Allahabad High Court
Shiv Kesh vs State Of U.P. on 19 April, 2017
Bench: Bharat Bhushan, Shailendra Kumar Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Case :- CRIMINAL APPEAL No. - 3520 of 2005 Appellant :- Shiv Kesh Respondent :- State Of U.P. Counsel for Appellant :- Shrawan Kumar Mishra,A.K.Shukla,A.R.Dwivedi,M.P. Yadav,P.K. Dubey,S. Niranjan,T.K.Tripathi Counsel for Respondent :- Govt. Advocate With Case :- CRIMINAL APPEAL No. - 2964 of 2005 Appellant :- Rajjan Respondent :- State Of U.P. Counsel for Appellant :- Dharam Pal Singh,P.K. Dubey,S. Niranjan Counsel for Respondent :- Govt. Advocate Hon'ble Bharat Bhushan,J.
Hon'ble Shailendra Kumar Agrawal,J.
(Delivered by Hon. Bharat Bhushan,J.)
1. These two connected appeals stem from the same impugned judgment dated 8.7.2005 passed in S.T. No.286 of 2004 arising out of Crime No.273 of 2004 (State Vs. Shivkesh and others) under Section 302 of Indian Penal Code (IPC), Police Station (P.S.) Ghatampur, district Kanpur Dehat whereby appellants Shiv Kesh and Rajjan were convicted under Section 302 IPC and Section 302 read with Section 34 IPC respectively. Both appellants were sentenced to life imprisonment along with fine of Rs.5000/- each with default stipulation. Both appeals have been heard together and are being decided by common judgment.
2. The prosecution story in brief is that Harish Chandra (deceased) cousin brother of informant Shiv Singh Yadav (P.W.1) was sleeping in his house in the night of 3/4.7.2004. Suddenly at about 1 am. in the night deceased Harish Chandra raised alarm whereupon informant and other neighbors woke up and rushed towards the place of occurrence flashing battery torches. They saw that appellant Shiv Kesh and his two unknown companions were stabbing Harish Chandra (deceased) with a knife, while co-appellant and father-in-law of Shiv Kesh, namely, Rajjan was holding deceased Harish Chandra. As soon as the witnesses approached the place of occurrence, assailants fled from the spot. It is claimed that the incident was witnessed by P.W. 1 Shiv Singh Yadav (informant), P.W. 2 Gomti (mother of deceased) and some other persons.
3. The prosecution has claimed that there was sufficient light of battery torches and there was enough moon light as well. P.W. 1 Shiv Singh Yadav (informant) dictated the FIR to one Meer Singh scribe which was later on lodged at P.S. Ghatampur under Section 307 IPC at 03.05 am. (Ext. Ka-1) at night. i.e. almost within two hours of the incident. The police personnel sent injured Harish Chandra for treatment to the Primary Health Centre (PHC), Ghatampur through constable Girendra Singh with Chitthi Mazrubi. P.W. 9 Dr. Dinesh Singh examined the injured Harish Chandra and found following injuries on his person:
1. Incised wound 4 CM x 1cm x Scalp deep present on right side of scalp 3 CM above from right ear.
2. Incised wound 5cm x 0.5cm x scalp deep present on right side of scalp 1cm above from right ear.
3. Incised wound 3 cm x 0.5cm x scalp deep on right side of scalp 10 cm above from right ear.
4. Incised wound 2cm x 0.5cm x muscle deep right side of neck 4 cm away from right ear.
5. Incised wound 1.5 cm x 1.0 cm x muscle deep present on right side of face just above angle of mandible.
6. Incised wound 1.5 cm x 0.5 cm x muscle deep present on right side of face 5 cm away from right angle of mouth Adv. xray.
7. Incised wound 2 cm x 1cm x bone deep in front of neck just above sternum, adv. xray.
8. Incised wound 1.5cm x 0.5cm x muscle deep present on right side of chest 1 cm below from injury no. 7
9. Incised wound 6 cm x 0.5 cm x muscle deep present on dorsum of right forearm 6cm below from right elbow.
10. Incised wound 1.5 cm 1.0 cm x muscle deep on the lateral aspect of right upper arm 7 cm below from right shoulder joint.
4. P.W. 9 Dr. Dinesh Singh referred the injured to Kanpur hospital. The medical report prepared by P.W. 9 is available on record as Ext. Ka-17. The reference made by P.W. 9 Dr. Dinesh Singh has also been proved as Ext. Ka-18.
5. Initially the investigation was taken over by P.W.6 I.O. Ugra Singh Yadav who claims to have recorded the statements of constable Gyan Sagar, P.W. 1 Shiv Singh Yadav and injured Harish Chandra immediately. The injured was taken to Kanpur for treatment but he succumbed to injuries at about 6 am. on 4.7.2004 at Madhuraj Nursing Home. This information was furnished to P.S. Ghatampur which was recorded in concerned general diary (GD). Thereafter PW 6 I.O. Ugra Singh Yadav along with constable Urffuddin reached LLR hospital Kanpur where the corpse of deceased Harish Chandra was lying in the precincts of mortuary. Inquest proceedings were initiated at 9:30 am and finished by 10:30 am. Inquest report is available on record as Ext. Ka-5.
