Allahabad High Court
Pnachu vs State Of U.P. on 8 July, 2022
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. - 45 Case :- CRIMINAL APPEAL No. - 7719 of 2009 Appellant :- Panchu Respondent :- State of U.P. Counsel for Appellant :- A.K. Dixit Counsel for Respondent :- Govt. Advocate,Ram Ashish Pandey With Case :- CRIMINAL APPEAL No. - 8120 of 2009 Appellant :- Shani Respondent :- State of U.P. Counsel for Appellant :- G.P. Dikshit,Pramod Kumar,Raj Narayan,Vindeshwari Prasad Counsel for Respondent :- Govt. Advocate,Ram Ashish Pandey Hon'ble Manoj Misra,J.
Hon'ble Sameer Jain,J.
Delivered by Hon'ble Sameer Jain, J.
1. As both the appeals are against a common judgment and order, they are being decided by a common judgment. These two appeals have been preferred against the judgment and order dated 27.11.2009 and 30.11.2009 passed by Special Judge (SC/ST Act) Etawah in S.T. No. 41 of 2007 whereby, the appellant Shani has been convicted under Section 302 IPC whereas appellant Panchu has been convicted under Section 302/34 IPC and both have been awarded life imprisonment with fine of Rs. 10,000/- and default sentence of six months.
2. The prosecution case, in brief, is that on 04.12.2006, at about 8.45 PM, on exhortation of Panchu (appellant of Criminal Appeal No. 7719 of 2009), Shani (appellant of Criminal Appeal No. 8120 of 2009) fired a shot from a country made pistol on the head of Charan Singh @ Chini (deceased) near the house of Surendra Kumar Jatav (not examined), which was witnessed by Suresh Chandra, the informant (PW-1) and Deepak Chaudhary (PW-2). Injured Charan Singh @ Chini was taken to Etawah where, at the hospital of Dr. Manoj Yadav, he was declared dead. Body was brought to P.S. Bharthan, Etawah where the FIR of the incident was lodged at about 22.30 hours on 04.12.2006 by Suresh Chandra (PW-1), uncle of the deceased.
3. After registration of the FIR, inquest report (Ext. Ka-2) was prepared on 04.12.2006 at 23.50 hours at Police Station Bharthana Etawah. (Note:- Neither informant (PW-1) nor PW-2 is a witness to the inquest report). Thereafter, dead body was dispatched for post mortem. On 05.12.2006 at about 1.30 PM autopsy of the body of Charan Singh @ Chini (deceased) was conducted of which an autopsy report (Ext. Ka-11) was prepared by PW-4.
4. During investigation, Investigating Officer prepared the site plan of the incident (Ext. Ka-7), recorded statements of witnesses and took police custody remand of appellant Shani. Thereafter, on the pointing out of Shani, a country made pistol of 315 bore was recovered on 24.12.2006 in respect of which, a case under Section 25 Arms Act was lodged against Shani. Investigating Officer, who effected recovery of the pistol, prepared site plan (Ext. ka-9) of the place from where recovery of country made pistol was made on 24.12.2006 and on 27.12.2006 site plan of the place from where recovery of country made pistol was made was also prepared by the Investigating Officer of the case under the Arms Act, which was later exhibited as Ext. ka-16. After investigation, charge-sheet was submitted against both the appellants under Section 302 IPC whereas, a separate charge-sheet under Arms Act was filed against Shani. After taking cognizance on the charge-sheet, case was committed to the court of session. On 21.05.2007 the appellant Shani was charged for offences punishable under Section 302 IPC and Section 25 Arms Act; whereas, on 21.05.2007, appellant Panchu was charged under Section 302 read with Section 34 IPC. Both the appellants denied the charges and claimed trial.
5. During trial, prosecution examined seven witnesses. Suresh Chandra, the informant (PW-1) and Deepak Nath Chaudhary (PW-2) were the witnesses of fact whereas, the rest were formal witnesses. After recording the prosecution evidence, trial court recorded the statements of the appellants under Section 313 Cr.P.C. and convicted the appellants as above. However, appellant Shani was acquitted of the charge under Section 25 Arms Act.
