Allahabad High Court
State Of U.P. vs Sukhbir S/O Ramjo Lal And Ors. on 17 November, 2005
Author: M.C. Jain
Bench: M.C. Jain, Vinod Prasad
JUDGMENT M.C. Jain, J.
1. The State has preferred this appeal against the judgment and order dated 15.1.1982 passed by the II Additional Sessions Judge, Aligarh, acquitting twelve accused respondents, namely, (1) Sukhbir, (2) Ramji Lal, (3) Bhup Singh, (4) Babu Singh, (5) Harish Chand, (6) Mahendra, (7) Prem Pal, (8) Raghunandan, (9) Mahesh, (10) Jaipal, (11) Radhey Lal and (12) Rishi Pal of the offences under Sections 148, 452/149, 436/149, 307/149, 302/149 or 302 IPC.
2. The factual matrix may be set forth for proper appreciation of the case. The incident occurred on 25.8.1979 at about 7.30 PM in village Nagla Battisa of P.S. Sasni, District Aligarh. There were allegedly three other participants of the crime, namely, Udaivir Singh, Ashok and Narain Singh. Udaivir Singh was killed earlier to the submission of the charge sheet; Ashok remained absconder and Narain Singh died before framing of charges. The F.I.R. was lodged by Malkhan Singh, who claimed himself to be an eyewitness of the incident, on 26.8.1979 at 1 AM. His relation Ganpat Singh came at about 7.30 PM in the eventful evening from village Sikur and told him that Udaivir Singh accompanied by sufficient number of his associates was sitting at the culvert of the canal. He reached on the roof of his house with his gun alongwith his brothers, uncle etc. After a while, Udaivir Singh along with his associates came challenging, surrounded his house on the front side and set fire to the thatches of his house. Udaivir Singh and his companions also abused him and his family members. Earlier, on 15.10.1978 his father Ghamandi was shot dead by this gang and the trial was pending in the Court of sessions. The accused persons, therefore, were nursing enmity against him and his family and wanted to exterminate all his family members. He and other inmates of the house raised shouts attracting several villagers who reached on the roofs of their houses. He also opened fire with his licensed gun. The villagers and his family members started throwing brickbats from the roofs of their houses to counter the firing launched by Udaivir Singh and his associates (accused). He named 15 persons as accused as detailed above. As to the weapons of the accused respondents, Udaivir Singh, Ashok, Bhup Singh and Raghunandan allegedly had SBBL guns, Harish Chand had a Pharsa and rest were armed with countrymade pistols. When his aunt came out of the house and ran, Harish Chand accused gave a Pharsa blow on her skull whereby she was seriously injured. She was dragged by some of the accused. In the incident, bullet injuries were caused by the accused to Narain Singh son of Asha Ram, Bhuri Singh son of Bhikam Singh and Km. Mithlesh. On hearing their noise and gun firing, three constables happened to reach the spot who shouted aloud that they were police personnel. On hearing their declaration all the accused ran away towards the canal. The police constables chased the running assailants but in vain. The witnesses Lakshman, Narain, Prem Pal Singh and others had allegedly seen the assailants in the light of burning Chhappar. On the lodging of the F.I.R., a case was registered and investigation started as usual.
3. Kiran Devi was initially examined by Dr R.P. Sharma PW 6 on 26.8.1979 at 7.30 A.M. at P.H.C. Sasni. One incised wound 9 cm x 1 cm x bone deep on right side head, 12 cm above right ear was found on her person. Margins of wound were sharp and clean cut. She was semi conscious and injury was about 1/2 day old, having been caused by sharp edged weapon. It was kept under observation. She, however, succumbed to her injur in M.S. Hospital, Aligarh on 29.8.1979 at 7.05 P.M. Post mortem over her dead body was conducted on 30.8.1979 at 4 PM by Dr S.R.P. Mishra PW 5. She was aged about 40 years. A stitched wound corresponding to her head injury related above had been found on her person with fracture of underlying bones. That apart, there were some abrasions also on her dead body over left elbow, right forearm, left wrist, over front of neck, left pinna and right hand. The cause of death was coma due to head injury.
4. Injured Km. Mithlesh was also medically examined at P.H.C., Sasni on 26.8.1979 at 7.35 AM. Three lacerated wounds were found on her person which were of firing. There was no blackening in any of the wounds. Narain Singh was medically examined on 26.8.1979 at 7.40 AM. at P.H.C., Sasni by the same Dr R.P. Sharma PW 6. Two lacerated wounds caused by firing were found on his person but there was no blackening. .