6. The cadaver was sent for postmortem through constable Girendra Singh and constable Urffuddin. The autopsy was conducted by P.W. 7 Dr. O.N. Trivedi on the same day i.e. 4.7.2004 at about 1:30 pm. Dr. O.N. Trivedi stated that all the injuries had been caused by sharp edged weapon probably by knife. P.W. 7 Dr. O.N. Trivedi found following antemortem injuries (Ext. Ka-14) on the person of deceased:-
1. Stitched wound 8 cm. long along with three stitches present on the right side of scalp above from right ear.
2. Incised wound 4 cm.x.25 cm.x muscle deep present on the right side of scalp 1 cm. above from injury no. 1.
3. Stitched wound 2 cm. long along with one stitch present 1 cm above from injury no. 2.
4. Incised wound 2cm.x1cm.x bone deep on the right side of face 2 cm. below from right ear.
5. Stitched wound 1 cm. long along with one stitch on the right side of mandible 4 cm. away from the angle of mandible.
6. Stitched wound 3 cm. long along with one stitch on the right side of chest just below from right collarbone.
7. Stitched wound 2 cm. long along with one stitch 1 cm. below from injury no. 6.
8. Incised wound 2 cm.x.5 cm.x muscle deep on the front part of the right shoulder.
9. Incised wound 2 cm.x1 cm.x muscle deep on the right arm 7 cm. below from right shoulder.
10. Incised wound .5 cm.x.25 cm. x skin deep on the back side of right forearm 3 cm. below from elbow.
11. Incised wound 5 cm.x.5 cm.x muscle deep on the back side of right forearm 3 cm. below from injury no. 10.
12. Incised wound .5 cm. x.25 cm.x skin deep 4 cm. below from injury no. 11
13. Incised wound 3 cm.x 1 cm.x bone deep on the right side of neck 4 cm. away from right side of face.
14. Incised wound 5 cm.x2 cm.x left side of face below from left eye, bone of maxilla and nose was cut.
15. Incised wound .5 cm.x.25 cm. left side of mandible.
16. Stitched wound 2 cm. long along with one stitch on the side of left neck 6 cm. below from left side of mandible.
17. Incised wound 1 cm.x.5 cm.x muscle deep on the upper side of left shoulder.
18. Stitched wound 3 cm. long along with one stitch on the back side of left shoulder.
7. Meanwhile constable Gyan Sagar (PW-5) of P.S. Ghatampur converted the case from 307 IPC to 302 IPC after receiving information of death of injured Harish Chandra from constable Girendra Singh. Chik FIR (Ext. Ka-2) was carved out.
8. The extract of both G.D.'s, (i) regarding registration of criminal case under Section 307 IPC and thereafter conversion of case under Section 302 IPC are available on record as Ext. Ka-3 and Ka-4 respectively. Investigation, thereafter was taken over by P.W. 8 Tejpal Singh the then Station House Officer (SHO) Ghatampur on 6.7.2004. It appears that a police remand of appellant Shiv Kesh was obtained on 12.7.2004 and one knife was allegedly recovered at the instance of appellant Shiv Kesh from his residence, though in the instant case, no order has been passed under Section 25 of Arms Act. After completing investigation, P.W. 8 Tejpal Singh (I.O.) submitted charge sheet (Ext. Ka-15) against both appellants.
9. The trial judge framed charges against both Shiv Kesh and Rajjan under Section 302 IPC on 23.2.2005. Both appellants denied the charges and claimed to be tried.
10. The prosecution has adduced evidence of as many as 9 witnesses in order to prove its case. The informant P.W.1 Shiv Singh Yadav (eye witness), P.W. 2 Smt. Gomti (mother of deceased), P.W. 3 Ravi Tiwari (inquest witness), P.W. 4 Dinesh (eye witness), P.W. 5 constable Gyan Sagar (recorded FIR), P.W.6 I.O. Ugra Singh Yadav (first I.O.), P.W. 7 Dr. O.N. Trivedi (conducted autopsy), P.W. 8 Tejpal Sigh (Second I.O.) and P.W. 9 Dr. Dinesh Singh (conducted initial medical examination) have testified on behalf of prosecution.
11. The statements of appellants were recorded under Section 313 Cr.P.C. wherein they denied all allegations and claimed false implication on account of previous enmity.
12. A written statement was also submitted on behalf of appellant Shiv Kesh claiming that deceased Harish Chandra was of bad character who had developed illicit relationship with the wife of one Vishambhar S/o Raghuveer and thereby infuriated Vishambhar and his family members. Another claim was made that appellant Shiv Kesh used to take agricultural land of P.W. 1 Shiv Singh Yadav on crop-sharing basis and that few days prior to this incident appellant refused to take the land of complainant resulting in antagonistic relationship with him.
13. A claim was also made that P.W.6 Ugra Singh Yadav (first I.O.) was related to complainant Shiv Singh Yadav (P.W. 1) and some altercation had taken place between I.O. Ugra Singh Yadav and appellants and; that I.O. Ugra Singh Yadav had in fact threatened them to implicate in some case. A claim was made that I.O. Ugra Singh Yadav is the nephew of P.W. 2 Gomti, mother of deceased.
14. The another claim was made that few days prior to this incident, P.W. 4 Dinesh Singh was beaten by appellant Shiv Kesh which has also resulted in antagonistic relationship between rival parties.
15. Appellants did not adduce any evidence in defence. On conclusion of trial the Additional Sessions Judge, Kanpur Dehat was convinced of prosecution evidence, therefore, held both appellants Shiv Kesh and Rajjan guilty of offence under Section 302 and 302 read with 34 IPC respectively and sentenced them for life imprisonment with a fine of Rs.5,000/- each vide impugned judgment and order dated 8.7.2005. This judgment is under challenge before this Court.
