Brij Kishore vs State Of U.P.
2012 Latest Caselaw 2850 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

					Judgment Reserved on:- 01-05-2012
 
					Judgment Delivered on:- 12-7-2012
 
							A.F.R.
 

 
Court No.2
 
District - Hardoi
 

 
Criminal Appeal No.2056 of 2007
 
Brij Kishore S/O Girja Shanker R/O Village Patras,
 
P.S.Pilhani,District Hardoi					Appellant (In Jail)
 
				Versus
 
1.State Of U.P							Respondents
 
2.Sri Rafeeq S/O Kunha R/O Village Mausampurva,
 
P.S.Pilhani, Disrtict Hardoi
 
		
 
And
 

 
Criminal Appeal No.2125 of 2007
 
Chandra Pal S/O Sohan Singh
 
 R/O Village Patras,
 
P.S.Pilhani,District Hardoi					Appellant (In Jail)
 
				Versus
 
1.State Of U.P							Respondents
 
2.Sri Rafeeq S/O Kunha R/O Village Mausampurva,
 
P.S.Pilhani, Disrtict Hardoi
 

 
And
 

 
Criminal Appeal No.2182 of 2007
 

 
1.Narendra Singh S/O/Anoop Singh
 
2.Son Pal S/O Balak Ram
 
Both R/O Village Patras,
 
P.S.Pilhani,District Hardoi					Appellants (In Jail)
 
				Versus
 
1.State Of U.P							Respondents
 
2.Sri Rafeeq S/O Kunha R/O Village Mausampurva,
 
P.S.Pilhani, Disrtict Hardoi
 

 
And
 

 
Criminal Appeal No.2447 of 2007
 

 
1.Mahesh S/O Tilak
 
2.Muneshwar S/O Govind 
 
Both R/O Village Patras,
 
P.S.Pilhani,District Hardoi					Appellant (In Jail)
 
				Versus
 
1.State Of U.P							Respondents
 
2.Sri Rafeeq S/O Kunha R/O Village Mausampurva,
 
P.S.Pilhani, Disrtict Hardoi
 
				
 
And
 
Criminal Appeal No.2472 of 2007
 

 
Uma Shanker S/O/Brij Lal R/O Village Patras,
 
P.S.Pilhani,District Hardoi					Appellant (In Jail)
 
				Versus
 
1.State Of U.P							Respondents
 
2.Sri Rafeeq S/O Kunha R/O Village Mausampurva,
 
P.S.Pilhani, Disrtict Hardoi
 

 
Counsel For Appellants:		Sri I.B.Singh Advocate
 
Counsel For Respondent No.2: 	Sri Farhan Alam Osmany
 
Counsel For U.P.State:-		Sri V.K.Srivastava, A.G.A -I
 

 
Hon'ble Imityaz Murtaza J.
 
Hon'ble Vishnu Chandra Gupta J.
 

 
(Delivered by  Hon,ble Vishnu Chandra Gupta J.)
 

 
					JUDGMENT

1. The aforementioned criminal appeals arise out of the same judgment and order of conviction and sentence hence these appeals are taken together and are being decided by a common judgment.

2. The challenge in these criminal appeals is conviction and sentence recorded in a judgment dated 24.08.2007 passed in Sessions Trial No.302 of 1999 by Amar Singh Chauhan, Additional District and Sessions Judge court No. 1, Hardoi, convicting each of the appellants of all the aforementioned appeals under section 147,302 read with section 149 IPC with one year R.I. and Life imprisonment with fine of Rs. 1000/- , respectively.

3. We have heard the learned Counsel for appellants ,Counsel for complainant , the respondent No.2 and the learned Additional Government Advocate and also perused the record of the lower court and of these appeals with the assistance and help of learned Counsel for the parties.

FACTS

4.A complaint has been filed in the Court of C.J.M.Hardoi by Rafeeq (PW-

1) against 10 persons for committing murder of his brother Madari and one Puttu alleging therein that about six months ago from the incident of murder Brij Kishore (Appellant in Cr. Appeal No.2065/2007) purchased a pregnant she buffalo from Madari for Rs. 8000/-. Later on after about a month Brij Kishore came to complainant's house and complained to his brother Madari about the death of she bufallo and asked to return money on the pretext that a sick she bufallo had been given to him. Madari refused to return the money and said that he gave him a healthy she buffalo. An altercation took place on this account in between Madari and Brij Kishore. About two months later from incident of this altercation Brij Kishore alongwith unknown boy came to the house of complainant and asked his brother Madari that a Punchayat about she-bofallo will be held in village Patras so your presence is necessary in Punchayat and he came to call him (Madari) for the Punchayat. Madari refused to go in Punchayat. Thereafter, Brij Kishor and unknown boy started hurling abuses to Madari. Madari also abused them. Thereafter both started struggling. The complainant and his younger brother pacified them. Brij Kishor after extending threats to life left the place.