5. At the trial, the prosecution examined three so-called witnesses, namely, informant, Malkhan Singh PW 2, Laxman Singh PW 3 and Bani Singh PW 4, besides two Doctors, Investigating Officer etc. To say shortly, the evidence other than that of eyewitnesses was more or less of formal nature.
6. A strange feature of the case is that the injured Narain Singh filed an affidavit paper no.282-B dated 3.10.1981 swearing that it was quite dark at the time of the incident; that much noise was caused due to firing made by the miscreants and Malkhan Singh informant; that he had received bullet injuries in that firing but because of darkness he could not notice as to who had given him the bullet injury. According to him, the miscreants had already escaped before the Chhappar was set blaze with raising flames producing adequate light. He could not recognise any of the miscreants and he did not know this either as to who had set the Chhappar afire.
7. The accused denied their complicity in their statements under Section 313 Cr.P.C. and pleaded that they were implicated due to party factions of the village.
8. We have heard Miss N.A. Moonis, learned A.G.A. from the side of the State and Sri G.S. Chaturvedi assisted by Sri Samit Gopal for the accused respondents. The record has been summoned which we have carefully perused.
9. The argument from the side of State is that the acquittal is based on faulty appreciation of evidence adduced by the prosecution consisting of as many as three eyewitnesses and it requires reappraisal by this appellate Court. According to her, the acquittal suffers from perversity. On the other hand, the Counsel for the accused respondents has supported the reasoning adopted by the trial judge in acquitting the accused respondents.
10. On going through the evidence on record and cross checking the findings of the trial judge therewith, we are of the opinion that the acquittal is justified being based on analytic and judicious appreciation of the evidence and attending circumstances. Several factors are lined up to back the acquittal, none of which could be displaced by the A.G.A. We propose to deal with them one by one.
11. At times, the motive satisfies the judicial mind about the authorship of a particular crime. In the present case, Ghamandi-father of Malkhan Singh was murdered on 15.10.1978 and nine accused were tried therefor. Excepting the accused Sukhbir, Harish Chand, Raghunandan and Jaipal, all others faced trial of the murder of Ghamandi. At the time of commission of the present offence, that tria was pending. Malkhan Singh informant PW 2 and his other relative witnesses, thus, had a direct motive to falsely implicate these accused persons. Conversely, these accused had no motive or ill-will to commit the murder of Kiran Devi in the present incident. She was not the target either as per the own case of the prosecution. The prosecution could also not show any common bond amongst the accused respondents.
12. Another factor to be taken note of is that besides the fatal incised wound on the head of Kiran Devi resulting in her death, certain abrasions were also found on her person as reported in her post mortem report. Of course, they do not find mention in her first medical examination report Ext. Ka-7 prepared by Dr R.P. Sharma PW 6. Though the said Doctor tried to explain that he did not examine the injuries covered by the clothes of this lady patient as he was a male Doctor, but the same might have escaped his attention which was focussed on the fatal injury sustained by the lady on the head. Of course, the explanation furnished by him is preposterous because while examining the injuries of young unmarried girl Mithlesh aged about 14 years, he examined her injuries which were on her thighs (in the neighbourhood of her private part). It was obvious that to cover up his carelessness in preparing the medical examination report of Kiran Devi, he camp up with absurd explanation which does not stand the test of judicial scrutiny the point of the matter is that the version of the, F.I.R. is that the accused respondent Harish Chand struck Pharsa blow on the head of Kiran Devi. There was no mention that she was dragged by any of the accused. As per the own case of the prosecution, none of the accused or assailants was carrying any Lathi. Then it went unexplained as to how Kiran Devi sustained a number of abrasions on her person. To cover it up, an "explanation was coined at the stage of adducing evidence in the Court that she had been dragged by the accused. None of the prosecution witnesses had initially stated to the Investigating Officer that she had been dragged also by the accused. The improvement at the evidence stage in the Court as to the alleged dragging of Kiran Devi by the accused was a desperate attempt to harmonise the ocular testimony with the medical evidence and with the contents of the post mortem report. The truthfulness of the alleged eyewitnesses was certainly adversely affected.