16. Heard Sri D.P. Singh, Senior Advocate assisted by Sri Yash Niranjan Advocate for appellant Rajjan and Sri M.P. Yadav Advocate for appellant Shiv Kesh and Sri Ajit Ray learned A.G.A. for State.
17. Learned counsel for appellants have submitted that prosecution evidence is not trustworthy; that FIR was ante timed; that only partisan witnesses have testified on behalf of prosecution despite claim of presence of hundreds of independent witnesses; that the presence of eye witnesses on the spot is highly doubtful. It is also claimed that appellant Rajjan was not a local resident. He belonged to district Fatehpur.
18. Counsel for the appellants have further claimed that all stated incriminating circumstances were not put to appellants under Section 313 Cr.P.C. The provision of Section 157 Cr.P.C. was violated. The alleged recovery of knife at the instance of appellant Shiv Kesh has not been proved. It is claimed that name of P.W. 4 Dinesh Singh surfaced suddenly. He was not named witness in FIR nor his presence was shown in the testimony of P.W. 1 Shiv Singh Yadav and P.W. 2 Smt. Gomti (mother of deceased).
19. Submission is that appellants did not have any strong motive to kill deceased Harish Chandra. There were minor disputes which were not sufficient to give any motive for murder of deceased Harish Chandra.
20. On the contrary Sri Ajit Ray, learned A.G.A. has pointed out that minor discrepancies merely confirm that witnesses were not tutored and that minor discrepancies by themselves would not render prosecution evidence unreliable.
21. Learned A.G.A. has argued that the incident occurred at the dead of night at about 1 pm. in village Rar, P.S. Ghatampur while F.IR was lodged within two hours i.e. at 3:05 am at P.S. Ghatampur which was located at the distance of 12 kms. from the place of occurrence. The argument was raised that even the autopsy was conducted expeditiously by 1:30 pm. on the same day. The learned A.G.A. has submitted that there is no evidence on record to demonstrate that P.W. 6 Ugra Singh Yadav, the first I.O. was in any manner related to complainant side except the bald written statement filed on behalf of appellant Shiv Kesh. It was argued that the allegations of bias have to be proved by trustworthy evidence. The learned A.G.A. has also drawn the attention towards the statement of P.W. 6 Ugra Singh Yadav wherein it was said that the statement of deceased Harish Chandra was recorded by him at the gate of police station. Submission is that this statement of deceased should be treated as dying declaration as deceased died within few hours after this statement.
22. Before appraisal of prosecution evidence in detail, it would be appropriate to refer to the evidence of individual witnesses in brief. P.W. 1 Shiv Singh Yadav is informant as well as eye witness of the incident. He has stated that on the date of incident i.e. on 3/4.7.2004 he was sleeping in his residence which was situated at the distance of 20-25 paces from the residence of deceased Harish Chandra. The informant claims to have heard commotion or the alarm allegedly raised by deceased Harish Chandra sometime around 1 am. in the night. Several village folks heard the cry of deceased and rushed towards the place of occurrence flashing battery torches. When P.W. 1 reached the place of occurrence he found that appellant Rajjan had caught deceased Harish Chandra while appellant Shiv Kesh was stabbing Harish Chandra repeatedly. This incident was also seen by P.W. 2 Gomti (mother of deceased), Ram Singh etc. As witnesses arrived on the spot, accused persons fled away from there. FIR was scribed by one Amar Singh Yadav on the dictation of P.W. 1 Shiv Singh Yadav which was lodged at the P.S. Ghatampur. This report is available on record as Ext. Ka-1.
23. This witness has testified that several persons had arrived on the spot in the wake of alarm raised by deceased Harish Chandra. He has specifically asserted that appellant Rajjan did not assault deceased Harish Chandra. He has stated that there was sufficient light of moon as well as of flashlight used by deceased Harish Chandra. The witnesses were also flashing battery torches.
24. P.W. 2 Gomti is mother of deceased Harish Chandra. She too has supported the contentions of P.W. 1 Shiv Singh Yadav (Informant) claiming that she saw the stabbing of his son Harish Chandra at the hand of appellant Shiv Kesh while appellant Rajjan was holding deceased. This witness has also stated that two other unknown or unidentifiable persons were also present. However no definite role was assigned to these unknown persons except indicating their presence.
25. P.W. 4 Dinesh Singh has also supported the prosecution case. This 9-10 years boy was not tested by Sessions Judge before administering oath to him. His competence was not appraised by the Trial Judge. This witness was not even named in FIR. In addition to that P.W. 1 Shiv Singh Yadav (informant) and P.W. 2 Gomti (mother of deceased) did not name Dinesh Singh as eye witness in their own testimonies. This witness has stated that several persons of village had arrived on the spot and; that appellant Shiv Kesh was stabbing deceased Harish Chandra and this incident was witnessed by large number of persons. He has also said that Harish Chandra was murdered on the roof of his house. Half of the corpse was found lying on the roof of Harish Chandra and remaining half of the cadaver was found on the roof of Amrit Lal a neighbour. Apparently the roof of deceased Harish Chandra and his neighbour Amrit Lal are adjacent with no space between them. This fact is evident even from the site plan (Ext. Ka-11). P.W. 3 Ravi Tiwari is a formal witness of inquest. P.W. 5 constable Gyan Sagar recorded the FIR and thereafter converted the case from Section 307 IPC to Section 302 IPC.
