Shree @ Shree Kishun Turha vs State Of U.P.
2015 Latest Caselaw 1999 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. 36
 
Case :- CRIMINAL APPEAL No. - 3263 of 2015
 
Appellant :-  Shree @ Shree Kishan Turha 
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- 	Ashok Kumar, Kameshwar Singh
 
Counsel for Respondent :- Saghir Ahmed Govt. Advocate
 
Connected with
 
Case :- CRIMINAL APPEAL No. - 2561 of 2015
 
Appellant :- Dashrath Turha 
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ashok Kumar, Kameshwar Singh
 
Counsel for Respondent :- Saghir Ahmed Govt. Advocate
 
Hon'ble Amreshwar Pratap Sahi, J. 

Hon'ble Pramod Kumar Srivastava,J.

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1.These two appeals have been preferred against the judgment dated 11.6.2015 passed by the Sessions Judge, Ballia in S.T. No. 184 of 2012, State Vs. Shree @ Shree Kishun Turha and Another, Case Crime No. 39 of 2012, Section 302/34 I.P.C., P.S. Maniyar, Ballia, by which these two appellants Shree @ Shree Kishun Turha and Dashrath Turha were convicted under section 302/34 I.P.C. and each were punished with imprisonment for life and Rs. 15,000/- as fine (in default of payment of fine, one year simple imprisonment).

2.Prosecution case in brief is that on 05.05.2012 at about 9:30 p.m. Subhash Verma (the brother of informant Gulab Chand Verma PW-1) had taken his meals and went to his pumping-set to sleep but did not reach there. Next morning on 6.5.2012, informant's nephew Shiv Ji Verma (PW-4) informed him that Subhash had not reached the pumping set at night. Then the informant Gulab Chand Verma started searching Subhash. In the same evening at about 5:30 p.m. some women of the village had seen the dead body of a man in the Maize field of the village and raised an alarm whereupon the villagers including the informant had reached there and found the dead body of Subhash Verma lying there. They also found that in the abdomen of the dead body of Subhash one sharp edged weapon of iron was inserted and his intestines were protruding out of the body. Thereafter informant Gulab Chand Verma gave a written report of the incident at the police station on the same day, i.e. on 6.5.2012 at 18:45 hours. In his report he had also written that it appears that some unknown person had murdered his brother Subhash Verma with a blow of Barchhi (sharp edged weapon). On the basis of the said F.I.R., Case Crime No. 39 of 2012 was registered.

3.During investigation of the case, first Investigating Officer S.I. Abhay Kumar Singh (PW-8) had visited the spot and got the inquest report prepared and sent the dead body of Subhash for post-mortem. On the same day, i.e. on 6.5.2012, this I.O. had recorded the statement of informant Gulab Chand Verma (PW-1) and that of Shiv Ji Verma. These witnesses had not named any person, who may be doubted for the murder of Subhash. Informant Gulab Chand Verma had informed the I.O. that it appears that some unknown person had murdered his brother Subhash in the night of 5/6.5.2012. Shiv Ji Verma was the witness of inquest and had informed nothing to the I.O. on that day. The post-mortem of the dead body was conducted on 07.05.2012 at about 4:30 p.m. by Dr. R.N. Upadhyay (PW-5), who had proved that one scratched contused swelling on right parito-occipital region and one incised wound 7x6 c.m. in abdominal region was present on the dead body of Subhash and intestines had come out of the dead body with blood clots, which proved his murder. On 09.05.2012 first Investigating Officer (PW-8) had recorded the statement of Smt. Muniya Devi, wife of deceased Subhash Verma, under section 161 CrPC, in which she had only stated that her husband Subhash was in friendship with Shree Turha, who had taken a loan of Rs. 10,500/- from her husband and she had therefore doubted that Shree Turha might have been involved in the murder of her husband. None of the witnesses of fact had stated anything regarding the last seen evidence of deceased. After investigation charge-sheet was filed, on the basis of which Sessions Trial No. 184/2012, State Vs. Shree Kishun @ Shree and Dashrath Turha was registered.