5.On 17.02.1990 (might be 17.3.1990) at about 3.00 PM Madari and Puttu, while sitting in the field and grazing animals, the accused persons, namely, Brij Kishore(appellant in Criminal Appeal No. 2056), Narendra Singh and Son Pal (both appellants in Criminal Appeal No. 2182 of 2007), Chandra Pal ( appellant in Criminal Appeal No. 2125 of 2007), Mahesh and Muneshwar (both appellants in Criminal Appeal No. 2447 of 2007), Uma Shanker (appellant in Criminal Appeal No. 2472 of 2007 and Rajesh ( who had been acquitted by the trial Court), Vishwanath and Bodi (Both died during pendency of the trial) came there armed with Lathis. Brij Kishore exhorted Madari that he will not be spared today and shall be killed. Madari got up and ran away towards village Patras. All the accused persons chased and surrounded Madari and started assaulting with Lathis in the field. The complainant Rafeeq and Puttu ran over to the spot after making noise to rescue Madari. Puttu was also assaulted by the accused persons with Lathis. Puttu also tried to defend himself with the stick in his hand by which one or two accused persons may have got injuries. The complainant out of fear and to save his life stood at some distance from the place of occurrence and witnessed the incident. Puttu and Madari fell down on the spot on account of injuries sustained by them. Puttu was killed by putting and pressing the Lathi on his neck. Both Puttu and Madari succumbed to the injuries. In this process, accused persons managed their escape towards their village. This incident was also witnessed by Sadulla (PW-2), who was standing in his field.

6.After this incident the complainant came in his village and after informing about the incident to the villagers proceeded to Police Station Pihani and reached Police Station at about 8.00 PM. He found that all the aforesaid accused persons alongwith other villagers were present in the Police Station and were talking with the Sub-Inspector of Police Station Pihani. The complainant went to Senior Munsi of Police Station and requested him to lodged his report. Head Munsi told to the complainant that report will be lodged only after permission of the Sub-Inspector present in the police Station. The Head Munsi also threatened the complainant that if you will take any action in the matter you will also face the same consequences as your brother had faced. The complainant, thereafter in the morning, due to fear came back to his village and thereafter he came to Hardoi in the evening. He came to know at Hardoi that police personnel brought the dead bodies of his brothers Madari and Puttu to Hospital. After post mortem he took the dead body of his brother and went to his village and conducted last rites of his brother. On the next day, complainant came and met the District Magistrate and Superintendent of Police at Hardoi. He also came to know that accused persons in collusion with local police, after concealing the true facts, concocted the false story. Consequently, no action had been taken on his application. Thereafter, he lodged the complaint.

7.After recording the statement of complainant Rafeeq under sections 200 and of Sadulla and Dr. Dinesh Puri under section 202 Cr.P.C. the accused persons were summoned to face the trial and later on the Magistrate concerned committed the case to the Court of Sessions for trial of the accused persons .

8.During trial charges were framed against all the appellants and other co-accused of the case under sections 147, 302/149 I.P.C.. After denial of the charges by the accused, a trial has been proceeded, wherein complainant Rafeeq examined himself as PW.1 and Sadulla (PW.2) had also been examined as eye witness of the incident. Dr. Dinesh Puri had also been examined as PW.3 to prove the post-mortem examination reports of both the deceased. Thereafter, the prosecution closed its evidence.

9.In defence, the accused persons stated that Madari and Puttu were committing robbery. Brij Kishore and his companions were looted by both the deceased at about 7.30 PM and at that time on hue and cry Mudari and Puttu were surrounded by the villagers who beaten Madari and Puttu. The looted articles were also recovered from them. The First Information Report to this incident had been lodged in Police Station- Pihani on the same day by accused-appellant Brij Kishore.

10.From the perusal of the copy of F.I.R filed as Ext.- Kha-1 story emerged out as follows :-

11.That, on 17.3.1990 when appellant Brij Kishore was returning from Pelhani after taking medicine, Satya Narayan and Manoj of village Bijgawan were also with him and they were returning after giving examination. When he was coming bach to Patras, in the way at about 7.30 PM he reached near the field of Pratap Singh. All of sudden, two persons covering their faces came in front of them and stopped after showing country made pistol and asked them to hand over which ever things they have. Brij Kishore protested. Thereupon one miscreant hit on his head with Lathi. He fell down. Thereafter, both miscreants snatched watch and money of appellant Brij Kishore. His companion Narendra Singh and Chandra Pal coming from behind also reached on the spot after making noise. Thereafter, hearing shout and cries Umashanker S/O Brij Lal, Mahesh, Muneshwar, Rajesh, Naresh, Vishwanath Singh, Bodil Singh and many other people armed with Lathi and with torches in their hand came on the spot. Accused persons fired with country-made pistols but fire missed. The villagers after chasing them surrounded both the miscreants and villagers gave beatings with Lathi to both the miscreants. They were identified in the torch light as Madari Gaddi of village Mausampurwa and Puttu Gaddi of village Kusewari. Both died on the spot. After leaving the villagers on the spot near the dead body Brij Kishore went to the Police Station and informed the police about the incident and FIR has been lodged. Thereafter, police reached on the spot, prepared inquest and sent the dead bodies for post-mortem examination. After investigation, final report Exhibit-Kha-3 has been submitted in this case on account of death of both the accused persons. The injury report of Brij Kishore ,Exhibit Kha-2 was also filed.