26. P.W. 6 Ugra Singh Yadav was the first I.O. of the case who conducted initial investigation but later on handed over the investigation to P.W. 8 inspector Tej Pal Singh on 6.7.2004. P.W. 9 Dr. Dinesh Singh conducted initial medical examination of deceased Harish Chandra on 4.7.2004 at about 3:25 am and P.W. 7 Dr. O.N. Trivedi conducted autopsy subsequent to the death of Harish Chandra. P.W. 8 Tej Pal Singh the then S.H.O. Ghatampur was the second I.O. who finally charge sheeted the appellants on conclusion of investigation.
27. Prosecution case entirely depends on the eye witness account rendered by three witnesses, namely, P.W. 1 Shiv Singh Yadav,(complainant), P.W. 2 Gomti (mother of deceased) and P.W. 4 Dinesh Singh (10 years old brother of deceased Harish Chandra). All three of them have claimed that they were sleeping in their respective places between the night of 3/4.7.2004 at about 1 am. All of them were awakened at the sudden cries of deceased Harish Chandra. They went to the place of occurrence and saw that four persons, namely, appellants Shiv Kesh, Rajjan and two unknown persons had gathered at the place of occurrence. Rajjan, father-in-law of appellant Shiv Kesh was holding deceased Harish Chandra and co-appellant Shiv Kesh was stabbing the deceased. These three witnesses with minor variations have stated the same story.
28. The evidence of P.W. 9 Dr. Dinesh Singh who claimed to have examined the deceased at 3:25 am. in the same night found as many as 10 incised wounds on the person of deceased Harish Chandra while P.W. 7 Dr. O.N. Trivedi conducted the autopsy on the same day at about 1:30 pm. and found 18 injuries including few stitched wounds which obviously were result of the treatment prior to his death. It is alleged that deceased was first stabbed by assailants then he was taken to P.S. Ghatampur on tractor and the police personnel not only recorded the FIR but sent the deceased for treatment to C.H.C. Ghatampur with Chitthi Majroobi. Deceased Harish Chandra was medically examined by P.W.9 Dr. Dinesh Singh. Later on he was referred to Kanpur Hospital but Harish Chandra succumbed to his injuries at 6 am. in Madhuraj Hospital. This information was communicated by constable Girendra Singh on telephone to P.S. Ghatampur whereupon the case was converted from 307 IPC to 302 IPC (Ext. Ka-4).
29. FIR (Ext. Ka-1) contains a very brief narration of the events. This FIR was lodged by P.W. 1 Shiv Singh Yadav (cousin of deceased Harish Chandra) who was sleeping in his separate house located at some distance. Site Plan (Ext. Ka-11) indicates that the house of P.W. 1 Shiv Singh Yadav is situated after the residence of Amrit Lal and two Kachcha village roads. P.W. 1 Shiv Singh Yadav has described the distance and said that his house is located at 20-25 paces away from the place of occurrence.
30. However, the FIR (Ext. Ka-1) does not specify the place of occurrence. It merely says that the complainant and other village folks heard the cries of the deceased whereupon they rushed towards the place of occurrence and then witnessed the assault being committed by appellant Shiv Kesh, his father-in-law Rajjan and two unknown persons. Interestingly P.W. 1 Shiv Singh Yadav has not specified the place of occurrence even in his testimony, though he did say that he had specified place of occurrence in his first information report but FIR does not contain any specific place of occurrence.
31. If prosecution story and evidence is taken into consideration in its entirety then it would reveal that deceased Harish Chandra was living in a separate house situated into admittedly dense locality. Deceased Harish Chandra was allegedly sleeping on his roof. There was no permanent and constructed staircase for approaching the roof. The evidence indicates that the deceased used to use one wooden staircase for going upto roof. This movable wooden staircase was only possible way to reach the roof. The evidence has indicated that the wooden and movable stairs used to be placed throughout the night. But these stairs were placed inside the house. Site plan (Ext. Ka-11) has indicated the place of this wooden and movable stairs with word 'S'. Site plan also indicates that P.W. 2, Gomti (mother of deceased) and Km. Goldi, sister of deceased were sleeping near the staircase.
32. Interestingly, Ram Singh, father of deceased was sleeping on the roof besides his son. Deceased Harish Chandra was sleeping on the roof of Amrit Lal which was adjacent to the roof of deceased himself. It appears that the roof of deceased Harish Chandra and roof of Amrit Lal are adjoining with no space and perhaps even any physical demarcation between them. Site plan (Ext. Ka-11) and the essence of oral evidence would indicate that both deceased Harish Chandra and his father were sleeping almost side by side. Interestingly, Ram Singh (father of deceased) has not been produced as witness in this case. Charge sheet (Ext. Ka-15) nominates only two persons, namely, P.W. 1 Shiv Singh Yadav (cousin of deceased) and P.W. 2 Gomti (mother of deceased) as witnesses of fact. It is stated that one Geeta is said to have seen running away of appellant but she has also not been produced in evidence. None of these three persons produced by the prosecution as eye witnesses were present at the time of attack. P.W. 1 Shiv Singh Yadav was sleeping in his separate home located at some distance while P.W. 2 Gomti (mother of deceased) and P.W. 4 Dinesh Singh (brother of deceased) were sleeping on the ground floor.
33. It is pertinent to point out that prosecution has not given any information regarding arrival or manner of arrival of appellants. Prosecution case is that assailants suddenly appeared on the roof top, stabbed the deceased Harish Chandra and thereafter jumped on the bricks lying below the roof of Amrit Lal and ran away.
