Manjesh & Another vs State Of U.P.
2013 Latest Caselaw 3651 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 38
 

 
Case :- CRIMINAL APPEAL No. - 8382 of 2008
 

 
Appellant :- Manjesh & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Arvind Yadav,Ajay Kumar Pandey,Ajendra Kumar,R.N. Gupta,Sanjeev Kr. Pandey,Satish Trivedi
 
Counsel for Respondent :- Govt. Advocate
 

 
				And
 

 
Case :- CRIMINAL APPEAL No. - 8839 of 2008
 

 
Appellant :- Ramvir And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Arvind Yadav,Ajay Kumar Pandey,Ajendra Kumar,Akhilesh Singh,Sanjeev Kumar Pandey
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arun Tandon,J.

Hon'ble Vijay Prakash Pathak,J.

Heard Sri Satish Trivedi, learned Senior Advocate on behalf of appellants assisted by Sri A.K. Pandey, Advocate and learned Additional Government Advocate on behalf of the State of U.P. in both the appeals.

Both these Criminal Appeals arise out of the judgment and order passed by the Additional Sessions Judge/F.T.C. No. 3, Etah dated 27.11.2008 in Sessions Trial No. 711 of 2001 (State versus Ramveer and others) arising out of Case Crime No. 62 of 2000. Under the judgments the appellants have been convicted for an offence under sections 302/34 I.P.C.

In the judgments under appeal, accused Ramveer, Rajpal, Manjesh and Durbin have been convicted of an offence under sections 302/34 I.P.C.and have been sentenced to life imprisonment with a fine of Rs. 5,000/- each, in case of default of payment of fine, to undergo further imprisonment for six months.

Accused Ramveer and Rajpal have filed Criminal Appeal No. 8839 of 2008 while Manjesh and Durbin Singh have filed Criminal Appeal No. 8382 of 2008. Appellant Durbin Singh died during pendency of the appeal, hence his appeal stands abated.

Since both the appeals arise out of the common judgment and order of the Sessions Court they have been clubbed together. Both the appeals are being heard and decided by a common judgment.

The prosecution story as reflected from the record of the present appeal are as follows :-

One Sanjay son of Ramveer, (one of the appellants) had illicit relations with the wife of the younger brother of Informant Udaiveer namely Akhilesh. She was the daughter of materal uncle of Sanjay. Sanjay used to visit the residence of Akhilesh. Sanjay made an attempt to have illicit relations with the wife of second brother of Udaiveer the informant, namely, Jaiveer. He was caught by the residents of the house, as a result of which, Sanjay committed suicide by hanging himself in the jungle. Because of the said incident, Ramveer and his family members are said to have inimical feeling with the informant and his family members.

On 26.4.2000 the first informant Udaiveer Singh along with his brother Jaiver and Akhilesh and Munni Devi wife of Jaiveer went to bazar at Kasba Aliganj on the tractor of one Zamadar Singh son of Data Ram. Zamadar Singh stopped his tractor for repairs at Dak Bunglow crossing at Patiyali Road. At about 5:20pm, Ramveer, Rajpal, sons of Parmeshwari, Durbin son of Saheb Singh, Manjesh son of Rajpal and uncle of Ramveer approached the first informant and his companions and they took away Jaiveer with them. The informant, his brother Akhilesh and Munni Devi apprehended that some untoward incident may take place with Jaiveer Singh, therefore, they started walking behind the aforesaid persons.

The aforesaid Ramveer and his companions took Jaiveer Singh to some distance and thereafter, they started abusing and pulling him towards the agricultural field on north-west of village Kailtha. They inflicted large number of wounds by Khurpi on Jaiveer. The injuries resulted in his instant death. The informant and his two brothers made an attempt to save Jaiveer Singh. However, Ramveer, Rajpal, Durbin, Manjesh and uncle of Ramver ran away after leaving the dead body of Jaiveer at the place of incident.