4.During trial, prosecution examined PW-1 Gulab Chand Verma (informant), PW-2 Vijay Verma (witness of inquest), PW-3 Smt. Muniya Devi (wife of deceased Subhash), PW-4 Shiv Ji Verma (witness of inquest and motive), PW-5 Dr. R.N. Upadhyay (who conducted post-mortem), PW-6 Head Constable Rama Shanker (for proving chik F.I.R. and G.D. of registration of the case), PW-7 S.I. Kanhaiya Lal Yadav (second I.O.) and PW-8 Inspector Abhay Kumar Singh (first Investigating Officer).

5.After closure of prosecution evidence, statements of accused Shree Kishun Turha and Dashrath Turha u/s 313 CrPC were recorded, who had denied the prosecution evidence and stated that witnesses had given wrong statements and they were implicated due to enmity with the villagers. Defence had not adduced any evidence.

6.After conclusion of the evidence of both sides, the trial court had afforded an opportunity of hearing to both the sides and thereafter passed the impugned judgment dated 11.06.2015, by which both the accused were convicted for the charged offence u/s 302/34 IPC and were punished as above. Aggrieved by this judgment dated 11.06.2015, the present appeal has been preferred by the two accused persons, who were convicted.

7.We have heard Sri Ashok Kumar and Sri Kameshwar Singh, learned counsel for the appellants and Sri Saghir Ahmed, learned AGA on behalf of respondent-State and gone through the original records of this case.

8.Learned counsel for the appellants contended that there is no believable evidence at all against the appellants for convicting them nor there was any direct or indirect evidenceof commission of charged incident. Nothing related to this case or deceased was recovered from their custody during investigation. No one had seen them with the deceased near the spot and in fact there is no witness of last seen evidence. It was also contended that PW-3 Smt. Muniya, wife of deceased, had in fact not informed the first Investigation Officer during their investigation about them being seen or going with the deceased but this fact was an improvement during the trial. Learned counsel for the appellants contended that there is no evidence to connect the appellants with the charged incident. Therefore, such judgment of conviction and punishment should be quashed and appeal should be allowed.

9.Learned AGA has urged that in this case eight witnesses were examined, out of which one PW-3 Smt. Muniya, wife of deceased had been witness of last seen of her deceased husband with appellants. He contended that shortly after PW-3 Smt. Muniya had seen the appellants with her husband, he had been murdered, and this is proof of involvement of the appellants in the charged incident. Therefore, the appeal should be dismissed.

10.We have heard the rival contentions of learned counsel for the parties and have gone through the evidence adduced in this case.

11.Out of the eight witnesses examined in this case, four of them, namely PW-5 to PW-8 were formal official witnesses. PW-5 Dr. R.N. Upadhayay had conducted the post-mortem and proved his post-mortem report as well as the murder of deceased Subhash being committed in the night of 5/6.5.2012. His testimony is believable and has not been challenged by the appellants.

12.PW-6 is the Constable Clerk who had prepared chik FIR on the basis of written report given by the informant PW-1 and also prepared G.D. for registration of the case. PW-8 is the first Investigating Officer of this case and PW-7 is the second Investigating Officer of this case. PW-8 Abhay Kumar Singh, the then S.O. of police station Maniyar, had stated that he had inspected the spot on the pointing out of the informant and collected evidence on the spot and completed the inquest proceedings. PW-8 first IO had specifically stated that during inquest proceedings and recording of statement, Shiv Ji Verma (PW-4) and informant Gulab Chand Verma (PW-1) had not informed him as to how and by whom murder was committed. PW-8 I.O. had also stated that during her statement wife of deceased (PW-3) had some doubt on Shree Turha, who had taken loan of Rs. 10,000/- from Subhash. PW-8 had not given any evidence to the effect that any of the witnesses of fact had informed him about the deceased being last seen with any of the accused-appellants. During the proceedings of investigation with PW-8 (till 18.5.2012) investigation was carried out against unknown accused persons; then it was transferred to another investigating officer PW-7. The second investigating officer PW-7 Kanhaiya Lal Yadav had stated that he had accepted the investigation of this case on 18.5.2012 and recorded the statement of informant Gulab Chand Verma and Smt. Muniya Devi, wife of deceased on 20.05.2012, and then arrested the accused Shree Kishun on 22.05.2012 and accused Dashrath Turha on 27.05.2012. But PW-7 (second I.O.) had specifically stated during his cross-examination that no witness had informed him that accused Dashrath or accused Shree Kishun Turha were seen going towards the spot of the incident or were seen with the deceased. Thus from the evidence of formal witnesses, namely PW-5, PW-6, PW-7 and PW-8, no incriminating evidence had surfaced during trial.