34. There is no doubt that deceased Harish Chandra died on account of several incised wound, subsequently found on his person. This fact has been established first by P.W. 9 Dr. Dinesh Singh who initially examined the injured Harish Chandra and later on by the report of postmortem and evidence of P.W.7 Dr. O.N.Trivedi who conducted the autopsy. These two medical reports and the testimony of both doctors have established that death of deceased Harish Chandra was result of homicide.
35. The question arises that who committed this homicide? Prosecution says that appellant Shiv Kesh, Rajjan and his two unknown companions committed assault on deceased Harish Chandra while he was sleeping on roof of Amrit Lal in the night of 3/4.7.2004. The fact that deceased was sleeping on roof and was subsequently stabbed on this very roof has not been mentioned in FIR (Ext. Ka1). Interestingly, even the testimony of P.W. 1 Shiv Singh Yadav (complainant) does not describe the roof as a place of occurrence. He merely says that he heard the commotion at about 1 am. in the night which awakened him and several neighbours. All of them went to place of occurrence flashing their torches whereupon the assailants ran away from the spot. There is no claim that the incident occurred on the roof or that they reached the roof for witnessing the incident. The story is that deceased Harish Chandra was flashing a battery torch while assailants were stabbing him. Witnesses were also flashing the battery torches. These battery torches and moon light made it possible for them to identify the assailants. But a careful perusal of testimony of P.W. 1 Shiv Singh Yadav (complainant) indicates several significant discrepancies especially between his testimony and the contents of the FIR (Ext. Ka-1). This man who came from a different house located at some distance has depicted the entire events as if everything happened in his presence despite the fact that initially his claim was that as soon as he reached the place of occurrence, assailants fled from the place of occurrence. But in later part of his testimony, he narrated the entire story in great details. In fact he introduced several facts not found in the FIR.
36. P.W. 1 Shiv Singh Yadav (complainant) has stated that following things were recorded in the FIR by him:
(i) He has stated that he had specified the place of occurrence in FIR but FIR does not contain the specification of place of occurrence.
(ii) He claimed that the name of Ram Singh, father of deceased was mentioned in the FIR but unfortunately this fact is missing from the FIR.
(iii) He stated that he had specified that the incident was seen in the light of moon and this fact was specifically mentioned in the FIR but this fact is also missing from the FIR.
(iv) He further claims that the fact that deceased Harish Chandra was holding a battery torch, was also recorded in the FIR and he had seen incident in the light of his torch and the torch held by deceased Harish Chandra but this fact is also absent in the FIR.
(v) He claims to have mentioned the fact that appellant Rajjan was holding deceased Harish Chandra while he was being stabbed but this fact is also not available in the FIR.
(vi) He further says that appellant Rajjan did not stab deceased Harish Chandra and this fact was recorded in the FIR and communicated to I.O. but again this fact is also missing from the FIR.
(vii) It is stated by him that incident was witnessed by Ram Singh, father of deceased and this fact was specifically mentioned by him in FIR, however this fact is missing from FIR.
37. Law is now well settled. The FIR cannot be treated as encyclopedia. Every facts need not be mentioned in the FIR. Therefore, the lack of source of law and another details per se will not taint or vitiate FIR but the fact of the matter is that P.W. 1 Shiv Singh Yadav has specifically stated that these facts were mentioned in FIR yet these facts are missing from FIR. These are not merely some omissions. The prosecution has completely failed to explain these discrepancies. These assertions of P.W.1 Shiv Singh Yadav have dented his credibility. This witness who admittedly was not living and sleeping with deceased Harish Chandra has given quite a detailed narration of the incident. Initially he said that as soon as he along with other neighbours reached the place of occurrence, assailants ran away from the spot. Subsequently he changed the track and made following assertions:-
^^tks&2 vU; yksx Fks mudks eSa ugh igpku ik;k FkkA D;ksafd ge ekjus okyksa ls nwj FksA bl fy;s ugha igpku ik;s FksA esjs igqWpus ds igys ;g nksuksa Hkkx ugh x;s Fks nwj [kM+s FksA eSaus vius fiNys c;ku fnukafdr 6-4-05 esa ;g ckr Mj ds dkj.k dgh FkhA fd ^^ge yksxksa dks vkrk ns[kdj eqyfte Hkkx x;sA**
38. This is significant discrepancy. The claim that both assailants were standing at little distance is surprising and unbelievable. There was no place at the distance. First the neighbour, P.W. 1 Shiv Singh Yadav and other village folks had to reach the roof top using wooden, temporary and movable stairs. Complainant Shiv Singh Yadav has said that around 50 people came besides him. He claims that first he saw the assailants from the distance of 15-20 hath (hand). This assertion is not borne out the evidence. The incident did not occur at the ground floor. Prosecution says that the incident and assault took place on the roof. Site plan (Ext. Ka-11) indicates that a Jamun tree would block the sighting of the deceased Harish Chandra.
39. A careful examination of the site plan would indicate that deceased Harish Chandra was sleeping on the roof of Amrit Lal. The only person who could have witnessed the full incident was his father Ram Singh who has not been produced by prosecution at all. We do not believe that these fifty village folks including P.W. 1 Shiv Singh Yadav could have witnessed the incident in the dead of night at 1:00 am. in complete detail from ground floor and identified them especially in the light of the fact that a Jamun tree was actually blocking the visibility. Stated light generated by torch of P.W. 1 Shiv Singh Yadav or from the torch allegedly held by deceased Harish Chandra would not enable the identification of assailants. We do not believe the story of flashing of torch by deceased Harish Chandra. In any case, the stated torch allegedly held by deceased Harish Chandra was admittedly neither recovered from the spot nor produced before the trial.
