Lal Bihari Yadav vs State
2012 Latest Caselaw 4459 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 33
 

 
Jail Appeal No. 6366 of 2008
 

 
Lal Bihari Yadav	(In jail)					    .........Appellant. 
 

 
					Vs. 
 
State of U.P. 							     ...Respondent. 
 

 

 
Hon'ble Rakesh Tiwari, J.

Hon'ble Anil Kumar Sharma, J.

(Delivered by Justice Anil Kumar Sharma)

Challenge in this jail appeal is to be judgment and order dated 09.05.2008 passed by Additional Sessions Judge (F.T.C.), Sonbhadra in Special Session Trial No. 30 of 2007 (Case Crime No. 55 of 2007: State of U.P. Vs. Lal Bihari Yadav), under section 302 IPC and section 3(2)(v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as the 'Act') Police Station- Kon, District Sonbhadra, whereby the appellant has been convicted under the aforesaid sections and has been sentenced to imprisonment for life under each section with fine of Rs.5,000/- and Rs.2,000/- respectively with default stipulation.

2. In nut-shell, the prosecution story as contained in the written report filed by complainant-Dharam Raj Gaud, son of Sri Saryu Gaud, R/O Village-Kachnarva Tola Khairvadagar, Police Station-Kon, District-Sonbhadra, at P.S. Kon is that he is a poor person and belongs to scheduled caste. On 1.4.2007, in the evening he was at his residence. His wife Smt. Sonmatiya Devi was returning from her parental village-Pipar Khad Tola Parsava and when at about 7.00 p.m. she reached near the field of Badri Yadav situated in Tola Bharnashili, accused Lal Bihari Yadav armed with Danda insulted and intimidated the deceased and started beating her. On her shrieks, the complainant, his brother Baij Nath Gaud, co-villager and several others rushed the spot and tried to save her, but the accused continued beating her. After sustaining fatal injuries, she fell down and died. The accused made his escape-good from the spot. It was further stated in the written report that on account of night he could not inform the police. He submitted the aforesaid report in police station-Kon at 6.20 a.m. on 2.4.2007. On the basis of this report, case at Crime no. 55 of 2007 under section 302 IPC and section 3(2)(v) of the Act, was registered, investigation whereof was entrusted to Circle Officer, Obra. The inquest on dead body of the deceased was conducted by Sub-Inspector V.B. Chaturvedi at the scene of occurrence on 2.4.2007 at 9.00 a. m. onwards. Along with usual papers, the cadaver of the deceased was sent for post mortem in sealed cover. Dr. U.P. Pandey, conducted post mortem on the dead body of the deceased at 3.00 p. m. He has found the following injuries on the person of 40 years old deceased:

Ante-mortem injuries:

1. Lacerated wound scalp 5 cm x 4 cm x 8 cm above left ear.

2. Lacerated wound below lower lip over chin 3 x 0.5 x 0.7 cm. Fracture mandible bone. Callused blood clots present.

3. Abraded contusion right cheek 6 cm x 3 cm from ear to right eye.

4. Contused swelling left cheek below eye 5 x 4 cm.

5. Multiple abrasion over anterior neck.

6. Abrasion right arm 1 cm x 0.5 cm 6 cm above elbow.

7. Contused swelling back left 10 cm x 6 cm transverse just below scapula.

8. Abrasion back of elbow left 2 x 3 cm.

9. Contused swelling left forearm 6 x 8 cm fracture of radius and ulna.

10.Multiple contusion and abrasion whole back and (sic) on pressing.

The doctor opined that the deceased suffered death due to head injury about 20-hours ago. Sri Girjesh Kumar, Circle Officer, Obra visiting the spot prepared site-plan and interrogated the witnesses. Sri V.B. Chaturvedi, took sample of plain and blood stained earth from the spot. The accused-Lal Bihari Yadav was apprehended by the villagers on 2.4.2007 and a written report to this effect scribed by Vinod Kumar was submitted at the police station and thereafter he was taken in custody by the police. Samples of earth along with apparels of the deceased were sent for analysis to Forensic Science Laboratory, Lucknow. The forensic laboratory found human blood on the clothes of the deceased but its origin could not be ascertained on account of disintegration.

3. After committal the case, charges punishable under section 302 IPC and section 3(2)(v) of the Act, were framed by the Sessions Judge, Sonbhadra on 9.8.2007. The accused abjured the guilt and claimed trial.

4. In order to prove the charges, the prosecution has examined the complainant-Dharam Raj, P.W. 1, Baij Nath, P.W. 2, Jawahar Gaud, P.W. 3, Dr. Umesh Prasad Pandey, P.W.4, C.O. Girjesh Kumar, P.W. 5, S.I. Vipin Bihari Chaturvedi, P.W. 6, Head Constable, Panna Lal, P.W. 7 and scribe of FIR, Vinod Kumar, P.W. 8.

5. In the statement under section 313 Cr.P.C., the accused has again denied the entire prosecution story. However, he has not adduced any evidence in his defence.