The first informant lodged the FIR at the Police Station Aliganj, District Etah on 26.4.2000 at 7:15 pm. On the basis of FIR, Case crime no. 62 of 2000 was registered under sections 302/34 IP.C. against the accused. The investigation of the case was started by S.O. A.P.Sonkar. The inquest of the dead body was prepared by S.I. Virendra Kumar Sharma under guidance of S.O. A.P.Sonkar. It was sent for post-mortem examination. The post mortem of the dead body was done by Dr. Brijesh Rathore (PW-8).

The ante-mortem injuries suffered by the deceased, as per the post-mortem report were as follows :

"1. ihB ij 30 lseh˜26 lseh ds {ks= es cgqr lkjs uhyxw ds fu'kku Fks A

2& ekFks ij fupys [email protected] mijh Hkkx ls ysdj mij gksB rd 13˜8 lseh dk cksudV ?kko ekStwn Fkk A ukd ds mij dksbZ [kky ekStwn ugh Fkh vkSj u gh dksbZ lks¶V ikVZ gh ekStwn Fkk A"

After completing investigation of the case, a charge sheet was filed by S.H.O.Mangli Prasad against four accused persons excluding the uncle of Ramveer under section 302 IPC.

The charges under section 302/34 I.P.C. were framed against the accused by the trial court. The accused denied charges and asked for trial.

First informant Udaiveer was examined as PW-1. He supported the case as stated in the FIR, PW-2 Jamadar Singh, the owner of the tractor was examined as PW-2. However, he turned hostile, Smt. Munni Devi wife of the deceased was examined as PW-3 who also turned hostile at the stage of cross-examination. S.I. A.P. Sonkar, the first Investigating Officer who had initially made the spot inspection was examined as PW-4. S.I.Satyendra Pal Singh, who prepared the chik FIR, was examined as PW-5, S.I. Mangali Prasad who had completed the investigation and had filed the charge sheet was examined as PW-6. S.I. Virendra Kumar Sharma who had prepared the inquest report was examined as PW-7. Dr. Brijesh Rathore who performed and prepared the post-mortem report was examined as PW-8. He proved the ante-mortem injuries and the post-mortem report.

According to the medical opinion, the cause of death of Jaiveer was because of excessive bleeding due to the injuries sustained by the deceased ¾ days earlier.

The accused were examined under section 313 Cr.P.C. who denied their involvement and stated that the case as stated by the prosecution was highly improbable and they have been falsely implicated due to enmity.

The trial court after considering the evidence brought on record came to the conclusion that the deceased had been done to death on account of enmity by the accused. The prosecution had been able to bring home the charges beyond doubt. Accordingly the trial court vide judgment and order dated 27.11.2000 convicted the accused Ramveer, Rajpal, Manjesh and Durbin Singh under sections 302/34 I.P.C. The accused were sentenced to life imprisonment with a fine of Rs. 5,000/- each, in case of default to undergo further imprisonment of six months.

It may be recorded that charge sheet had been filed only against four accused namely, Ramveer, Rajpal, Manjesh and Durbin and no charge sheet was filed against their uncle although he was also named in the FIR.

Challenging the order of conviction passed by the Additional Sessions Judge, Sri Satish Trivedi, learned Senior Advocate for the appellants contended before us that the entire prosecution story as disclosed in the FIR appears to be highly improbable. It is beyond belief of a common man that despite presence of the first informant Udaiveer along with his two bothers, Jaiveer and Akhilesh and Munni Devi wife of Jaiveer could watch only Jaiveer being taken away by the accused persons who were five in number on the fateful day from the Bazar without any protest. He himself stated that the accused had a grudge with the informant and his brothers due to death of Sanjay. According to Sri Trivedi, the informant, his brothers and his wife were apprehensive that some untoward incident may happen with Jaiveer, yet they did not hold back the deceased from being taken away by the accused that too without any force. The informant and his companions started following the accused but did not take any step to hold back the deceased. According to Sri Trivedi, no reasonable person will permit his brother to be taken by inimical persons from the Bazar so merrily. He further submitted that according to the FIR and prosecution evidence, Jaiveer died due to the injuries inflicted by Khurpi while the ante mortem injuries sustained by by the deceased as per the post mortem report did not support the prosecution story.

