickshaw or some other conveyance to take the dead body on that very day for post mortem examination to the mortuary. He admits that it is on 14-4-1977 that the post mortem examination had been conducted. The noting on the post mortem examination report indicates that the post mortem examination was done on 14-4-77 at 5 p.m.; the probable time since death has been noted as one day. There is, however, a mention of the papers having been received on 13-4-1977 as is deposed to by the constable Prakash Chand, PW 5. The other aspect to be highlighted is that copy of the general diary was not sent along with the papers for post mortem examination. The overwriting made by S. I. Virendra Singh Tyagi (PW 8) on the inquest report has its own story to tell. What was the original timing has been overwritten to make room for guess-work. The explanation that he had earlier written 12-20 p.m. which has been corrected as 12-30 p.m. does not admit of truthfullness because there was sufficient space on either side of the original writing as to put in any time the prosecution chose to later on.
21. It is again significant that the Chitthi Mazroobi (letter for medical examination). Ex.Ka-3 and Ka-4 also do not have crime number mentioned on them. It is only on Ex.Ka-5 which relates to Smt. Shushila that crime number is mentioned. It appears, therefore, that by the time when the case of Sushila receiving injury in the incident was finalised that she was sent for medical examination and by that time the calendar-day had changed and thus crime number had come to be written in the police records and, therefore, it was so mentioned in Ex.Ka-5, her Chitthi Mazroobi. Therefore, the lodging of the first information report at the time alleged by the prosecution appears to be shrouded in mystery.
22. Under the circumstances the medical examination of Smt. Shushila after midnight, i.e., at 1-10 a.m. has cast serious as persons on the entire investigative machinery. As noted above, the prosecution has either not sent the alleged blood stained earth etc. taken from the alleged place of incident near the house for examination by the Chemical Examiner or, if the report had come, it may not have been favourable and that is why no such report is there on the record. It has been noted above that in the instant case the dispute about the place of occurrence has assumed vital importance. The contention of the defence is that there was only one place of occurrence where they were beaten by the prosecution side whereas the prosecution allegation has split the incident into two sets -- one in the field and the other near the house. If in such an important case the prosecution has not performed its duty by producing the report of the Chemical Examiner or Serologist indicating recovery of human blood from nearabout the house (Kotha) of Karam Singh the prosecution should thank itself for its negligence which, again, strengthens the suspicion in the mind of the Court about truthfullness of the version put forward by it.
23. With this background the eye-witness testimony suggesting the incident having commenced in the field and culminating at the house is rejected. Once that is done, the appellants' case appears much more probable and it should be held that they have been able to prove preponderance of probability in support of their version. The learned Trial Judge has considered this aspect of the matter but took the view that the incised injuries may be taken to have been explained by the prosecution evidence. Since we are not satisfied about that part of the prosecution case the reasoning of the Trial Judge also fails to convince us about the truth of the prosecution story. Side by side, the testimony of defence witnesses Sukhbir Singh and Nakli Singh finds more than enough corroboration from the medical reports of Balbir Singh and Niranjan appellants. In view of the aforesaid discussion the prosecution case against the appellants cannot be held to have been proved beyond reasonable doubt.
24. The appeal is consequently allowed. The conviction of the appellants and the sentences awarded to them by the trial Court are set aside. They are on bail. They need not surrender and their bail bonds are discharged.