6. We have heard Sri Vindeshwari Prasad, Amicus Curiae, appointed by High Court, Legal Services Committee, for the appellant Shani; Sri Arvind Kumar Dixit for the appellant Panchu; and Sri Amit Sinha as well as Sri J.K. Upadhyay, learned AGA, for the State; and have perused the record.
Submissions on behalf of the appellants
7. Learned counsel for the appellant Panchu submitted that Panchu has been assigned ornamental role of exhortation only to falsely implicate him. Further, there was no occasion for the appellant Panchu to exhort. He submitted that exhortation otherwise also is a weak piece of evidence and merely on the basis of exhortation, conviction of appellant Panchu is not sustainable with the aid of Section 34 IPC. He submitted that from the evidence on record, it cannot be said that appellant Panchu shared a common intention with appellant Shani to commit murder. He also submitted that prosecution has not disclosed any motive of the crime and from the evidence on record, it is apparent that both the prosecution witnesses, namely, Suresh Chandra (the informant-PW-1) and Deepak Nath Chaudhary (PW-2), the alleged eye witnesses, were not present at the spot and they are mere chance witnesses.
8. Learned counsel for the appellant Shani submitted that appellant has been falsely implicated by Suresh Chandra (PW-1). No motive whatsoever for the crime has been disclosed by the prosecution. Rather, a motive to implicate appellant Shani was there, as Suresh Chandra (PW-1), the informant, wanted to grab the house of appellant Shani. The other witness Deepak Nath Chaudhary (PW-2) is a close friend and associate of Suresh Chandra (PW-1), therefore, he also gave false testimony against the appellant Shani. It was submitted that even the place of incident had not been fixed inasmuch as the Investigating Officer did not collect any blood-stain earth from the spot. Moreover, PW-1 and PW-2 were chance witnesses. Their presence at the spot has not been properly explained. Thus, their presence becomes doubtful. The FIR is delayed by almost two hours even though the police station from the alleged place of incident is hardly three kilometer. Further, to explain the delay in lodging the FIR, prosecution has developed a false story that after the incident, the deceased was taken to the hospital of Dr. Manoj Yadav. Presence of PW-1 at the spot also doubtful because if he had taken the deceased to the hospital, PW-1's clothes would have been stained with blood but there is no seizure of blood-stained clothes to confirm and corroborates the statement of PW-1 that his clothes were blood-stained. Learned counsel for the appellant further submitted that as per the FIR the seat of injury was head. After post mortem, when the injury was found on the back side of neck. During trial witnesses made an improvement that the shot hit the neck of the deceased as, at the time of the shot, he suddenly turned back. This improvement indicates that both the eye witnesses were not present at the spot. Learned counsel also submitted that though it is a specific case of the prosecution that Suresh Chandra (PW-1), the informant, arrived at the police station with the dead body and inquest report was prepared at police station, but, interestingly, Suresh Chandra (PW-1), the informant, is not a witness of the inquest, which indicates that PW-1 was not present and that the FIR of the case is ante timed.
9. Both the counsels, representing the appellants, submitted that prosecution has failed to prove the guilt of the appellants beyond reasonable doubt and the trial court failed to properly appreciate the evidence on record, therefore, the appeals are liable to be allowed and order of conviction of the appellants be set aside.
Submission on behalf of State
10. Per contra, learned AGA submitted that the prosecution has proved the guilt of the appellants beyond reasonable doubt and as the FIR was lodged within two hours of the incident there was no delay, and if there was any delay, the same has been properly explained by the prosecution. Learned AGA further submitted that exhortation made by appellant Panchu clearly shows that he shared common intention with appellant Shani to commit murder of Charan Singh @ Chini (deceased) and as both the prosecution witnesses PW-1 and PW-2 consistently stated that on exhortation of appellant Panchu, appellant Shani caused firearm injury to the deceased both were justifiably convicted. Learned AGA further submitted that in a case based on ocular evidence existence or non existence of motive is insignificant and if ocular evidence is consistent then, even without proof of motive, an accused can be convicted. He also submitted that both the prosecution witnesses, namely, Suresh Chandra, the informant (PW-1) and Deepak Nath Chaudhary (PW-2), have properly explained their presence at the spot, therefore, their testimony cannot be discarded merely on the ground that they were chance witnesses. He submitted that if bloodstained clothes and bloodstained earth could not be collected by the Investigating Officer, then it may be a fault on the part of the Investigating Officer, but due to negligence of the Investigating Officer, appellants cannot be acquitted in a murder case. Learned AGA submitted that there is no major improvement in the testimony of prosecution witnesses. The seat of injury i.e. head mentioned in the FIR is very close to the neck, therefore, if in the FIR it was mentioned that the shot hit the head, it cannot be said that PW-1 did not witness the incident. Learned AGA submitted that trial court properly considered the evidence on record and rightly convicted both the appellants, therefore, both the appeals be dismissed.