40. Prosecution story is that victim was being attacked by four persons. One person was using force to immobilize him and another person was repeatedly stabbing him. In fact several incised wounds were found later on person of deceased. We do not believe that deceased Harish Chandra despite being victim of gruesome and vicious assault was flashing battery torch so as to enable the identification of assailants. His relatives and neighbours arrived on the ground floor. We do not believe that 50-60 persons would have simultaneously used the wooden and movable stairs to reach the roof top in a jiffy. In any case, the number of such persons is not specific. P.W. 1 Shiv Singh Yadav has said that almost fifty persons arrived on the spot while P.W. 2 Gomti (mother of deceased) has claimed that almost 100-200 people arrived on the spot and all of them reached the roof. P.W. 4, Dinesh, the third eye witness has talked of mere 20-25 persons. But one thing is common in the testimony of all three eye witnesses that everyone who arrived on the spot went on to roof but whether the assailants kept on waiting for the arrival of these witnesses is a pertinent question?
41. Ordinarily, arrival of such a large number of people on the roof would make the assailants flee from the spot. The question is whether such a large number of people can in fact congregate on the roof top? P.W. 4 Dinesh Singh has specifically asserted that the roof on which his brother was sleeping was merely 5-6 hath (hand) in length and width. We don't think that it would have been possible for such a large number of people to gather on the roof top quickly in order to identify the assailants. The silence of Ram Singh, father of deceased who was sleeping besides his son is strange, surprising and certainly detrimental to the prosecution case. We do believe that prosecution has a right to choose its witnesses but holding back the only natural eye witness does create doubt about the intention of prosecution.
42. Counsel for appellants have claimed that FIR was ante timed. Meaning thereby that it was lodged at very late stage while shown to have been lodged at 3 pm. Chik report indicates that incident occurred at 1 pm. in the night and FIR was lodged at 03:05 am. in the same night i.e. within two hours of the incident at P.S. Ghatampur which was located 12 kms away from the place of occurrence. P.W. 9 Dr. Dinesh Singh says that he had examined Harish Chandra at 3:25 am. in CHC Ghatampur. The extract of general diary(G.D.) (Ext. Ka-3) indicates that deceased was taken to P.S. Ghatampur on tractor and he was accompanied by PW 1 Shiv Singh Yadav, PW 2 Gomti, Shiv Karan Singh and Devi Deen etc. This extract of G.D. talks of recording of FIR and handing over Chitthi Majroobi to constable Girendra Singh for examination and treatment of deceased Harish Chandra. This fact has been admitted by P.W. 9 Dr. Dinesh Singh. Surprising thing is that P.W. 9 Dr. Dinesh Singh has admitted that Chitthi Majroobi did not contain crime number and details of offences. The question is if FIR was in existence at the time of carving out of Chitthi Majroobi then it would have been natural for Chitthi Majroobi to contain these details. But crime number was absent from it which creates doubt about the existence of FIR till then. This fact is also supported by the testimony of P.W. 1 Shiv Singh Yadav. It is pertinent to point out that FIR was dictated to one Amar Singh. Initially PW 1 Shiv Singh Yadav has stated that FIR was scribed by one Amar Singh and thereafter this written report was handed over to P.S. Ghatampur. This was recorded and relevant entries in G.D. etc. were made. But during cross examination P.W. 1 Shiv Singh Yadav made a significant change. The relevant portion of his testimony is reproduced below:-
^^vej flag ;kno esjs lkFk Fkkus x;s FksA ftu njksxk th us esjk c;ku fy;k Fkk og Fkkus ij feys Fks njksxk th dks lkjh ckrsa muds iwNus ij crk nh FkhA rc njksxk th us eq>ls dgk Fkk fd rgjhj fy[kk dj ykvksA fQj ogh geus vej flag ;kno ls rgjhj fy[kkbZ rFkk njksxk th dks ns fn;kA njksxk th mlh rgjhj dks fy;s gq;s 'kke 4 cts xkWao vk;s esjs HkkbZ dh e`R;q gks pqdh FkhA fQj njksxk th ds lkFk eSa Fkkus ij ugha x;k FkkA njksxk th us esjs HkkbZ dh ekSds ij gh e`R;q dh lwpuk dh fjiksVZ yh FkhA ;g lwpuk dh fjiksVZ Hkh vej flag ;kno dh fy[kh Fkh rFkk eSus nLr[kr fd;k FkkA**
43. A careful perusal of the aforesaid testimony would reveal that initially the complainant went to P.S. Ghatampur with Amar Singh Yadav where the entire story was communicated to concerned Sub Inspector. He asked them to write a report and then scribe Amar Singh Yadav wrote the FIR which was subsequently handed over to Sub Inspector later on. At one place in the same paragraph complainant has stated that report was handed over to Sub Inspector at the place of occurrence. Simultaneously he has stated that Sub Inspector arrived in his village at 4 pm. Cumulative effect of these two admissions would be that FIR was handed over to Sub Inspector in the evening after 4 pm. This will also explain the absence of crime number and details of offences in the Chitthi Majroobi. There is no other way this dichotomy can be explained. This will also explain the assertion of P.W. 2 Gomti in her cross examination that she took her injured son directly to Ghatampur Hospital and thereafter took the injured to Kanpur for treatment on a reference of Ghatampur Hospital. PW 2 Gomti has not talked of concerned police station in between. In fact she has specifically stated in her testimony that her statement was taken by Sub Inspector after four days of the incident.