6. After hearing counsel for the parties, the Addl. Sessions Judge, vide judgement and order dated 9.5.2008 has convicted and sentenced the accused/appellant as stated earlier. Aggrieved accused has preferred this appeal from jail.

7. We have heard Sri K.M. Tripathi, counsel for the appellant and Sri Ram Yash Pandey, learned A.G.A. for the State, and perused the original record of the case carefully.

8. Learned counsel for the appellant has assailed the judgement of the trial court on the following grounds:

1. That there was no motive for the accused to commit murder of the deceased;

	2.	that the FIR is highly belated and the same has 			been prepared with the active assistance of the 			police;
 
	3.	that presence  of alleged eye-witness is highly 			improbable;	
 
	4.	that at the most, the case cannot  not travel beyond 		the scope of section 304-II IPC. 
 

 

9. Per contra, learned A.G.A. has submitted that the complainant could not lodge the FIR on account of night; that the case is based on direct evidence, so the motive is insignificant; that presence of eye-witnesses at the time of incident is probable and their testimony is clear, cogent and reliable, so the appeal is liable to be dismissed.

10. The alleged incident took place on 1.4.2007 at 7.00 P.M. The complainant claims that place of occurrence is quite near to his house and hearing cries of deceased, he along with his brother rushed at the spot and witnessed the incident. The written report was scribed by Vinod Kumar P.W. 8. Although, the complainant, P.W. 1, has stated in his examination-in-chief that on the next day in the morning he got report scribed from Vinod Kumar Jaiswal, after it was read over to him he put his signature and handed over the same at the police station-Kon at 6.00 A.M. In cross-examination the complainant has stated that Vinod, Ayodhya and Shivshanka Prakash met him in the night. Vinod, the scribe was also there. The sub-inspector arrived at the spot at 6 a.m. and then inquest was prepared. The accused was called there through constable. The application was scribed through Vinod there and accused Lal Bihari was sent to jail. The scribe, Vinod Kumar Jaiswal, P.W. 8 is not resident of the village of complainant. He resides in village-Neruwa Damar, P.S. Kon, District-Sonbhadra. He has stated in his cross-examination that wife of the complainant was killed by the accused-Lal Bihari Yadav, by beating with lathi and danda and she died on the spot. The next day, he prepared the report at the instance of Dharam Raj, which is Ex. Ka-1. However, in his cross-examination, this witness has stated that at 6.00 a.m. the Sub-Inspector arrived at Neruiya Damar Bus Stand and after seeing the dead body he dictated the report to him and thereafter he put his signature thereon. Not only this, he has further stated that he has written about 10 reports at the instance and saying of the police. The statement of scribe finds support from the testimony of P.W. 3, Jawahar Gaud. He has stated in his cross-examination that dead body of the deceased was kept at Neruiya Damar Bus Stand where Dharam Raj and Baij Nath were also present. It was 8.30 or 9.00 P.M. and 2- 2½ hours thereafter, the constable brought Lal Bihari Yadav. Vinod Kumar Jaiswal was also there and Sub-Inspector dictated the report to Vinod Kumar Jaiswal. Thus, the statement of the complainant stands falsified from the testimony of P.W. 3 and Vinod Kumar Jaiswal, P.W. 8 that written report was written by him at the instance of the complainant. The complainant is illiterate and rustic villager. The contents of the report are such that it cannot be said that written report was dictated by an illiterate person. This report finds ingredients of the Act and on the back of this report there are only three lines and the gap between the last two lines is more than a inch while on the front of the report, the gap between the lines is about 5 cm or less. Further, thumb impression of the complainant on front side of the report has been taken on the margin from regular ink pad, while on the back of it, it is above the name of the complainant. These facts clearly show that thumb impression of the complainant was obtained on a blank paper and it was prepared with the active help of police later on. As such, we find that the written report of incident is the result of concoction and fabrication at the instance of the police.

11. It is important to note here that although written report has been registered at the police station-Kon on 2.4.2007 at 6.20 A.M., but statements of witnesses show that the police was informed and it arrived the same night. Baij Nath, P.W. 2, who is real brother of the complainant and has also given eye-witnesses of incident, has stated in his cross-examination that the police has apprehended the accused in the night itself from the spot and at that time there were 10-12 police personnel. The incident was reported by village-pradhan through telephone to the police. Thus, it is established from the statement of the prosecution witnesses stated above, that written report was got prepared by the police through their professional scribe, P.W. 8, so no reliance can be placed on such report.

12. The Apex Court in the case of Marudanal Augusti v. State of Kerala, AIR 1980, SC- 638, has observed that the "entire fabric of the prosecution case would collapse if the F.I.R. is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence."

In view of law laid down by the Apex Court, if FIR is found fabricated, the foundation of prosecution case is demolished.

