Drig Pal Singh (In Jail) vs State Of U.P.
2013 Latest Caselaw 1071 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 

 
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD,
 
LUCKNOW BENCH, LUCKNOW.
 

 
*****
 

 
Criminal Appeal No. 1170 of 2007
 

 
	     Drigpal Singh (In Jail)		......		Appellant
 

 
       Vs.
 

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

 
Appearance:
 
	
 
	For the Appellant  : In person, Mr. Manish Bajpai (Amicus Curiae) 
 
					     
 
	For the Respondent : Government Advocate
 

 

 
Hon'ble Shiva Kirti Singh, Chief Justice
 
Hon'ble Devendra Kumar Arora, J.

(Delivered by Hon'ble Shiva Kirti Singh, C.J.)

This is a criminal appeal preferred by the appellant from Jail directed against judgment and order dated 07.07.2005 passed by learned Additional District and Sessions Judge, Court No.5, Hardoi in Sessions Trial No. 619/2004. By that judgment, the appellant, charged under Section 302 IPC for committing murder of his wife Geeta at about 3.00 a.m. in the night between 21 and 22nd March, 2004, has been convicted for the said offence and punished with life imprisonment as well as a fine of Rs. 10,000/-. For default in payment of fine, he has been ordered to undergo further rigorous imprisonment for one year.

2. The earliest version of the alleged occurrence is contained in the written report (Ext. Ka. 01) dated 22.03.2004 lodged by informant Ashish Kumar (P.W.1) before the Officer Incharge Kotwali, Town Hardoi. The allegations are to the effect that informant's sister Smt. Geeta, aged about 36 years, was married with the appellant Drigpal Singh about 14-16 years earlier. The appellant worked with a contractor at Delhi for about 8-10 years. About 10 days earlier, the appellant came from Delhi to informant's place along with his children. He was to go to his native village Nasa under Panchdeora Police Station, Hardoi. In the night between 21/22nd March, 2004, the appellant and deceased Geeta slept on a cot in a room where their children Suraj, 13 years (P.W.2), Saurabh, 10 years (D.W.1) and Gaurish, 5 years also slept on another cot. At about 3.00 a.m. in the night, the appellant strangulated Geeta with the Saree which she was wearing. On hearing the cries of children, the informant and his elder brother Sushil Kumar and mother Sushila Devi went running and saw the appellant strangulating Geeta with her Saree. On being challenged, the appellant ran away from the room. On going near Geeta, they found that she was dead. Her dead body remained lying in the room. The appellant used to allege that Geeta was characterless and for this reason there used to be frequent quarrels between the two.

3. The formal F.I.R. (Ext. Ka.7) was recorded at the Police Station situated at a distance of two kilometers from the place of occurrence, house of the informant on 22nd March, 2004 at 9.05 a.m. on the basis of written report of the informant, indicated above. After investigating the offence recorded as Crime No. 71/04, police submitted Charge Sheet No. 207/04 under Section 302 IPC against the appellant. The case was committed to the Court of Sessions on 29.06.2004 by Chief Judicial Magistrate, Hardoi. Charge was framed against the sole accused-appellant under Section 302 IPC. The appellant pleaded not guilty to the charge and hence he was put on trial. The defence of the appellant is that he and the deceased were having differences and the deceased had filed a case against him under Section 498-A and some other Sections of IPC in the year 1995, hence they had separated. According to defence version, the appellant never went to live with the deceased and was not present with her on the date of occurrence. He had been falsely implicated for ulterior reasons and, in fact, nobody had seen the occurrence which took place in dark hours of night. It is further defence of the appellant that the informant took time, planned a false case and approached the police belatedly at about 9.00 a.m. when the Police Station was situated only at a distance of two kilometers.

4. To prove the charge, prosecution has examined altogether six witnesses. P.W.1 Ashish Kumar is the informant. He has supported the entire version of the occurrence as given in the F.I.R. According to sketch map of the place of occurrence prepared by the Investigating Officer (I.O.) and proved as Ext. Ka.9, the room in which occurrence took place was a separate room having a door opening towards west on the khadanja road. It also had another door opening towards north which area, as per map, is a Gali. The informant has claimed that the door on the north opens in his house but this is contrary to the sketch map (Ext. Ka.9). He has admitted that a Police Chauki is situated at a distance of one kilometer from his house. He has claimed that he and other witnesses heard the cries of children and upon that they went to the place of occurrence. He claimed to have seen the appellant strangulating the deceased. He also claimed to have chased the appellant but only till the door and not thereafter. According to him, the I.O. Ghanshyam Tiwari, P.W. 5 came to his house in the morning at about 7 - 7.30 and at that time writing work was going on and thereafter he went to Police Station. He denied any knowledge of criminal case lodged by his sister, the deceased, against the appellant in the past. He also denied suggestion by the defence that after case for dowry and torture, the appellant did not visit the deceased and he was not present with the deceased in the night of occurrence. He also denied that he has not seen the occurrence. He admitted that by the time he prepared the written report in the morning, the whole town had come to know of occurrence and many persons from neighbourhood had come and seen the dead body. He did not disclose about the occurrence to them. He denied that he had disclosed the time of occurrence to the I.O. as 12 in the night. He has also claimed that his alias name is Sushil Kumar alias Sunil Kumar.