11. We have given our anxious consideration to the rival submissions and have perused the entire evidence on record. Before we proceed to weigh the respective submission, it would be apposite to notice the prosecution evidence in brief.
Prosecution witnesses
12. Suresh Chandra, the informant, is PW-1, who lodged the FIR. According to PW-1, on 04.12.2006, at about 8.45 PM, when he along with Deepak Nath Chaudhary (PW-2) was going to his home from the market, he stopped his nephew Charan Singh @ Chini (deceased) walking 20 steps ahead of him. When the deceased came near the house of Surendra Jatav (not examined), appellant Shani, on exhortation of appellant Panchu, opened fire from a country made pistol upon Charan Singh @ Chini (deceased) causing him firearm injury in between his head and neck. Due to this firearm injury, Charan Singh @ Chini (deceased) fell on the spot. PW-1 and Deepak Nath Dhaudhary (PW-2) saw the incident and raised an alarm, upon which, the accused ran away. PW-1 stated that he and PW-2 were just about 20-25 steps away from the deceased and they took the deceased to Etawah in a Marshal Jeep for medical attention but there, in the hospital of Dr. Manoj Yadav, Charan Singh @ Chini, who had expired on way, was declared dead. PW-1 stated that at the hospital of Dr. Manoj Yadav, he dictated a written report to his son Satya Pratap (not examined). PW-1 proved the written report as Ext. Ka-1. PW-1 proved lodging of report (Ext. Ka-1) and recording of his statement at the Police Station Bharthana.
13. In his cross-examination, PW-1 stated that he is serving at Etawah. He admitted that his nephew Charan Singh @ Chini (deceased) was an accused in a murder case along with the family members of Deepak Nath Chaudhary (PW-2). PW-1 denied the suggestion that after the death of grand father of appellant Shani PW-1 wanted to grab his house. PW-1 admitted that his house is not in the lane/street where the house of Surendra Jatav is located. PW-1 also admitted that house of Kailash Chaudhary (father of PW-2) is one-half kilometer away from the house of Surendra Jatav and is 200 meters away from his house. PW-1 also stated that Deepak Nath Chaudhary (PW-2) did not accompany him to the market, but he (PW-2) was returning from the market. PW-1 stated that near the place of incident several residential houses were there but no one came out of those houses. Though, after the incident, a number of persons gathered there. He denied the suggestion that he lodged a false FIR, therefore, nobody was ready to support him. He also denied the suggestion that as his story is false, he did not name any person of the colony as a witness. PW-1 stated in his cross-examination that he informed the Investigating Officer that when his nephew (deceased) turned back, then shot was fired, but if this is not mentioned, he cannot assign a reason. He stated that this fact was also mentioned in the FIR, but if it is not there in the FIR, he cannot assign a reason. PW-1 however denied the suggestion that shifting the seat of injury was a deliberate improvement. PW-1 stated that he took his nephew Charan Singh @ Chini (deceased) in a Marshal Jeep to the hospital of Dr. Manoj Yadav at Etawah and with him Deepak Nath Chaudhary (PW-2), Kailash Nath (not examined) and PW-1's son Satya Pratap (not examined) were there. PW-1 stated that blood was coming out from the body of Charan Singh @ Chini (deceased) and his clothes were soaked with blood. Clothes of his son Satya Pratap (not examined) were also soaked with blood. PW-1 stated that bloodstained clothes were neither shown to the Investigating Officer nor were seized by the Investigating Officer. PW-1 denied the suggestion that as his clothes were not blood soaked, he did not hand over the clothes to the Investigating Officer. He also stated that he did not inform the Investigating Officer about the blood falling/trickling down in the Jeep. PW-1 also stated that after writing the written report (Ext. Ka-1) he along with his son Satya Pratap (not examined), Deepak Nath Chaudhary (PW-2) and Kailash Nath Chaudhary (not examined) arrived at police station. PW-1 stated that inquest report was prepared at police station and dead body was dispatched for post mortem next day at about 9.00 AM. He denied the suggestion that unknown persons committed the murder of his nephew and he did not witness the incident. He also denied the suggestion that he was called from Etawah and on the next day the FIR/written report (Ext. Ka-1) was scribed.