12.The defence examined Bishambar Singh as DW.1, Aayodhya Singh as DW.2, Brij Kishore (accused) as DW.3, Chandra Pal(accused) as DW.4 and Rajesh Kumar Singh(accused) as DW.5 to show that accused Rajesh Kumar Singh was appearing in the examination of High School and he was invigilator in that examination. The certificate of Center Incharge was also proved as Exhibit Kha-4 by PW.5 (Rajesh Kumar Singh). Later on the defence closed its evidence.

13. After hearing the arguments and believing the evidence of prosecution all the appellants were convicted and sentenced as stated above.

14. Aggrieved by the aforesaid judgment and order convicting and sentencing the accused-appellants, all above mentioned appeals have been preferred.

Submissions by counsel for defence

15.It has been submitted from the side of the appellants that in this case the prosecution has not come with clean hands. The prosecution have concealed the fact of lodging of First Information Report about this incident. Though, complainant was fully aware that a case has been lodged in police station and post-mortem was got conducted by the police. In the complaint, complainant himself admitted that he took the dead body of Madari after post-mortem examination. It was further submitted that the prosecution witness Rafeeq and Sadulla, were not present on the spot. They concocted the false case after concealing the material facts and lodged this complaint. It has further been submitted that the final report had been filed by the Police in the case lodged on the information of Brij Kishore and the same was proved and exhibited as Ext.-Kha-3. The order accepting final report is a judicial order and same remained unchallenged and became final . In the light of the same, the prosecution story cannot be believed. It is further submitted that material evidence has not been brought on record from the side of the prosecution and rather, it has been willfully concealed and certain facts have been kept away from the Court , like preparation of the inquest in connection with F.I.R. lodged by Brij Kishor. The entire facts of this case were in the knowledge of the complainant, but neither the same have been brought before the court nor before summoning the accused persons for the trial in the court of magistrate, during inquiry. It was further submitted that while dealing with the case in hand the trial court has not discharged his divine functions to know the truth behind the back of the incident and failed to discharge duties as an impartial judge. It was the duty of the trial judge, if complainant failed to bring the facts relating to case of looting, to summon the papers himself to know the truth behind the whole episode. From a judge it is expected that during trial he should not be a mere spectator and to sit idle . He should take active participation during trial to dig out the truth from earth. Moreover, the story of defence is most probable and true facts have been brought before the court by which it is proved that appellants have not committed any crime.

16.It has been submitted by the learned counsel for the complainant that F.I.R. lodged by Brij Kishor about the incident indicates that some incident had taken place in between Brij Kishor and his companion on one side and Madari and Puttu on the other side. It is true that the time of incident of both cases are different but the simple reason that report has been lodged by another group or person can not be a ground for doubting the genuineness and correctness of version of prosecution. It is further submitted that final report submitted in this case is not based on investigation of facts, but only for the reason that accused of case under section 394/307 I.P.C. were dead. Therefore, there is no adverse impact of acceptance of final report on prosecution. It is important to mention here that accused persons who were examined in the court as witnesses have not sought any permission of the court before examining as a witness. It is mandatory requirement of the law and in absence thereof, the evidence of these witnesses cannot be taken into account and cannot be read against prosecution. It was further submitted that from mere perusal of the post-mortem report of Puttu it is established that he was done to death, because, the doctor, in his report, clearly mentioned that his death was occurred due to asphyxia as a result of strangulation which shows that the person actually killed Puttu and it is not a case of mere Marpit by the villagers and this fact makes the story of prosecution improbable. The defence story, therefore, fails.

Points for Consideration by Court

17. On the basis of submissions made from both sides, following points are necessary for consideration in this appeal :-

(I) Whether the prosecution case is based on concealment of material 			facts?  if so its effects ?
 
(II) Whether PW.1 and PW.2 are wholly reliable witnesses ?
 
(III)What would be the effect of production of accused persons as witness of 	defence without permission of the Court ?
 
(IV)Whether the defence of accused is probable and believable ? 
 