According to statement of PW-1, nearly 10 wounds were inflicted from the sharp side of Khurpi while 10 wounds were inflicted from the Butt side of Khurpi. The ante mortem injury no. 2, as noted above, could not be inflicted by the Khurpi, having regard to the size of the wounds. He further submitted that admittedly no attempt has been made by the first informant and his brothers to save the deceased at the time he was being inflicted the injuries although they were closely following Jaiveer and accused all the time. He therefore submits that in the facts of the case, the prosecution story appears to be an after-thought and outcome of motive to take revenge from the accused.

Learned Additional Government Advocate on behalf of the State contended that the FIR is prompt. The accused had been named therein. The testimony of the eyewitnesses can not be disbelieved. The death of the deceased was caused due to the injuries inflicted by the accused. Hence this Court need not interfere with the judgment of the Sessions Court.

From the record, it is established that on the fateful day, Udaiveer along with his brothers Jaiveer and Akhilesh and Munni Devi wife of Jaiveer went to Bazar altogether. The first informant and his brothers were aware that the accused had ill-will and had enmity and grudge against them because of death of Sanjay which fact is specifically stated in the First Information Report, yet when the accused were taking away the deceased, they did not protest, which is beyond comprehension of any reasonable man. The first informant, his brother and Munni Devi permitted the victim to be taken away from the Bazar toward the agricultural field on north west side of village Kailtha and the accused inflicted injuries by Khurpi while the first informant, his brother and Munni Devi kept watching and did not make any attempt to save their brother/husband. The number of persons present at the time along with victim viz.a viz. the persons who are accused are practically the same and therefore, it is hard to believer that the first informant and his brother and Munni Devi, wife of deceased Jaiveer would only watch the injuries being inflicted on Jaiveer by a Khurpi only repeatedly without any protest or effort to save the victim. The conduct of the first informant and that of his family members does not appear to be that of normal human being in the facts of the case. In our opinion, no family member can permit a person to be taken away from Bazar so peacefully without any protest despite being apprehensive of the motive and the ill-will the accused had and thereafter permit wounds to be inflicted by Khurpi repeatedly without any attempt to save the victim. We further find that the tractor driver who was present at the time Jaiveer had been taken away from the Bazar, turned hostile. Similarly, Munni Devi wife of the deceased also turned hostile at the stage of cross-examination. What is further important to note is the other brother of the victim namely Akhilesh, who was also an eyewitness of the incident, was not produced by the prosecution. We also find that injury no. 2 as mentioned in the post mortem report having regard to its size in all likelihood could not have been inflicted by a Khurpi.

In totality of the circumstances, we find that the prosecution has not been able to bring home the charges against the accused in the facts of the case beyond reasonable doubt. The accused are entitled to the benefit of doubt in the facts of the case.

In view of the aforesaid facts and circumstances, we hold that the order of conviction and sentence recorded by the Sessions Court can not be sustained and is hereby set aside. Both the appeals are allowed. The appellant Manjesh is stated to be on bail, his bail bonds are cancelled and sureties are discharged. The other two appellants namely, Ramveer Singh and Rajpal Singh are in jail. They are directed to be set at liberty forthwith.

The appellants shall ensure compliance of the provisions of Section 437-A Cr.P.C.

Order Date :- 4.7.2013

SU.

Case :- CRIMINAL APPEAL No. - 8382 of 2008

Appellant :- Manjesh & Another

Respondent :- State Of U.P.

Counsel for Appellant :- Arvind Yadav,Ajay Kumar Pandey,Ajendra Kumar,R.N. Gupta,Sanjeev Kr. Pandey,Satish Trivedi

Counsel for Respondent :- Govt. Advocate

Hon'ble Arun Tandon,J.

Hon'ble Vijay Prakash Pathak,J.

Appeal is allowed.

For details, see our order of date passed on separate sheets.

Order Date :- 4.7.2013

SU.