44. A little bit of extra information would be pertinent at this stage. The appellants have claimed that the first I.O. P.W. 6 Ugra Singh Yadav was related to deceased Harish Chandra. An allegation has been levelled by the appellants that P.W. 6 I.O. Ugra Singh Yadav was not only related to deceased Harish Chandra but also had inimical relationship with appellants and he had in fact threatened appellants to implicate them in some false case. There is no direct evidence to support this claim of appellants. But certain facts are staring from face of record. P.W. 1 Shiv Singh Yadav has denied the claim of any relationship with PW 6 I.O. Ugra Singh Yadav. P.W. 2 Gomti (mother of deceased) has admitted that I.O. Ugra Singh Yadav is her nephew. If that is so PW 6 I.O. Ugra Singh Yadav should have recused himself from this investigation.
45. But even the contents of his testimony is detrimental to the prosecution. P.W. 6 I.O. Ugra Singh Yadav has claimed that he took the statements of P.W. 2 Gomti and Krishna Dhobi etc. on the day the cadaver of deceased was handed over for postmortem i.e. 4/7/04 but P.W. 2 Gomti has denied it. She has claimed that her statement was recorded on the fourth day of incident, meaning thereby that events and evidence have been manufactured. It creates doubt about the claim that FIR was recorded at 3 am. in the morning. We believe that there is very serious possibility that FIR was ante timed. Creation of evidence as against its collection and ante timing of FIR is certainly detrimental to the prosecution case. We believe that entire process of investigation is tainted and vitiated.
46. We believe the testimony of P.W. 2 Gomti is not trustworthy on several counts. She has claimed following things during her deposition:-
^^ftl edku esa eSa ysVh Fkh mlh edku dh Nr ij esjk yM+dk ysVk FkkA eSa uhps ysVh FkhA ?kVuk okyh jkr esjs yM+ds us 10 cts [kkuk [kk;k FkkA [kkuk [kkus ds ckn og lh/kk Nr ij lksus ds fy;s pyk x;k FkkA mlds ,d ?k.Vs ds ckn eSaus vius yM+ds dh fpYykus dh vkokt lquh FkhA tc yM+dk cpko cpko fpYyk;k rks eSa Hkh fpYykbZ rc xk¡o ds 100&200 yksx vk x;sA lc yksx Åij Nr ij p<+s lkFk lkFk ge Hkh p<+sA tgka esjk yM+dk ysVk Fkk ogk¡ Åij tkus ds fy;s pkSM+k thuk gSA ftl ij 2&3 vkneh lkFk es p<+ ldrs gSaA xk¡o okys vk/kk feuV esa bdV~Bk gks x;s FksA eSa ?kM+h ugh tkurhA xk¡o okys esjs ?kj ij ,d?kaVk :ds FksA ml ,d ?kaVs rd eqyfteku esjs yM+ds dks cjkcj ekjrs jgsA aa-----------
esjs diM+ksa esa esjs yM+ds dk [kwu yx x;k Fkk og [kwu okys diM+s njksxk th us ys fy;s FksA njksxk th us esjk Fkkus esa c;ku ugh fy;k FkkA njksxk th us esjk c;ku ?kVuk ds 4 fnu ckn fy;k FkkA**
47. She claims that her son took dinner in the night of about 10 pm. contrary to the assertion of P.W. 4 Dinesh. She further claims that within one hour she heard the cries of her son which brought 100-200 people on the spot. All of them reached roof top together which was not possible in view of the small area of roof indicated by P.W. 4 Dinesh. She has also claimed that assailants kept on assaulting her son for almost an hour. These are minor discrepancies which may not be significant independently but cumulatively their effect is certainly adverse to the prosecution case. This witness has made assertion that her house had a very broad stair case and all of them took the broad stairs together to reach the roof top. She claims that two or three people could use these stairs simultaneously. We believe that this rustic woman could stray little bit but a claim and description of stairs indicate a desire to some how implicate appellants in the case and not the willingness to reveal only truth.
48. Both PW 1 Shiv Singh Yadav and PW 2 Gomti have claimed that their cloths were stained with blood while dealing with injured Harish Chandra. The cot and the bedding were also soaked in the blood. All these blood stained cloths were seen by I.O. Ugra Singh Yadav but these cloths were not taken into possession by I.O. Ugra Singh Yadav nor produced during course of trial. P.W. 1 Shiv Singh Yadav has admitted that these cloths were not taken into possession by I.O. Ugra Singh Yadav. But P.W.2 Gomti has said that her blood stained cloths were taken by I.O. and yet these cloths were not produced by the I.O. during trial. In fact he has not mentioned these blood stained cloths even in his testimony.
49. Another eye witness is P.W. 4 Dinesh who is younger brother of deceased Harish Chandra. The testimony of this 10 years old boy was recorded almost after 1 years of the incident. Meaning thereby that he was 9 years old at the time of incident. The name of this witness is neither shown in the FIR nor in the extract of G.D. (Ext. Ka-3). Interestingly, P.W.1 Shiv Singh Yadav and P.W. 2 Gomti have also not mentioned the presence of this boy in their testimony. Unfortunately, the learned Trial Judge did not test the competence of this witness. The first examination-in- chief was conducted and thereafter cross-examination was completed. The position of evidence given by child witness is somewhat different from the position of the evidence of other formal witnesses. Ordinarily, all persons are deemed to competent to testify unless the court considers that they are prevented from understanding the questions put to them because of tenderness of their age. The court has to determine whether a child witness is capable of understanding the questions and capable of giving rational answers or not. The court cannot do so unless court resorts to some preliminary examination of child witness before witness is actually put into witness box to give evidence. It is also desirable that Trial Judge should preserve the record of such preliminary examination of the child witness. The competence of child witness to testify his credibility and evaluation of his testimony is an intricate question. This is true that Section 118 of Indian Evidence Act contemplates no disqualification against the understanding of child witness. However, it is also true that unless the competence is tested by the Trial Judge, he/she would not be in a position to ascertain the capability of child witness to understand the question.