 

 
Point No.1
 
Whether the prosecution case is based on concealment of material facts?  if so its effects ?
 

18. It is the duty of prosecution to prove its case on the basis of evidence. While doing so every essential fact and circumstance necessary to arrive at the truth should be brought on record without suppressing or concealing any material fact. The parties to litigation are expected to facilitate the courts for doing complete justice between the parties. In Criminal trial prosecution plays an important role. Prime duty of prosecution is to bring the offender in the hands of law to punish him with appropriate punishment. But at the same time, it is the pious duty of the court to see that an innocent should not be punished and real culprits should not escape from law. The court if finds that any party suppressed or concealed any material fact necessary for just decision of the case, has ample power to summon, examine, re-examine, recall any witness of prosecution or person present , though not summoned, under section 311 Criminal Procedure Code (in short Cr.P.C.) in order to produce any document or thing from possession or power of any person under section 91 Cr.P.C.. These powers could not only be exercised during trial but also at any stage of inquiry or in any proceeding under Cr.P.C.

19. In Manu Sharma Vs. State (NCT of Delhi) (2010) 6 SCC 1 the Supreme Court described the duties of Public prosecutor and held that Public Prosecutor is a statutory officer of high regard. He does not represent investigating agencies but the State. He has wider set of duties than merely ensure that accused is punished,the duties of ensuring fair play in proceedings, all relevant facts are brought before the court in order to determination of truth and justice to all parties including the victims. These duties does not allow the prosecutor to be lax in any of his duties as against the accused. The Court must also ensure that prosecutor is doing his duties to utmost level of efficiency and fair play.

20. It has been further held in Manu Sharam's case (supra) that it is not necessary that entire evidence should not be disclosed to accused . Obligation to disclose is limited to evidence which prosecution proposes to rely. Even if an omission has been occurred that ipso facto does not vitiate proceedings unless non disclosure amounts to material irregularity and causes irreparable prejudice to accused.

21. In the aforesaid backdrop, we are examining the facts and circumstances of this case. In this peculiar case of death of Madari and Puttu, the deceased of this case, two version have been placed before the court, one by Rafeeq , (PW.1, the complainant of this case) and other from the side of the accused. It is not disputed that after death of both the deceased of this case namely Madari and Puttu, police prepared inquest upon the corpse of both the deceased and sent the same for post-mortem examination. It is well known that when an inquest is prepared of the dead body of any person it could be done only after receipt of information of the same and there is column in the inquest report to mention the time of information received about time of death. In this case, initially, PW.1 Rafeeq denied the knowledge of preparation of inquest upon the body of Madari and Puttu. But, later on he categorically admitted that inquest was prepared in his presence but he was not the signatory of inquest. The statement of PW.1, leaves no room to doubt that Rafeeq (PW.1) was aware that inquest was prepared by the police and at that time he was present but he did not disclose when both deceased died and who killed them nor Daroga preparing these inquest asked about incident from him nor he told about the incident on his own to Daroga. This witness categorically stated that when he reached to Police Station he found the accused persons and the villagers, who were gathering in the Police Station. He also stated that F.I.R. was not lodged and he was expelled from the Police Station and asked to go . It was also stated by him that he was threatened by the Head Constable that if he will lodge First Information Report of this incident he will also be subjected to the same treatment as his brother has undergone. He remained in the police Station through out the night and he was asked to go in the morning but by that time too his F.I.R was not lodged. If it was so and inquest was prepared in his presence he must have brought the same on the record of this case which was the first document prepared by the police in respect of the dead bodies found on the spot. The inquest prepared on the spot by the police was a material document containing material information about the incident and primary cause of death which in the circumstances narrated above has been suppressed by the prosecution and material fact mentioned therein has been concealed willfully. The non production of the same could not said to be a bonafide action of public prosecutor or of complainant and an adverse inference shall be drawn against the prosecution that if the same would have been produced the same would be against the prosecution. It further shows that the same has been suppressed with some oblique motive by the prosecution and by the complainant. It would not only seriously and adversely affect the prosecution story but shall also cause serious prejudice to the accused persons, and the impact of suppression and concealment of this very fact would be far reaching. This by itself is sufficient to create a serious doubt about the prosecution story.

22. It is also necessary to mention here that the trial court at trial stage should exercise powers vested in it . The Supreme Court in State of Rajasthan Vs. Ani (1997) 6 SCC 162 observed that criminal trial should not turn out to be bout or combat between two rival sides with the judge performing the role only of a spectator or even an umpire to pronounce who finally won the race. A Judge is expected to actively participate in the trial, elicit necessary material from the witness in the appropriate context which he feels necessary for reaching the correct conclusion. The failure to do so also helped in denial of fair trial of accused persons. The accused persons in defence too summoned the investigating officer of the case based on the F.I.R. lodged by one of the accused Brij Kishore on the same date at 11.30 PM in the police Station but insipte of that court failed to procure the attendance of investigation officer with case dairy of that case. However, it is established on record that the inquest has not been produced from the side of the prosecution and that the prosecution willfully suppressed the material information contained therein. Consequently, an adverse inference would be drawn against the prosecution that the same was suppressed willfully because it was against the prosecution and shall necessarily effect the prosecution case adversely.