13.Out of remaining four private witnesses, PW-1 Gulab Chand Verma is the informant of the case, who had not seen the incident nor is the eye witness of any last seen evidence. He had only deposed about the probable motive, which the accused-appellants would have against the deceased. PW-2 Vijay Verma and PW-4 Shiv Ji Verma are the witnesses of inquest proceedings, who had not stated anything about the facts of the charged incident. They had never stated anything about the appellants being present or seen near the spot of incident or with the deceased. Even PW-3 Smt. Muniya had also not witnessed the charged incident but had given the evidence of last seen for the first time in Court and not even to any investigating officer. She had tried to prove the motive of murder of her husband. So far as motive of murder is concerned, the prosecution case has been that the two appellants Shree Kishun and Dashrath Turaha had received some monetary loan from the deceased and for that reason they had motive of murder of her husband. This was challenged by the appellant side that mere accepting loan of a petty amount cannot be motive for murder, especially when relations are normal and friendly. Such argument is not totally unacceptable. The amount of loan allegedly taken by appellants-accused was different in statements of PW-1, PW-3 and PW-4. From evidence it appears that the appellants had good relations with the deceased and had no enmity with him, much less an enmity to murder him. So motive of charged incident is not proved.

14.A perusal of the impugned judgment shows that after appreciating the evidence learned Sessions Judge had accepted the statement of PW-3 Smt. Muniya Devi without appreciating the point that both the investigating officers have specifically stated that she had not disclosed any information of the alleged last seen company of accused-appellants with the deceased.

15.Learned counsel for the appellants had contended that the information given by the witness (PW-3 Smt. Muniya) to the police in this case is delayed for about two weeks and this delay was not properly explained. The new information regarding alleged last seen by of appellants-accused by PW-3 to new IO (PW-7) was furnished, and then on its basis fresh investigation had started. It was informant (PW-1) who set the law into motion for prompt investigation and his act of good faith cannot be doubted. He is family member of deceased Subhash and his wife (PW-3 Muniya) who have a common residence. Learned counsel for the appellants also questioned the silence of witness PW-3 Muniya, wife of deceased, who had not given her statement before police (PW-8 first IO) about those accused persons, who are well acquainted and previously known persons. He further contended that best evidence of this case was suppressed by the prosecution. Not lodging of the FIR disclosing the alleged last seen incident as well as extra-ordinary delay in informing the police about the names of previously known culprits was not explained. He also contended that the trial court had passed its judgment on hearsay and unacceptable evidence which is erroneous. Since the prosecution side had failed to prove charges beyond doubt therefore the appeal should be allowed and the appellants should be acquitted.

16.Learned AGA has refuted the contentions of the appellants' side and contended that if some fault has been committed by the first Investigating Officer in recording evidence of PW-3 during investigation, then the prosecution should not suffer for that reason, especially when second IO (PW-7) has investigated the crime. He contended that due to negligence earlier I.O. had not investigated the matter properly, but when investigation was handed over to new IO (PW-7) then proper evidence was collected. There is no contradiction in the evidence of witnesses of facts and delay in informing the police has been properly explained. Prosecution side has proved charges beyond doubt, therefore, judgment of conviction based on proper evidence should be upheld and appeal should be dismissed.

17.Although in the present case the formal first information report (FIR) was lodged by informant (PW-1) on 05-05-20126 at 9.30 p.m., in which no information of last seen incident of deceased with accused-appellants was mentioned, but later on after about two weeks (on 20-05-2012) fresh information about appellants was furnished for the first time, on basis of which almost de novo investigation started and appellants were made accused and were arrested. Thus during the investigation on 20-05-2012, for the first time investigation in real sense started in this matter on the basis of those facts furnished to new IO, which were already in the knowledge of informant and the witnesses, and which they had not informed to the earlier Investigating Officer. These facts were the name of accused and they being allegedly last seen with the deceased.

18.Thus the name of two accused-appellants came in light for the first time after about two weeks of the incident on basis of the information furnished by PW-3 and PW-1. So for all practical purposes first information report for the charge-sheeted accused-appellants was reported with the police on 20-05-2012. Then investigation started afresh on this oral first information dated 20-05-2012, which was completely different from the original formal FIR dated 06-05-2012 (Ex. Ka-1) on the basis of which case crime no. 39/20126 was registered; therefore in the present case information dated 20-05-2012 should be and is being treated as FIR.