50. The evidence of child witness cannot be rejected per se but the court as a rule of prudence is required to consider such an evidence with close scrutiny. In this instance neither the competence of this child witness was evaluated nor any attempt was made to carefully and closely scrutinize the evidence of this witness. Especially the trial court should have done it in the light of the fact that name of this witness did not find place in FIR as well as in the testimony of two other eye witnesses.
51. We have carefully examined the testimony of P.W. 4 Dinesh. He claims that his deceased brother Harish Chandra was done to death by appellants. The half of cadaver was lying on his roof while half of the body was lying on the roof of Amrit Lal. This fact has been mentioned only by P.W. 4 Dinesh. He claims to have accompanied his cousin Shiv Singh Yadav (P.W. 1) to the Ghatampur police station but G.D. (Ext. Ka-3) does not indicate his presence at all. He claims that his statement was recorded by S.I. within ten minutes at police station which was simply not possible. He claims that police personnel arrived at 7 am. in the morning at place of occurrence. This does not find support from the evidence of P.W. 6 S.I. Ugra Singh who was busy in inquest proceedings at mortuary in Kanpur. He says that only 20-25 people have arrived on the spot while his mother Gomti claims that 100- 200 people arrived on the spot. P.W. 4 Dinesh claimed that he conveyed the presence of his mother, uncle, sister and cousin on the roof top to I.O. but I.O. has not mentioned this fact. P.W. 6 S.I. Ugra Singh has refused to support his various contentions and has denied his several assertions. These discrepancies are fatal and cannot be ignored. We do believe that eye witness account of P.W. 4 Dinesh was later on invented in order to lend strength to the prosecution case. The discrepancies between the eye witness account of various witnesses reveal that prosecution has not come up with the correct and truthful version of events. We do believe that genesis of the case is certainly different from that advanced by the prosecution.
52. Prosecution has alleged that statement of injured Harish Chandra was taken prior to his death by S.I. Ugra Singh. S.I. Ugra Singh has also mentioned this fact in his testimony. If we carefully peruse the chronological stages of story advanced by prosecution, it would reveal that this statement was allegedly recorded by I.O. after 3 am. Deceased Harish Chandra died within three hours. Obviously this statement, if any, becomes dying declaration but surprisingly this statement or stated dying declaration has not been placed before the court. It has not been proved by prosecution as well. We believe that the absence of this stated statement creates doubt about the genesis and the credibility of prosecution case. The fact that Amrit Lal on whose roof the murder allegedly took place or Ram Singh (father of deceased) who was only natural eye witness of the incident right from the beginning have not been produced in evidence is certainly fatal to the prosecution.
53. The prosecution has also claimed that a knife was also recovered at the instance of appellant Shiv Kesh. It is said that appellant Shiv Kesh probably surrendered before the trial court on 12.07.2004. A police remand was taken and later on a blood stained knife was allegedly recovered at his instance from his own house. Unfortunately, this recovery has not been proved by prosecution. In fact the recovery officer continued to investigate the case as well. No public witnesses were taken during this stated recovery. Admittedly the police personnel raided the residence of appellant several times prior to this recovery and yet nothing was recovered earlier. But after the arrest of appellant Shiv Kesh, the knife was allegedly recovered from his residence and no witness of vicinity was taken by police during this alleged recovery. We do not believe this story of recovery. In any case the report of forensic lab (Ext. Ka-16) is available on record. The report indicates that forensic lab could not ascertain the origin of any blood on this knife. Therefore, there is no evidence on record to demonstrate that the source of stated blood spots of this knife was of human blood.
54. We also believe that the chik report was received by the Chief Judicial Magistrate on 13.7.2004 after considerable delay. The office of Circle Officer from P.S. Ghatampur was only one furlong away yet even Circle Officer was given report with delay. These are minor weaknesses but coupled with the significant weaknesses earlier pointed out, even these minor discrepancies and weaknesses have vitiated the entire prosecution case. No flashlights allegedly held by deceased Harish Chandra were recovered. Flashlight stated to have been used by witnesses, were not collected by the I.O. Blood stained cloth of P.W. 2 Gomti, other witnesses and blood stained bedding etc. were also not taken into possession by the I.O.
55. We believe that genesis of prosecution story is shrouded in the mystery. We also believe that prosecution has not come up with clean hands. In this case an attempt to manufacture and invent the evidence is palpable.
56. For aforesaid reasons, we believe that appellants are entitled of benefit of doubt. We accordingly, set aside the impugned judgment dated 8.7.2005 passed in S.T. No.286 of 2004 arising out of Crime No.273 of 2004 (State Vs. Shivkesh and others) under Section 302 of Indian Penal Code (IPC), Police Station Ghatampur, district Kanpur Dehat. The appeal is allowed. The appellants Shiv Kesh and Rajjan are acquitted of the charge by giving them benefit of doubt. Appellants, if in jail be set at liberty immediately unless their detention is required in connection with any other case.
57. Let a copy of this order be certified to concerned court through Sessions Judge, Kanpur Dehat within a fortnight for compliance. The court concerned shall report the compliance within a month thereafter.
Order Date :- 19.04.2017 Meenu