Point No.2

Whether PW.1 and PW.2 are wholly reliable witnesses ?

23.To test the veracity and trustworthiness of witnesses it is necessary to scrutinize the evidence available on record. It is well settled principle of law that as gravity of the offence increases the scrutiny of evidence become tighter and tighter and more meticulous If the witness is straight-forward, bold and consistent during the course of his examination as witness and he is not concealing any material information from the court the evidence of such witness is found credible, reliable, trustworthy, admissible in accordance with law and corroborated by other witnesses or documentary evidence of prosecution and his presence cannot be doubted at the scene of occurrence. The evidence of such witness cannot be thrown out merely on the ground of relationship as held in Mano Dutt and another Vs. State of U.P.(2012) 4 SCC, 79 . In this background the evidence of witnesses ought to be examined.

24.Only two witnesses of facts have been produced from the side of the prosecution. One is the complainant Rafeeq (PW.1) and other is Saddula (PW.2).

25.So far as PW.1 (Rafeeq) is concerned , in view of the discussion made at point No. 1 he is found to be the guilty of suppression of material fact i.e. of preparation of inquest. This witness did not receive any injury ,though he stated that he and Puttu tried to save Madari. Puttu was assaulted by the accused person but this witness was spared. From the perusal of statement of Sadulla PW-2 it appears that he claimed himself at the time of incident at a distance of about 200 -250 paces away from the place of occurrence and Rafeeq was about a distance of 5-10 paces away from him. Sadulla also disclosed that Puttu was at a distance of 10-12 paces away from the place of occurrence. If it is so the statement of Rafeeq PW-1 could not be believed that he and Puttu reached on spot to save Madari. It is also worth notice that Madari was the real brother of Rafeeq PW-1 , but according to him to save his own life he kept him away from the place of occurrence but Puttu in the course of saving Madari lost his life. This conduct of the witness Rafeeq and situation found as above , the presence of Rafeeq at the place of occurrence could not be established by prosecution.

26.The counsel for the prosecution strongly relied upon the cause of death of Puttu. According to post-mortem examination report Puttu not only received lacerated wound and contusion all over body but also contusion of 10 cm X 2 cm in front of neck horizontally place at thyroid cartilage starting from right side of neck and extending left side of the neck till 3 cm from mid line. On the basis of this injury report, the doctor opined that Puttu died on account of asphyxia due to throttling. On the basis of same it has been submitted that Puttu has been murdered. In this regard our attention has been drawn towards statement of the witness to the effect that he has categorically stated that Brij Kishore, Narendra, Sompal and Chandrapal put the Lathi on the neck of deceased Puttu and killed him by pushing the same. In this regard the attention of this witness was drawn towards the complaint, in which this fact has not be mentioned. When explanation has been sought from the witness in this regard, he could not give any plausible explanation. It is true that in the statement recorded under section 200 and 202 Cr.P.C .this fact has been introduced.

27.From perusal of record it transpires that the statement under section 200 Cr.P.C. of Rafeeq has been recorded on 6th of April, 1990, i.e. after an interval of about 3 weeks from the date of incident and the statement under section 202 Cr.P.C. of Saddula was recorded after more than one month from the date of incident. In this regard, the statement of PW.1 is material , who categorically stated that on the next date of the incident he discussed with his lawyer about the post-mortem findings, the lawyer after seeing the post-mortem report told him that he was killed by putting the lathi on the neck so he mentioned in his complaint about the fact of killing by throttling. But, he did not name the accused persons at the time when the complaint was filed. He tried to explain this missing part by saying that later on, this fact has come to his memory as to who killed by throttling. These all show that the witnesses are improving the case stage by stage on the legal advise.

28.So far as the place of occurrence is concerned, in the complaint no definite place is mentioned and it is stated therein that when he and his brother Madari alongwith Puttu were grazing their cattle by sitting in the agricultural field, the accused armed with Lathies came. Brij , Kishsore exhorted and other assaulted to Madari, he by running towards Patrash tried to save his life . All the accused surrounded him and started assaulting with Lathies in the agricultural field. On his shouts and cries Rafeeq and Puttu rushed towards spot then accused persons also assaulted Puttu. Puttu tried to save himself with the stick in his hand, but Rafeeq out of fear went at some distance from the place of occurrence and witnessed the whole incident. It has further been stated that Puttu and Madari after injuries fell down and thereafter, accused persons killed Puttu by putting Lathi on his neck. During his deposition he did not fix any spot by describing the particular place.