19.Admittedly the charged incident was committed in the night of 05-05-2012; and from that time informant and his family members, who are witnesses of fact and live in the same house, were conscious and were in full senses. After initiation of the investigation the statement of informant and other witnesses (especially PW-3) were recorded, but no witness named any previously known accused from 05-05-2012 to 19-05-2012. So the information dated 20-05-2012 (or FIR in true sense for the charge-sheeted offence and accused-appellants) was without any doubt very much delayed, and without any reasonable explanation.

20.The legal position of such delayed information (or FIR) is discussed by Hon'ble Supreme Court in its various judgments. In 'Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1' Hon'ble Apex Court had held as under:

"The obligation to register FIR has inherent advantages:

(a) It is the first step to "access to justice" for a victim.

(b) It upholds the "rule of law" inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State.

(c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law.

(d) It leads to less manipulation in criminal cases and lessens incidents of "antedated" FIR or deliberately delayed FIR."

In 'Thulia Kali v. State of T.N., (1972) 3 SCC 393 ', Hon'ble Apex Court held as under:

"First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."

In 'Kishan Singh v. Gurpal Singh, (2010) 8 SCC 775' Hon'ble Apex Court held as under:

"In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the civil court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case."

In "Silak Ram v. State of Haryana, (2007) 10 SCC 464" Supreme Court had held:

"Delay in lodging FIR by itself would not be sufficient to discard the prosecution version unless it is unexplained and such delay coupled with the likelihood of concoction of evidence. There is no hard-and-fast rule that delay in filing FIR in each and every case is fatal and on account of such delay the prosecution version should be discarded. The factum of delay requires the court to scrutinise the evidence adduced with greater degree of care and caution."

In Ramdas v. State of Maharashtra, (2007) 2 SCC 170 Hon'ble Apex Court had held:

"It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. - - - - The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them. In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. - - - - - In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. - - - - Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact."

22.In light of the above mentioned legal position we have gone through the evidence adduced by the prosecution. The trial Court had accepted every explanation given by the prosecution without considering its evidentiary value. PW-3 Smt. Muniya had not given any satisfactory reason as to why she had not stated names of previously known accused persons to any person, especially to any IO, soon after the incident. There is no explanation of this delay. PW-1 informant lives in his house with deceased's wife (PW-3). When he got information from his nephew (PW-4) about non reaching of Subhash at the tube-well at night, then it was natural for him to ask Subhash's wife (PW-3) about her husband before starting search of Subhash, as alleged in the FIR. But he had not mentioned the name of previously known appellants-accused in his FIR (Ex. Ka-1) and mentioned in it that some unknown culprit had murdered him. There is no explanation of not raising any doubt on any accused in FIR. But PW-3 had informed the name of alleged culprits to I.O. after two weeks. She had not given satisfactory explanation of not informing their names earlier. She could have informed to the police personnel or to informant who had been searching her husband. But it was not done and its explanation was also not given. There is no satisfactory explanation as to why PW-3 had not informed the name of alleged culprits who were last seen, and on whom she had doubt of murder of her husband. In fact she (PW-3) and informant (PW-!) had permitted police/ I.O. to believe that the incident of murder was caused by unknown persons, and for a very long period they had not informed the police nor given any written information to anyone about the name of appellants' probability of involvement in this case. Natural reason of this may be that she had no knowledge about the identity of the real culprits. She had not informed the two I.O.'s (PW-7 & PW-8) that she had last seen her husband with the appellants. There is no satisfactory explanation as to why PW-3 or PW-1 had deliberately chosen to conceal such important explanation and led the police to investigate the matter in a wrong way. In this way they had deliberately consented to let that evidence vanish with time which could have been available if immediate investigation had started in the right direction. Deliberately furnishing incorrect information had the effect of stopping the proper investigation; and such a thing had an adverse effect on the legal rights of the accused who had been involved in the case due to such faulty investigation.