13. Further, as per the prosecution, four accused were armed with guns, ten had countrymade pistols and only Harish Chand accused had a Pharsa which he wielded to strike blow on Kiran Devi. Strangely, however, no firearm injury was caused to Kiran Devi. The other injured Mithlesh and Narain Singh Sustained injuries of few pellets attributed to the alleged firing resorted to by the accused. Taking together the injuries of the deceased and two injured they were wholly disproportionate to the manner of the incident in which as many as 14 accused allegedly made use of firearms. A careful scrutiny of the statement of Malkhan Singh PW 2 indicates that he was simply making a statement either relying on his imagination or hearsay. He stated in cross-examination that when he scribed the F.I.R., the witnesses were present there and other villagers were not present. According to him, he had written the report after enquiring from the witnesses as to who of the assailants had been recognised and the culprits as named by the witnesses were nominated by him in the F.I.R. It obviously leads to the conclusion that Malkhan Singh PW 2 himself did not recognise or identify any of the miscreants and he had no personal knowledge about the participation by the accused persons nominated in the F.I.R. His testimony, therefore, had no evidentiary value. He claimed himself to be an eyewitness without any basis. Inference was justifiable that he did not nominate the accused persons in the F.I.R. on the basis of his own knowledge.
14. The Investigating Officer Mahabir Singh, S.I. PW 8 did not find any remnants of burnt articles beneath the thatch which was allegedly set to fire. It belied the prosecution version that thatch was used for keeping domestic articles or for residential purpose. It was illogical that the miscreants themselves would have set the thatch ablaze to produce light which could facilitate in their recognition. If they meant to commit the crime as alleged by the prosecution by resorting to indiscriminate firing towards the inmates of the house of the complainant, there was hardly any necessity for them to set the thatch ablaze and to produce light. The trial judge rightly observed that the Chhappar was subsequently lit by prosecution side to create? light.
15. Laxman Singh PW 3, own uncle of Malkhan Singh PW 2, allegedly reached the roof with him. Malkhan Singh PW 2 allegedly fired from the roof whereas Laxman Singh countered the attack by throwing brickbats from the roof top. The third witness Bani Singh PW 4 had allegedly reached the roof of Than Singh wherefrom he resorted to brickbating. It went unexplained as to how the brickbats had been collected at the roofs in advance. The Investigating Officer did not collect any piece of brickbat from any of the roofs. Otherwise also, to counter shooting spree by brickbating was very risky and a great improbability. It was simply a cock and bull story tried to be propped up by the prosecution through artificial evidence of Malkhan Singh PW 2, Laxman Singh PW 3 and Bani Singh PW 4.
16. Ganpat Singh, the alleged relative of Malkhan Singh was not at all produced at the trial who had allegedly initially informed the complainant Malkhan Singh that Udaivir Singh accompanied by sufficient number of his companions was sitting at the culvert of the canal. In any case, he had not named any of the accused other than Udaivir. He did not tell him that the gang of Udaivir was armed with weapons. It came down from the cross-examination of Malkhan Singh PW 2 that subsequently Udaivir Singh had gone somewhere to commit dacoity and he was killed there. It indicates that Udaivir Singh was actually a dacoit and had no personal enmity against any of the prosecution witnesses or Kiran Devi.
17. The trial judge also rightly observed that no specific role was assigned to the accused excepting Harish Chand who had allegedly gave Pharsa blow on the skull of Kiran Devi and that complicity of other accused persons by means of general statements of the witnesses that they were armed with firearms and had reached at the house of the complainant where they resorted to indiscriminate firing would not he sufficient to prove their presence and participation.
18. Judging the evidence in right perspective, it appeared to be a case of an attempt to commit dacoity by a gang of dacoits who, however, could not accomplish their mission because of counter pressure created by the prosection witnesses. They had to retreat, simply fatally injuring Kiran Devi ami causing injuries to two others, namely, Mithlesh and Narain Singh. It may be stated as a passing reference at the risk of repetition that the injured Narain Singh even filed an affidavit swearing that it was dark at the time of incident; that much noise was caused due to firing made by the miscreants and Malkhan Singh informant and that he had received bullet injuries in that firing but he could not notice as to who had given the same to him and further that after the miscreants had left, fire was caused to the Chhappar to produce light.
19. The incident took place in village Battisa and as many as seven accused belonged to the same village. The evidence, however, that the miscreants had not concealed their identity, sounds to be improbable.
20. So, on threadbare analyses, we are in agreement with the findings of the trial judge, The view taken by him could only be the reasonable view on dispassionate scrutiny of the evidence.
21. We are, therefore, inclined to dismiss the appeal. Government Appeal is accordingly dismissed. Judgment be certified to the lower Court immediately.