29 In cross-examination he stated that he and Madari are R/O Village Mausampurva. He has further stated that village Patras is about 1 KM away from mettle road. PW.1 has categorically stated that he saw the dead body in the East of the road and also in the Police Station. He could not disclose as in whose agricultural field the dead bodies were lying. He has further stated that both dead bodies were in one agricultural field. PW.1 has further stated that he was grazing their cattle from 1 KM away in the west from village Mausampurva in the land of Gram Samaj. He did not mention in the complaint that he was grazing his cattle in his field. He also categorically stated that 1 KM from Mausampurva in the West his agricultural field of area 5 Bigha is situated in village Itara. Majra of Itara village is Mausampurva. From the aforesaid statement it appears that the occurrence taken place as per PW.1 at 1 km away from the village Mausam Purva in Village Itara. This witness has further admitted in his statement on oath that dead bodies were lying in the agricultural field of Ramsaran Bhuzi. This witness also states the location of Saddula in his statement and has stated that Sadulla was near him in his field towards East.

30.So far as Saddaulla is concerned, he has stated that he was in his agricultural field. He categorically stated that place of occurrence is about 50 paces away from his field. The complainant and the deceased were grazing their cattle at a distance of 25-30 paces from him. PW.2 categorically stated that incident took place in the land of Gram Samaj belonging to village Patrash. He also categorically stated that at the time of incident he was about 200 to 250 paces away from the place of occurrence. Rafeeq was 5 to 10 paces away from him but Puttu was about 10 to 12 paces away from the place of occurrence. It is also important to mention here that while conducting the cross-examination by the prosecution with DW.1 Bishambar Singh a suggestion has been made that incident took place in Mausampurva village, but DW.1 denied the suggestion.

31.On the basis of statement of prosecution witnesses the place of occurrence could not be fixed. According to PW.1 it was occurred in village Itara. According to PW.2 it was occurred in barren land of Gram Samaj belonging to village Patrash. The suggestion given by prosecution counsel to DW.1 that occurrence took place in village Mausampurva. However, PW.1 has categorically admitted that dead bodies were lying in the agricultural field of Ram Sharan Bhurji. It is important to mention here that according to the defence version the occurrence actually took place in the field of Ramsaran Bhurji. In view of aforesaid discussion it is clear that witness of the prosecution are not consistent about the place of occurrence and the place of occurrence could not be fixed as per statement of PW.1 and PW.2 on any common place. Though, PW.1 has categorically admitted that dead bodies were lying in the field of Ramsaran Bhurji, which is the place suggested by defence in his First Information Report and from other document available on record.

32.So far as the time of occurrence is concerned, prosecution stated at 3.00 pm on 17.3.1990. As per defence version the incident took place at 7.30 pm on same day. In this back ground the evidence of PW.1 and PW.2 have to be judged and tested. In First Information Report Rafeeq has categorically stated that after incident he reached the Police Station to inform the Police and to lodge the F.I.R. at about 8.00 PM. But, PW.1 has changed his version during statement recorded on oath and said that he reached police station in between 3.00 to 3.30PM . This shows that according to PW.1 he reached the Police Station within half an hours after the incident. If this statement is tested in the light of other part of the statement of this witness, the position will be entirely different. According to PW.1 after the incident he went back to village covering a distance of about 1 KM, informed the family members of Madari and Puttu but they did not come on spot, thereafter, he proceeded to Police Station. It is also very important to note that this witness stated that he remained present on the spot for about an hour. He also categorically stated that incident took place at a time of about 20 minutes. This witness also stated that distance of Police Station from the place of occurrence is about 5 km. If the time spent by PW.1 is counted, it would be impossible for PW-1 to reach Police Station in between 3 to 3.30 pm. PW.2 also categorically stated that incident took place at 3.00 PM. After incident he went to inform the villagers of Puttu and Madari. They all came alongwith Lathies and thereafter he and PW.1 (Rafeeq) proceeded to the Police Station where he remained about 20 minutes. This also shows that the story of informing the villagers of Madari and Puttu were not reconciling from the statement of PW.1 and PW.2. Even if the statement of PW.2 is taken to be correct, so far as, time factor is concerned, he also could not reach the Police Station by 3.30 pm specially when this witness categorically stated that incident continued for about half an hour. If the statement of both the witnesses are taken togather, make it clear that none of the witnesses reached Police Station in between 3.00 to 3.30 pm . The statement of both the witnesses are contradictory on material points and have been given to shape to the prosecution story as desired by PW.1 Rafeeq.