5. P.W.2 Suraj is eldest son of the deceased and the appellant. In Court, he disclosed his age as 12 years. He has claimed that at the time of occurrence, he and his mother and father used to live in the house of his Mama Ashish Kumar. He has claimed that the occurrence took place in the night between 3-4 a.m. and he along with his younger brothers, Saurabh and Gaurav were also sleeping in the same room. His father was assaulting his mother with a stick (danda). He asked the witnesses to sit quietly or he would be assaulted. When the appellant pressed the neck of his mother with pallu of her Saree, then he cried and upon that his Mama and Nani arrived, the appellant left his mother and fled away and his mother was found dead. He claimed to have seen the appellant giving 4-5 blows to her mother with danda and immediately thereafter he started pressing her neck. On this he cried and the witnesses arrived. He has claimed that the door opening towards khadanja was opened by his father and that the other door opening in the Gali was shut but not bolted. He denied any knowledge of previous case lodged by his mother against his father. He has also denied similar suggestions as were given to P.W.1.

6. P.W.3 Smt. Sushila is mother of the deceased. She has claimed that in the night at about 3, when her grand children Saurabh and Gaurav had cried then she went in the room where occurrence took place. According to her, she could enter the room because there was no door in the same. She claimed that she saw the appellant strangulating the deceased with Saree. Her two sons, Ashish and Sushil also saw the entire occurrence. According to her, her grand children Saurabh and Gaurav also disclosed later on that appellant had quarreled with the deceased whole night and had assaulted her with lathi and danda. She admitted that after post-mortem examination, she came to know that a steel glass was found inserted in the private part of the deceased. She denied to have heard any noise made by the deceased. She found that neck of the deceased was tied with a Saree from all around and the knot was in the front. There were two knots. She admitted that no danda was given to the I.O. According to her, nobody chased the culprit who ran away without taking anything. According to her, articles in the room had been scattered. She did not see whether there was any jewellery on the body of the deceased but her daughters-in-law later on told her that all jewellery was missing. She has admitted that bangles of the deceased were not broken. She has also admitted that some words had been written on the blouse of the deceased in blue ink but she could not read the same. She subsequently claimed that there was a door in the room which opened outside and the door which opened inside had no door planks. This was contrary to statement of P.W. 2 that the said door was shut but not bolted. She admitted that six years prior to the occurrence, her daughter had filed a case relating to torture for dowry but she denied that after the said case, the appellant had stopped coming to her house. She also denied the suggestion that the appellant had deserted the deceased and the occurrence was caused by some unknown outsider.

7. P.W. 4 is Sub Inspector of Police Rajiv Kumar Singh, who has proved the inquest report and several other documents including some challans and letters as Exts. Ka.1 to Ka.8. He has admitted that steel glass in the private part of the deceased could not be detected in the inquest because there was no lady Constable present at that time. He has claimed that he saw some marks only near the neck of the deceased and also saw something written in Hindi with blue ink on the blouse of the deceased but he could not read the same.

8. P.W. 5 is another police officer Ghanshyam Tiwari, who investigated the case. He gave out the details of investigation done by him and also proved Exts. Ka.7 to Ka.9. He submitted charge sheet on which signature of the Inspector was proved as Ext. Ka.10. According to him, the Chauki Incharge, S. I. Rajeev Kumar Singh along with one S.I. Virendra Singh and another Constable were first sent to the place of occurrence and thereafter he was given telephonic information and thereafter he went to the place of occurrence. He denied that the informant had gone to Police Station with him whereas according to P.W. 1, this witness arrived at his house in the morning between 7 and 7.30 when the writing work was going on and thereafter he went to Police Station. According to P.W. 2, police had taken the informant to Kotwali on Jeep. The I.O. has claimed that he first recorded the statement of informant and then witnesses Sushil Kumar, Sushila Devi, Saurabh and Gaurav. He also deposed that at the time of inquest, no marks of injury was found on the body of the deceased except the Saree with knots on the neck. He did not find any danda in the room nor any danda was given to him by the informant or witnesses. He did not find any broken pieces of bangles. Nobody disclosed that the culprit was chased after the occurrence. He did not record statement of any of the neighbours. He has further disclosed that witness Sushil Kumar had given the time of occurrence as 12 in the night. He denied that there was any writing on the blouse of the deceased with red ink and claimed that since there was no writing, hence he did not get the blouse examined by any expert. He has pointed out many exaggerations in the statements of P.W.1 and P.W.2 made in the Court regarding allegation against the appellant that he suspected the deceased to be characterless and used to assault her. He also disclosed that P.W. 2 had not stated earlier that he was threatened to remain quiet or he would be assaulted by the appellant.