14. Deepak Nath Chaudhary has been examined as PW-2. He stated that on 04.12.2006 at about 8.45 PM while he and Suresh Chandra Katheria (PW-1) were walking in the lane, Charan Singh @ Chini (deceased) after parking his motorcycle, was walking ahead of them on his way back home. When the deceased arrived near the house of Suresh Jatav, appellant Shani, on exhortation of appellant Panchu, shot Charan Singh @ Chini (deceased) from his country made pistol. The deceased sustained firearm injury on the back of his head above the neck. The incident was witnessed in the street light. PW-2 stated that the deceased did not die on spot therefore, Suresh Chandra (PW-1), PW-2 and others immediately rushed him to Manoj Yadav's hospital at Etawah in a Marshal Jeep where the doctor declared him dead.
15. In his cross-examination, PW-2 stated that he was accused with the deceased and one another in the murder of Boby Yadav and that case is still pending. PW-2 stated that he and the deceased were also accused in the murder of Boby Yadav's father. PW-2 added that in the case relating to murder Boby Yadav's father he has been acquitted. According to PW-2, Suresh Chandra (PW-1) was on his way back home while returning from Etawah after attending his duties, when he (PW-2) was returning to his house from the market. PW-2 specifically stated that for returning to his house from the market, use of the lane falling in front of the house of Surendra Jatav is not required as there is a direct road from the market to his house. PW-2 stated that in that lane where the incident occurred there are shops and houses but after the shot was fired except him and Suresh Chandra (PW-1) no other person arrived from the colony. PW-2 stated, that they took the deceased to Etawah in a Marshal Jeep, owned by Bade Lal Chaudhary, who is PW-2's relative. PW-2 stated that they remained in the hospital of Dr. Manoj Yadav for about 15-20 minutes. Thereafter, though, he accompanied the dead body to the police station but he did not enter the police station. In fact, he returned back home from the police station. PW-2 denied the suggestion that at the time of incident, he was in Lucknow and he did not witness the incident. He stated that his statement was recorded next day at 7-8 AM whereas the dead body was dispatched at about 9.00 AM.
16. S.I., R. N. Yadav is PW-3. He is the Investigating Officer of the case. He stated that on 04.12.2006 he copied the chick FIR; recorded the statement of Suresh Chandra (PW-1); and the inquest report (Ext. Ka-2) was prepared by S.S.I., D.K. Singh under his instructions. He proved the documents relating to autopsy which were marked as Ext. Ka-3 to Ka-6. PW-3 also proved the site plan of the case as (Ext. ka-7). PW-3 stated that on 21.12.2006 he received information that appellants have surrendered in court therefore, a request was made for police custody remand. On 23.12.2006 the court accepted the prayer. As a result, on 24.12.2006 on the pointing out of appellant Shani, country made pistol of 315 bore was recovered. He proved the recovery memo (Ext. ka-8) and site plan (Ext. ka-9) of the place of recovery of country made pistol. PW-3 stated that after investigation, on 26.12.2006 he submitted charge-sheet (Ext. ka-10) against both the appellants under Section 302 IPC.