13. In the written report, no motive has been assigned to the accused for beating the deceased to death. Although, learned A.G.A. has argued that since the prosecution has relied upon the testimony of eye-witnesses, so the motive loses its importance. It is true that in the case of direct evidence, the motive becomes insignificant. However, the fact remains that no crime is committed without any motive. The eye-witnesses have stated in their deposition that while beating the accused he was intimidating the victim saying that he does not abide his wishes. None of them could state as to what were the requirements of the accused which were not being fulfilled by the deceased. Before the trial court the defence was that the accused is mentally retarded, but it could not be established. Vinod Kumar Jaiswal, P.W. 8, has stated that the accused was of disturbed mind and he used to roam around the village, but no medical examination of the accused alleged regarding mental retardness was got conducted or done by the Investigating Officer or by the trial court. This point has also not been argued before us by the appellant, so it is not necessary to go into its details. However, the fact remains that the prosecution has not been able to prove motive.

14. As regards, presence of eye-witnesses on the spot and their having been witnessed the incident is concerned, we have the testimony of P.W.1, to 3 on record. All these three witnesses are middle aged persons. P.W. 1, is about 55 years old, while P.W. 2 was aged 49 years and P.W. 3, has stated his age 45 years on 5.10.2007. The accused was only armed with a danda. These witnesses have stated that on hearing the cries of the deceased they reached at the spot and found the accused beating the deceased. She has sustained as many as 10 ante-mortem injuries. However, no one from the above witnesses could dare to save the victim or to apprehend the accused by over-powering him. The I.O. has not shown the house of the witnesses in the site-plan, which is Ex. Ka-3. Dharam Raj, P.W. 1, has stated that his house is situated at the distance of two and half bigha from the spot. This distance has been stated as 1 km. by P.W. 2. P.W. 3, Jawahar Gaud, has stated that his house is at the distance of 02 lattha from the house of Baij Nath, P.W. 2. The statements of these witnesses clearly show that house of these persons are not situated quite near to the place of incident because had it been so, the Investigating Officer would have certainly shown the same in the site-plan. Thus, the presence of these witnesses at the spot becomes doubtful. This conclusion is further strengthened by the fact that none of three witnesses could dare to snatch the danda from the accused or stop him from beating the deceased. All these persons were closely related with the deceased. Dharam Raj, P.W. 1, was her husband. It is strange that close relatives of the deceased could not have save her from the hands of accused who was not armed with any lethal weapon. None of these witnesses has sustained any injury. They have stated that they simply tried to stop the accused from beating the deceased by words. Had these persons were present at the spot and have witnessed the incident, they would have certainly apprehended the accused at the spot along with danda and in that process they might have sustained some injury. Thus, the presence of these persons i.e. P.W. 1 to 3 at the time of incident, and their conduct becomes doubtful.

15. The investigation of the case is also perfunctory. Although, it has been stated by SI V. B. Chaturvedi PW 6 that he prepared the inquest of cadaver of the deceased at the spot, but his testimony does not find any support from any other prosecution witness. Baij Nath, P.W. 2 has stated that Sub-Inspector reached at the spot in the evening itself and dead body was kept at Neruiya Damar Bus Stand. A constable was deputed there till next day morning. Similar is the statement of P.W. 3, who has stated in his cross-examination that dead body of the deceased was kept at Neruiya Damar Bus Stand. Vinod Kumar Jaiswal, P.W. 8, has also corroborated these witnesses on this point. He has stated in his cross-examination that Sub-Inspector reached at Neruiya Damar Bus Stand at 6.00 A.M. The Sub-Inspector dictated the report to him and obtained his signature, and his signatures were also obtained on the inquest. In view of categorical statement of these prosecution witnesses, the statement of P.W. 6 cannot be relied upon where he has stated that inquest was prepared at the spot. Thus, it is proved that the dead body of the deceased was removed from the spot during night and was kept at Neruiya Damar Bus stand and inquest proceedings were held at that place.

16. In view of the aforesaid discussion and reasons, our conclusions are;

1.That FIR of the case has been fabricated and is anti-timed besides being highly belated;

2.That the prosecution could not prove motive for the accused to eliminate the deceased;

3.That presence of P.W. 1 to 3 on the spot at the time of incident is not proved and their conduct is also not above board;

4.That the prosecution story is highly improbable and is full inconsistencies and infirmities;

5.That the inquest upon the dead body of the deceased was not prepared at the spot.

17. The inevitable result of the afore-stated conclusions is that conviction of the accused and sentence recorded by the trial court is unsustainable. The appeal succeeds and is accordingly allowed. The impugned judgement of the trial court is set aside and accused-Lal Bihari Yadav, is acquitted for the offence punishable under section 302 I.P.C. and section 3 (2) (v) of the Act. He is in jail. He should be released forthwith, if not required in any other case.

18. The office is directed to transmit a copy of this judgement to the trial court immediately for compliance which should be reported within fortnight.

..........................Rakesh Tiwari, J

..................Anil Kumar Sharma, J

Dated: September 25, 2012

RCT/-