23. PW-1 and PW-3 were expected to give correct information to the police at first opportunity, but they had no done so. The deceased's wife (PW-3) had given the information about the last seen fact of the deceased with the appellants for the first time in Court, and not even to any I.O., so the authencity of it could not be investigated or verified. These facts supports the defence case that after passing of sufficient time after the incident, the prosecution witnesses had falsely implicated the appellants due to enmity relating to apprehension of loss of money of the alleged loan; and unexplained very long delay afforded opportunity to PW-1 and PW-3 who had got opportunity of consultation to settle their scores and their dispute by implicating appellants as accused in this case. This appears the only reason for unexplained deliberate delay in informing the police about the name of the appellants after about two weeks of the incident. PW-1 and PW-3 had sufficient opportunity to explain the police about the incident of the alleged doubt or last seen within reasonable time about allegedly previously known culprits, but they had deliberately chosen not to name appellants, the reason of which may be that in fact appellants were not involved in the incident relating to this case. In their examination in Court the witnesses PW-1, PW-3 or PW-4 had not given any satisfactory explanation of delay in informing the police about the name of accused persons. Therefore the best evidence on this point was also suppressed by the prosecution which leads to a presumption against the prosecution story. The acceptance of statement of PW-3 Smt. Muniya by the trial court on this point is not based on any reason, hence it is erroneous and not acceptable in law.

24. There are grey areas of this case. Two Investigating Officers had been examined and before none of them any prosecution witnesses had named any accused persons as culprit of this case on the basis of last seen information. The second I.O. had allegedly recorded belated statement of PW-3 regarding naming of accused-appellants. If the witnesses of this case had informed the police immediately after the incident about name of accused-appellants as culprits of this case, then law would have been set into motion for verifying the truthfulness of their statements. Long delay in such matters resulted in vanishing of the evidence. The deliberate long unexplained delay by PW-1, PW-3 and PW-4 had resulted in disappearance of important evidence. Therefore, disappearance of very important factual and circumstantial evidences, which were available immediately after the commission of incident were destroyed due to very long unexplained delay by the witnesses examined in this case. Therefore, this had caused undue prejudice to the accused-appellants because I.O. was not in a position to investigate the matter verifying the truthfulness of evidence and to verify the angle of innocence of the accused-appellants. For such deliberate unexplained acts of PW-1 and PW-3, the accused appellants should not suffer. Prosecution case was that FIR of this case was immediately lodged after the incident. The case of prosecution was that initially incorrect report was lodged by not informing the name of the appellants-accused that had resulted in diverting the attention of the police and misleading them. It appears that after having recovered from shock of death of Subhash and after lapse of sufficient time, the sense of sadness of PW-1 and PW-3 had evaporated, and then they had chosen to go back to pursue their disputes, and for that reason named the appellants as persons involved in this case after about two weeks of the incident.

25.As discussed above the motive of charged incident is not proved. Apart from it, if it is accepted for the sake of argument that the appellants were last seen with the deceased in the night of 05-05-2012, even then there is no evidence that they were present near the spot of murder at any time. No witness had seen the appellants going towards the place of murder or coming back from that place. Their presence near spot of charged incident was not proved. Nothing incriminating was recovered from appellants-accused. None of their activity after the incident had been such to raise any suspicion. It is a case of circumstantial evidence, but there appears no chain of circumstances that may lead to solitary inference of guilt of the appellants only. Every fact pointed out by the prosecution appears unbelievable or doubtful.

26.On the basis of above discussion, we are of the considered opinion that the learned Sessions Judge had not understood facts and evidence available in this case and had passed judgment of conviction without properly appreciating circumstances in this case of circumstantial evidence. In view of the above, we are of the considered opinion that the prosecution had failed to prove charges beyond reasonable doubt against the accused persons. Therefore the appeal succeeds and is, accordingly, allowed. The judgment of conviction dated 11.6.2015 passed by the Sessions Judge, Ballia in S.T. No. 184 of 2012, State Vs. Shree @ Shree Kishun Turha and another, case crime No. 39 of 2012, section 302/34 I.P.C., p.s. Maniyar, Ballia is set aside, and both the accused-appellants namely Shree @ Shree Kishun Turha and Dashrath Turha are acquitted of charges under section 302 read with 34 IPC. Accused appellants are in custody. They be released immediately if not wanted in any other case.

27.Let the copy of this judgment be sent to Sessions Judge, Ballia for ensuring its compliance.

Date:-27.8.2015

SR