17. During cross-examination, PW-3 stated that there was no public witness of recovery of country made pistol. PW-3 admitted the fact that in column 3 of the inquest report, he only mentioned that death was caused by use of country made pistol. He stated that there is pitch road from police station to mortuary house and in the night also, dead body can be dispatched for post mortem. PW-3 stated that he handed over the dead body to Constable Viresh and Sandeep (both not examined) at 23:55 hours on 4.12.2006. He further stated that the dead body was received at police line on 05.12.2006 at about 10.00 AM. The distance of police station from police line is 20 kilometer. PW-3 denied the suggestion that in the morning of 5.12.2006 the informant (PW-1) was called from Etawah and after that the FIR was registered. He also denied the suggestion that because of this, the dead body was dispatched from the police station in the morning at 9.00 AM. PW-3 admitted that in the FIR, the time of incident was mentioned as 8.45 PM, but in form no. 13 (Chalannash) (Ext. Ka-5) the time of death is mentioned as 21.30 (9.30 PM). He, however, denied the suggestion that as at the time of preparing the papers FIR was not in existence, therefore, this discrepancy has occurred. PW-3 further clarified that as family members of the deceased took him to the hospital of Dr. Manoj Yadav, where he was declared dead and, thereafter, they brought the dead body to police station Bharthna, therefore, the time of death mentioned in form no.13 (Chalannash) is 21.30 (9.30 PM). PW-3 further clarified that he mentioned the time of death as 21.30 hours by including the time required to cover the distance between Etwah and Bharthana, which is about 45 minutes. PW-3 stated that as none of the shopkeepers or house dwellers of the place of the incident came forward to support the case, he did not record their statements. PW-3 stated that he did not notice bloodstains on the clothes of Suresh Chandra (PW-1). PW-3 stated that PW-1 in his statement, during investigation, did not state that the deceased sustained firearm injury between his head and neck. Rather, he stated, deceased sustained firearm injury on back of his head. PW-3 stated that PW-1 did not disclose to him that Charan Singh @ Chini (deceased) was taken to the hospital of Dr. Manoj Yadav in a Marshal Jeep.
18. Dr. Satyamitra has been examined as PW-4. He conducted the post mortem on the body of deceased on 05.12.2006 at 1.30 PM. PW-4 stated that constable Viresh and Sandeep came with the dead body and had identified the dead body. According to Dr. Satyamitra (PW-4) the deceased was aged about 40 years. Rigor mortis was noticed in upper and lower extremities. PW-4 noticed following injuries on the body of the deceased:-
"Firearm wound of entry 1.0 cm X 1.0 cm X cranial cavity deep on the back of lower part of neck in middle at level of line joining both ears posterity (middle part of ears both). Margins inverted and lacerated. Haematoma present in layers of scalp underneath injury. Occipital bone found fractured. Meninges lacerated brain matter lacerated."
One metallic bullet was recovered from brain matter. According to the doctor, the death was caused due to haemorrhage and shock as a result of ante mortem injury. At this stage, we may notice that the bullet recovered could not connect with the weapon alleged to have been recovered at the instance of Shani due to lack of characteristics.
19. According to PW-4, the deceased died about three-fourth of a day before. PW-4 proved the post mortem report of the deceased, which was marked as Ext. ka-11.
20. PW-5 is S.I. CP R.K. Pandey. He stated that on 04.12.2006 he was posted at police station Bharthana as head moharrir. He prepared chik FIR which was marked as Ext. ka-12. PW-5 stated that on the basis of written report (Ext. Ka-1) he made G.D. entry (Ext. Ka-13). PW-5 also proved the Chik FIR of the report under Arms Act which was marked Ext. Ka-14 and its G.D. was marked Ext. ka-15. PW-5 in his cross-examination stated that the name of all the persons, who accompanied the informant (PW-1) at police station have been mentioned in the G.D. He denied the suggestion that the FIR was ante-timed and was not registered on the alleged date and time. PW-5 however admitted that papers related to registration of the case were read by C.O. on 11.12.2006 and were received in the court of ACJM on 6.12.2006.
21. S.I. Dhyan Singh has been examined as PW-6. PW-6 stated that in his presence, on the pointing out of appellant Shani, a country made pistol was recovered from a cauliflower field of one Raj Bahadur (not examined) on 24.12.2006 at about 7.15 AM. He stated that he prepared the recovery memo (Ext. ka-8) on the dictation of SHO. PW-6 produced the recovered country made pistol, which was marked as material Ext.-1.
22. During cross examination, PW-6 stated that after taking Shani on police remand, SHO took out Shani from jail, brought him to police station in the night, at about 8-9 PM. SHO informed PW-6 that appellant Shani would aid in the recovery of country made pistol. PW-6, however, further stated that no disclosure statement of Shani was recorded in his presence. PW-6 also stated that at the time of recovery no public witness was present.