9. The last witness for the prosecution is P.W. 6 Dr. J.L. Gautam who had conducted autopsy on the dead body of the deceased. He found something written with blue ink on the blouse of the deceased but it was not legible. He found a ligature mark around the neck which was horizontal on the lower part. Some bones under the ligature mark were found broken. He also found bruise on the upper part of the chest in the front and towards the shoulder. He found abrasion on the wrist joint of right hand and near about that place. Abrasion mark and swelling was also found near private parts where he found steel glass inserted. In the opinion of the doctor, death was caused due to strangulation with cloth and death was possible in the night of 21 and 22nd March, 2004 between 2 and 3 a.m. In the cross-examination, he admitted that time of death could differ by 2 to 3 hours either way.

10. In order to prove the defence case, defence has examined only one witness Saurabh Singh, younger brother of P.W.2 and second son of the appellant and the deceased, who disclosed his age on 11.04.2005 as 13 years. According to him, he and his brothers along with their mother used to live in their Nanihal at Hardoi and his father never visited them at that place. According to him, in the night of occurrence, all the three brothers were sleeping with their Nani and in the morning when they woke up, on noise made by Nani and Mama, they saw their mother dead. He claimed that he was threatened by his Mama and Nani to give a statement on their dictation. According to him, his father did not kill his mother. He has stated that when he was being examined in Court, at that time he and his two brothers were living with their uncle in village Nasa. He claimed that they had run away from their Nanihal out of fear. He denied that he was tutored by his uncle and had deposed falsely to save his father.

11. A careful perusal of post-mortem report along with deposition of the Doctor and the objective findings of the Investigating Officer discloses that the deceased was quickly overpowered and strangulated. The offender had full opportunity to apply two knots with the Saree with which the deceased was strangulated. He also had time to violate the private parts of the deceased in a ruthless manner and also to write some message on the blouse of the deceased. It suggests that after the deceased was dead or nearly dead, the offender felt free to do these acts without there being any fight or resistance by the deceased. Her bangles were found intact as is evident from the inquest report and deposition of the witnesses. Although P.W.2 has claimed that he woke up and saw the assault on the deceased by the appellant with a danda and also act of strangulation but no other witness has come forward to claim that the deceased raised any noise or she cried. Had there been actual assault by danda repeatedly 4 or 5 times, different injuries would have been found on various parts of the deceased but no such marks were found on the dead body except some scratches and bruises. The evidence of P.W. 2 does not inspire confidence because if his version is accepted, then there was no opportunity for the offender to violate the private parts of the deceased and if such violation has taken place before he woke up, there is no explanation why the deceased did not resist such brutal assault and did not attempt to save herself. The fact that her bangles were intact clearly indicates that she was not in a position to fight the assailant. Such a situation clearly demonstrates that P.W. 2 has been tutored to give an eye witness account which is unreliable and falsified by medical evidence and objective findings of the I.O. Non-location of the danda also creates doubt in respect of evidence of P.W. 2. According to age given by D.W.1, his brother Suraj was about 14 years, being two years senior to him and if the version of P.W. 2 is accepted as correct, it is improbable that three sons of the deceased would not make attempt to save their mother and shall be mute spectator of different kinds of assault on her.

12. In case the deceased was sleeping with her husband, it is improbable that the door opening towards the Gali shall be left ajar. Further suspicion arises on account of contradiction between claim of P.W. 2 that the door was ajar and claim of P.W.3 that the door had no door planks.

13. The occurrence was reported after a delay of about six hours when the Police Chauki was situated only at a distance of one kilometer and the Police Station was at a distance of two kilometers. In the facts and circumstances of the case, it creates some suspicion that the earliest version of occurrence was afterthought and manipulated. Non-examination of brother of the informant, Sushil Kumar and false claim of P.W.1 that his alias name is Sushil Kumar adds to the suspicion. The witnesses of the neighborhood have also been left out and not examined without any good reasons. Had they been examined, it would have reassured the Court if they could depose that the appellant had come to the house of the informant and had stayed there on the fateful night. Although P.W.1 attempted to show ignorance about dowry case lodged by the deceased earlier but this was later admitted by P.W.3 and this makes the defence case probable that the appellant had not been on visiting terms with his wife as has been claimed by D.W.1, second son of the deceased and the appellant.

14. For the aforesaid reasons, it is not found safe to rely upon evidence of P.W.1, P.W. 2 and P.W.3 and appellant is held entitled to benefit of doubt that he may not be with the deceased on the fateful night and the occurrence might have been committed by some unknown person.

15. Accordingly, the appeal is allowed. The judgment and order of the trial Court is set aside and the appellant is acquitted of the charges levelled against him. He is directed to be released from Jail custody forthwith unless wanted in connection with some other case.

16. Before parting with the judgment, we would like to appreciate the labour put in by the learned Amicus Curiae appearing in this case on behalf of the appellant. He should be paid his fees in the prescribed scale by the concerned authority.

(Shiva Kirti Singh, C.J.)

I agree.

(Devendra Kumar Arora, J.).

April 18, 2013

AHA

Hon'ble Shiva Kirti Singh, Chief Justice

Hon'ble Devendra Kumar Arora, J.

Appeal is allowed.

For orders, see order of date passed on separate sheets.

18.04.2013

AHA