33. It is important to mention here that Rafeeq (PW.1) has categorically stated on his oath that he was present at the time of preparation of inquest. The time of occurrence and time of giving of information to the Police should have been mentioned in the inquest report. The inquest report has purposely been suppressed from the court and that suppression was only to shape of the prosecution version and to change the time of occurrence,. It is well settled that if there is a document the contents of the same could be proved by producing the same before the court and not by oral evidence. In view of the aforesaid facts and circumstances the prosecution has utterly failed to establish that the incident took place at 3.00 pm.

34.So far as motive of this incident is concerned, it was an alleged dispute of sale of she-bufallo by Madari to Brij Kishore. Before incident twice quarrel took place in between Madari and Brij Kishore. It was also alleged that Madari was given life threats by Brij Kishore. A Punchayat was also proposed to be taken place in village Patrash. But no information of these facts has been given to the Police or any authority before incident. It is also not brought on record that Madari is indulged in trade of cattle. No documentary evidence of transaction occurred in between Brij Kishore and Madari is available on record. A concocted story appears to have been cooked up and the same cannot be believed only on the basis of oral statement of the complainant and PW.2. Both PW.1,his deceased brother Madari and PW.2 are resident of the same village and are also of same caste. On the basis of discussion made above the prosecution witness Rafeeq and Saddaula cannot pass test of trustworthiness and truthfulness. The part of there evidence is not legally admissible in evidence as discussed above. Therefore, these witnesses of prosecution are not trustworthy witnesses and their evidence cannot be sufficient to uphold the conviction recorded against the appellants.

Point No.3

What would be the effect of production of accused persons as witness of defence without permission of the Court ?

35. In this case Brij Kishore (DW-3), Chandra Pal (DW-4) and Rajesh Kumar Singh (DW-5) were examined as defence witnesses. An objection has been raised by prosecution that their evidence cannot be considered for want of requisite prior permission from the court .

36. Section 315 of the Code says that any person accused of an offence before a criminal court shall be a competent witness for the defence and may give evidence on oath in disproof of charges made against him or any person charged together at the same trial provided that he shall not be called as a witness except on his own request in writing.

37. From the perusal of record of the trial court it is clear that the accused persons moved a written application on 3.7.2007 to examine the witnesses in defence including accused appellant Brij Kishore, Chandra Pal Singh and Rajesh. The application had been allowed vide order dated 7.7.2007 and all the witnesses were allowed to examine themselves as defence witnesses. Hence the requirement of section 315 Cr. P.C. has been complied with.

38. Consequently it is held that evidence of aforesaid witnesses of defence cannot be rejected on this ground.

Point No.4

Whether the defence taken by accused is probable and believable ?

39. In this case defence come with the case that Madari and Puttu were indulged in loot at about 7.30 PM on 17.3.1990 when Brij Kishore was coming back to his village alongwith two other namely Satyapal and Manoj. F.I.R. has also been lodged by Brij Kishore of this loot at 11.30 PM on the same day in the concerned Police Station. According to the F.I.R when Brij Kishore was coming back after taking medicine from Pehani alongwith Satyanarayan and Manoj of village Bijgawan,who were also returning after examination and when passing through the agricultural field towards village Patrash at about 7.30 pm near the agricultural field of Pratap Singh two persons covering their face armed with country made pistol imerged out and stopped them. They asked them to hand over the articles. Brij Kishore objected. One of the miscreants put Lathi blow on his head. He fell down. The miscreants snatched the watch and money from Satya Narayan. The complainant and his companion shouted . In the mean time, the appellant Narendra Singh and Chandrapal also reached on the spot, who was coming behind Brij Kishore and others. Uma Shankar, Mahesh, Muneshwar , Sompal, Rajesh, Awadh Naresh, Vishwanath Singh, Bodil Singh and other villagers rushed towards spot with torch and Lathi in their hand. They were also shouting. The miscreants were chased and assaulted. Thereafter, the miscreants fell in the field of Ramsaran Bhurji. Thereafter, villagers saw in the torch light that one of the miscreants was Madari Gaddi of Village Mausampurva and another was Puttu Gaddi of village Kusebari. Both these miscreants died on the spot on account of injuries sustained by them. After leaving the villagers near the dead bodies, Brij Kishore went to Police Station to lodge the F.I.R.. At 11.30 PM on 17.3.1990 the First Information Report was lodged after making necessary entries in general diary and the case was registered under section 394 and 307 I.P.C. against the deceased persons. Later on final report has been submitted in the matter on account of death of both the accused mentioned in the First Information Report.