23. Constable Surjan Singh was examined as PW-7. He stated that on 27.12.2006 he was posted at Police Station Usarhar. He recognized the writing and signature of S.I, V.N. Singh (Investigating Officer of Arms Act), who had prepared the site plan (Paper no.7ka) and charge-sheet (Paper no. 3ka) of the case. He proved the same as Ext. ka-16 to ka-17. In his cross-examination, PW-7 stated that he cannot state as to when S.I. V.N. Singh had put his signature on Ext. ka-16. He denied the suggestion that on Ext. ka-16 and ka-17 there is no signature of V.N. Singh.
24. After recording the prosecution evidence, the trial court recorded the statement of appellants under Section 313 Cr.P.C. They denied the allegations made against them. After that, the trial court on the basis of evidence on record convicted both the appellants and awarded life imprisonment to them. Appellant Shani was convicted under Section 302 IPC whereas appellant Panchu was convicted under Section 302/34 IPC. However, appellant Shani was acquitted of the charge under Section 25 Arms Act.
Analysis
25. In the present case, prosecution has examined two witnesses of fact, namely, Suresh Chandra, the informant (PW-1) and Deepak Nath Chaudhary (PW-2). Both these witnesses claim themselves to be eye witnesses of the incident. The entire prosecution case is based upon their testimony. According to Suresh Chandra PW-1 and Deepak Nath Chaudhary PW-2, appellant Shani caused firearm injury to the deceased on the exhortation made by appellant Panchu. Learned counsel for the appellant Panchu contended that as exhortation is very weak piece of evidence, therefore, without any other overt act conviction of the appellant with the aid of Section 34 IPC is unsustainable. He placed reliance on the judgment of a division bench of this Court in the case of Pappu @ Avanish Vs. State of U.P. passed in Criminal Appeal No.938 of 2010.
26. Appellant Panchu has been convicted by the trial court with the aid of Section 34 IPC. Therefore, before proceeding further, we shall examine whether only on the ground of exhorting the assailant, the person who exhorts can be convicted with the aid of Section 34 IPC. Section 34 IPC provides:-
"34. Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
The Apex Court in Chhota Ahirwar Vs. The State of Madhya Pradesh (2020) 4 SCC 126 observed:-
"26. To attract Section 34 of the Indian Penal Code, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention [see Ashok Basho (2010) SCC 660 (669)]. To quote from the judgment of the Privy Council in the famous case of Barendra Kumar Ghosh reported in AIR 1925 Privy Council 1, "they also serve who stand and wait"."
"27. Common intention implies acting in concert. Existence of a prearranged plan has to be proved either from the conduct of the accused, or from circumstances or from any incriminating facts. It is not enough to have the same intention independently of each other."
In Sandeep Vs. State of Haryana 2021 SCC Online SC 642 the Supreme Court held that exhorting the co-accused to fire, immediately before the fatal shot is fired by the co-accused, would suggest his involvement therefore, the conviction of such an accused under Section 302/34 IPC is permissible.
Recently a three judges Bench of Supreme Court in the case of Gulab Vs. State of U.P. 2021 (12) ADJ 271 (SC) after discussing several case laws in respect of section 34 IPC observed as:-
"27. The evidence on the record clearly establishes a common intention in pursuance of which the appellant exhorted Idrish to kill the deceased. The prosecution is not required to prove that there was an elaborate plan between the accused to kill the deceased or a plan was in existence for a long time. A common intention to commit the crime is proved if the accused by their words or action indicate their assent to join in the commission of the crime. The appellant reached the spot with a lathi, along with Idrish who had a pistol. The appellant's exhortation was crucial to the commission of the crime since it was only after he made the statement that the enemy has been found, that Idrish fired the fatal shot. The role of the appellant, his presence at the spot and the nature of the exhortation have all emerged from the consistent account of the three eye-witnesses."
In the present case, according to the testimony of PW-1 and PW-2, there was a prearranged plan as both the accused were waiting for the deceased to arrive. According to those witnesses, as soon as the deceased arrived there, appellant Panchu exhorted and, immediately thereafter, appellant Shani opened fire at the deceased. Even though Panchu may not be carrying a firearm but since, according to the prosecution testimony, there appears a prearranged plan, therefore, in our view, if we accept the prosecution testimony, appellant Panchu would be sharing common intention with appellant Shani to kill the deceased.