40 To substantiate the story of defence the accused persons moved application for examination of witnesses including some of the accused persons on 3.7.2007. The application was allowed vide order dated 7.7.2007 wherein the I.O. Of this case, the doctor who examine the injuries of Brij Kishore and other witnesses of fact sought to be produced from the side of the defence, Bishambar Singh (DW.1), Ayodhya Singh (DW.2) and Brij Kishore (DW.3) were examined as witness of facts of this incident. Brij Kishore is one of the injured witness and victim of loot alongwith Satya Narayan and Manoj. From the evidence of DW.1 Bisambar Singh it also appears that Satya Narayan, the victim of loot, whose properties were looted and later on recovered from the possession of deceased, had died about 6-7 years before the date when Bishambar Singh was examined in the Court. He also stated that Manoj has gone to Punjab in connection with his service and he is residing there since last three years. In his cross examination this witness has stated that Puttu and Madari committed loot in village Patrash with Brij Kishore, Satyanarayan and Manoj. They snatched money and watch. This witness also reached on the spot after hearing shouts. The persons who were assaulting Puttu and Madari include Brij Kishore, Narendra Singh, Chandrapal, Uma Shankar, Mahesh, Muneshwar, Sompal and Rajesh. This witness has categorically denied that Madari and Puttu were not involved in looting at 7.30 PM and the incident took place at 3.30 pm. He also denied that incident was occurred in village Mausam Purva. He also denied that he is giving false evidence to save Brij Kishore and others. PW.2, in his cross-examination, has categorically stated that several persons were assaulting Madari and Puttu but he could not recognize as to who was assaulting Madari or Puttu. He could not see as to who assaulted Brij Kishore. This witness also denied that incident took place at 3.00 pm. Similar statement has been given by Brij Kishore whose presence could not be doubted on the spot being injured witness. All the witnesses categorically stated that near the dead body a country made pistol and Lathi were recovered. The looted articles were also recovered. He also denied that he and others committed murder of Puttu and Madari. Chandrapal (PW-4) stated on his oath that in Bhartiya Inter College, Pohawa, he was working as invigilator where he attended the examination of both meetings and thereafter deposit the copies. He produced the certificate of his duty as Ext. Kha-4 and also filed a news paper cutting showing that the incident was of loot. The witnesses denied the suggestion that Puttu and Madari were killed on account of enmity with Brij Kishore. DW.5 Rajesh Kumar, who was student of High School, on 17.3.1990 appeared in the examination and when he was returning, he found that crowd of more than 200 - 250 persons was gathered there and two miscreants were lying dead.

41. Witness Rajesh has been given benefit of doubt on the ground that he appeared in the examination of High School and on the date of incident he was appearing in the high school examination in second meeting between 3.00 PM to 6.00 PM. So he cannot be present at the alleged time of occurrence as suggested by prosecution.

42. Puttu has received as many as seven injuries, which are of contusion and lacerated wounds and Madari was also having eight lacerated wounds and contusion on the other parts of body. The number of injuries also substantiates the defence version. The defence has succeeded in proving its case on the preponderance of probability supported with documentary evidence in the form of F.I.R., injury report and the post-mortem report of the deceased persons. It cannot be said that the defence has come with false and concocted story. The defence version is the first version given in the Police Station about the incident which has been proved to be in the knowledge of prosecution witnesses, specially, Rafeeq. Therefore, possibility cannot be ruled out that Rafeeq has concocted a false case against the accused persons after suppressing and concealing the material facts from the court.

Conclusion

43. On the basis of discussion made on the aforesaid points, the only conclusion which may be arrived is that prosecution has failed to establish the guilt of accused appellants beyond all reasonable doubts and the findings arrived at by the trial Court and recording conviction thereon could not sustain and are liable to be set aside.

44. Consequently all the Criminal appeals being criminal appeal No.2056/2007 , Criminal appeal No.2182/2007 , Criminal appeal No.2125/2007, Criminal appeal No.2447/2007and Criminal appeal No.2472/2007are allowed.

45. The appellant Brij Kishore in Criminal Appeal No. 2056 of 2007, appellant Chandra Pal in Criminal Appeal No. 2125 of 2007, appellants Narendra Singh and Sonpal in Criminal Appeal No. 2182 of 2007, appellants Mahesh and Muneshwar in Criminal Appeal No. 2447 of 2007 and appellant Uma Shankar in Criminal Appeal No. 2472 of 2007 are hereby acquitted from the charges leveled against them under sections 147, 302 read with section 149 of Indian Penal Code. All the appellants are in Jail. If they are not wanted in any other case, they shall be released forthwith and their sureties are discharged. All the appellants are set on liberty.

46. Let copy of this judgment be placed in the appeals having Criminal Appeal No. 2182 of 2007, Criminal appeal No.2125 of 2007, Criminal appeal No. 2447 of 2007 and Criminal appeal No.2472 of 2007.

47. The Registry of this Court shall send the copy of this judgment to the learned Sessions Judge and Chief Judicial Magistrate, Hardoi for immediate compliance and to ensure the release of the appellants from Jail if they are not wanted in any other case.

Dated - 12.7.2012/S. Kumar.