27. Now, the question that arises for our consideration is whether prosecution has proved the guilt of both the appellants beyond reasonable doubt or not.
28. Learned counsel for appellants although submitted that prosecution has not disclosed any motive for the crime but the law is settled that absence of motive in a case based on ocular evidence is of no consequence. Therefore, we do not propose to elaborate our discussion on the question of motive.
29. In the present case, as per PW-1 and PW-2, immediately after the incident took place, the deceased was taken to Etawah to the hospital of Dr. Manoj Yadav (not examined) by Marshal Jeep, where the deceased was declared dead. Thereafter, written report (Ext. Ka-1) was written by Satya Pratap (son of PW-1) on the dictation of PW-1 and after the report was scribed, PW-1, PW-2 and Satya Pratap (not examined) and Kailash Chaudhary, father of PW-2 (not examined), took the body to the police station where report was lodged and inquest was conducted, which concluded by 23.55 hours on 4.12.2006. But neither Suresh Chandra (PW-1) nor his son Satya Pratap or Deepak Nath Chaudhary (PW-2) is a witness to the inquest report. This casts a serious doubt not only with regard to the presence of the eye witnesses at the time of the incident but also as to whether at the time of inquest, the FIR was in existence or not. Though, PW-2 tried to explain his absence at the police station by stating that he did not enter the police station but this explanation does not inspire our confidence. Further, if inquest was completed at about 23.55 hours on 04.12.2006 and dead body was handed over to police constables for post-mortem then why the body was kept at police station till 9 AM next morning and not dispatched for autopsy earlier is inexplicable. Ram Nath Yadav (PW-3), the Investigating Officer, admitted in his cross-examination that the road connecting the police station and the mortuary house was a metalled road and dead body could have been dispatched in the night too. Yet, he (PW-3) did not provide any reason or explanation for the delayed dispatch of the body.
Notably, Constable Viresh Kumar and Sandeep, who received the body after inquest proceeding on 04.12.2006 at 23.55 hours for post-mortem, were not examined by prosecution. These constables were material witnesses who could have unfolded the truth as to when dead body was handed over to them and as to why they waited till next day morning. Ordinarily, these circumstances may not be fatal to the prosecution case because it is often noticed that in night incidents some proceedings are held up for the day to break. But here inquest was conducted in the night itself yet, the two witnesses including the informant, who were with the body, are not witnesses of the inquest report and specific suggestion has been put to the prosecution witness that PW-1 was in Etawah and, therefore, every thing was held up to wait for him to arrive. Further, from the statement of PW-5, it appears that the report of the FIR was not received in the Court of ACJM till 06.12.2006. These circumstances do create a doubt about the FIR being in existence at the time it is purported to be.
Another aspect throwing doubt on the FIR being lodged at the specified time is that PW-3, the Investigating Officer, stated that he inspected the spot on 05.12.2006 i.e. next day.The time of inspection has not been disclosed. If inquest had been concluded by 23.55 hours on 4.12.2006, PW-3 could have easily visited the spot in the night itself especially when it is the prosecution case that there was electric light at the place of occurrence. The Investigating Officer could have collected/lifted blood-stained earth but there is no such effort. This also creates suspicion whether the FIR was lodged on 04.12.2006 at 22.30 PM. In addition to above, in Form No. 13 (Ex. Ka-5) the time of death is mentioned as 9.30 p.m. when there is no such time reflected in the FIR. Rather, the time of the incident mentioned in the FIR is 8.45 pm and looking to the seat of the injury sustained by the deceased, his death would have been instantaneous. This discrepancy also suggests a strong possibility of the FIR not being in existence at the time of inquest.
From the above noted facts, there appears a strong probability that the FIR of the present case was ante-timed.
30. There is another aspect of the matter. In the present case, Investigating Officer did not collect blood-stained or plain earth from the spot. He (PW-3) did not state a single word about it. The residents of the locality were also not examined by PW-3 or made witness to the charge-sheet. In his statement, PW-3 stated that although he made inquiry from them, but as they did not support the incident, therefore, he (PW-3) did not record their statements. In our view, PW-3 failed to perform his duty to conduct fair and impartial investigation. Even if residents of the locality did not support the incident, then also their statements ought to have been recorded. The duty of the Investigating Officer is to determine the truth and not to support the FIR version even if it is found false and incorrect. The Apex Court in Jamuna Chaudhary and others Vs. State of Bihar (1974) 3 SCC 774 observed as:-
"11. The duty of the Investigating Officers is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth. xxxxx"
Therefore, in our view, the investigating agency by making no effort to collect blood stained earth/plain earth from the spot and by not recording statement of residents of that locality have not only failed in its duty to test the veracity of the prosecution case but this has led us to be circumspect in accepting the testimony of the two prosecution witnesses.
31. Notably, PW-1 and PW-2 both are chance witnesses, therefore, we would have to scrutinize their testimony with reference to their explanation for their presence at the spot. The Apex Court in case of Jarnail Singh Vs State of Punjab (2009) 9 SCC 719 observed that testimony of a chance witness requires careful scrutiny and the chance witness must explain his presence at the place of occurrence.
At this stage, we may notice that the place where the incident is stated to have occurred is a public street/lane. The spot is not near or in close proximity of the house of either of the two eye witnesses and, admittedly, the two eye witnesses were not accompanying the deceased therefore, they can be taken as chance witnesses. According to PW-1 and PW-2 they were returning home from market when they witnessed the incident near the house of Surendra Jatav (not examined). Admittedly, they (PW-1 and PW-2) were not accompanying the each other too. PW-2, Deepak Nath Chaudhary, stated that he met PW-1 five minutes before the incident on way when he (PW-2) was returning to his house from the market. PW-2 stated that PW-1 was returning from Etawah after attending his duties. PW-2 admitted that there is direct road from the market to his house and if he had to return home from the market there is no need to use the lane where the incident occurred. Therefore, in our opinion, PW-2 failed to satisfactorily explain his presence at the spot and since he is a chance witness, we do not find his testimony reliable.
As far as PW-1 is concerned, he was doing a job in Etawah. In his testimony he did not state about returning after attending his durites. He only stated that he was on his way back home from the market. However, PW-2 stated that PW-1 was returning from Etawah. In his statement, PW-1 did not disclose his duty hours and the routine time of his return from Etawah. PW-1, though, denied the suggestion that he was called from Etawah next day to lodge the FIR but PW-1 did not specifically deny residing or staying in Etawah. However, since the defence did not give any suggestion in this regard, therefore, possibility that he (PW-1) stayed at Bharthana cannot be ruled out. But PW-1's testimony does not inspire our confidence as his presence appears doubtful for a number of reasons. Firstly, PW-1 stated that when he carried the deceased to hospital at Etawah in a Marshal Jeep his clothes were soaked in blood but, surprisingly, PW-3, the Investigating Officer, did not notice any blood on the clothes of PW-1 and, interestingly, neither blood-stained clothes were shown nor recovered. Secondly, if PW-1 took the body to police station where inquest proceedings were conducted PW-1 would have been a witness to it but he (PW-1) is not a witness of inquest report. All these circumstances render PW-1's presence at the spot highly doubtful and, therefore, it would be unsafe to rely on his testimony to record conviction.
32. Thus, from the discussion made above, we are of the considered view that prosecution has failed to prove the guilt of appellants beyond reasonable doubt and, therefore, we allow both the appeals and set aside the judgment and orders dated 27.11.2009 & 30.11.2009 passed by Special Judge (SC/ST Act), Etawah in S.T. No. 41 of 2007. Both the appellants are acquitted of all the charges for which they were tried. Appellant Shani (appellant of Criminal Appeal No. 8120 of 2009) is reported to be in jail he shall be released forthwith if not wanted in any other case, subject to compliance of provisions of Section 437-A Cr.P.C. to the satisfaction of the trial court concerned. Appellant Panchu (appellant of Criminal Appeal No. 7719 of 2009) is reported to be on bail. He need not to surrender and his sureties are hereby discharged, subject to compliance of provisions of Section 437-A Cr.P.C. to the satisfaction of the trial court concerned at the earliest.
33. Let a copy of this order/judgement and the original record of the lower court be transmitted to the trial court concerned forthwith for necessary information and compliance. The office is further directed to enter the judgement in compliance register maintained for the purpose of the Court.
Order Date :- 08.07.2022 AK Pandey