Munna And Another vs State
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
[Reserved]
 
Case :- CRIMINAL APPEAL No. - 1004 of 1991
 

 
Appellant :- Munna And Another
 
Respondent :- State
 
Counsel for Appellant :- H.K. Sharma,Narayan Singh Kushwaha
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Arvind Kumar Mishra-I,J.

[Delivered by Hon. Arvind Kumar Mishra-1, J. ]

Heard Shri V.P. Srivastava, learned Senior Advocate, assisted by Shri Upendra Updhyay, learned counsel appearing for the appellants and Shri A.N. Mulla and Shri Sagir Ahmad, learned counsel appearing for the State.

The aforesaid Criminal Appeal has been preferred by the appellants- Munna and Mahabir, against the judgment and order of conviction dated 9th May 1991 passed by the IInd Additional Sessions Judge, Etah in Sessions Trial No. 552 of 1988-State Vs. Munna and others, arising out of case crime no. 35 of 1987, under section 302/34 I.P.C, Police Station- Nidhauli Kalan, district- Etah, whereby the appellants have been sentenced to imprisonment for life.

The prosecution story, as unraveled by the first information report, reflects that informant- Kayam Singh son of Amaan Singh Yadav lodged written report at Police Station- Nidhauli Kalan, district- Etah on 28.7.1987 at 1.00 A.M. against four persons including present appellants with the allegations that they have caused death of deceased Sadhu Singh. It has been specifically stated that Sadhu Singh deceased who was employed as conductor in roadways department, had come to the village, it was around 4.00 P.M. when informant his cousin brother Rachhpal Singh and Anar Singh were talking to each other in the 'Sahan (Thar)'. Sadhu Singh, who was wearing underwear, was also there. Around 5.00 P.M. Ram Piari, mother of Gyan Singh @ Ginna, came to informant's 'Sehan' (Thar) and said to Sadhu Singh that his sons Munna and Ginna wished to return his money, which they had borrowed from him (Sadhu Singh) and he should settle the accounts of debt. Informant's brother Sadhu Singh accompanied Ginna's mother and went to the tube-well of the appellants, where Ginna, Munna and their brother-in-law (Bahnoi)-Mahabir Singh were present. They began to settle their accounts under thatched roof and after half an hour, first informant went to the place when he overheard Sadhu Singh saying to Ginna that Ginna should give his buffalo to him and that would be in complete settlement of the debt. Ginna was reluctant and he wanted to sell his buffalo only on cash payment. He (Ginna) also promised that he would return borrowed money of Sadhu Singh in the month of 'Kartik'. Thereafter first informant returned to his residence (thar). It was around 6.00 P.M. all the aforesaid persons Ginna, Munna and Mahabir Singh took Sadhu Singh inside the tube-well room. Soon after reaching inside the room, Sadhu Singh screamed. When the first informant- Kayam Singh and others responded to the shriek, and rushed towards the place, but they could not see anyone. When they came to 'Sehan' of Ginna, they saw Ginna's mother- Smt. Har Piari scampering towards village from the side of 'Sehan'. When they reached at the 'Sehan', they saw Ginna, Munna and Mahabir coming out of their 'Sehan' and running towards Arind river around 6 P.M. While so running Ginna left behind is slippers. Clothes of all accused bore blood stains.

The first informant and other persons, went inside the tube-well room, where they saw cut blows on the neck of Sadhu Singh. Sadhu Singh had died. Alarm was raised. A number of villagers gathered on the spot. Then, first informant and his companions chased the assailants. Assailants fired on the first informant's side, due to which, they relinquished chase. It has been stated in the written report that dead body of informant's brother was lying in the house of Ginna. Blood stained dibbers ('Khurpa') were lying on the spot. Informant has come to lodge this report after hiding his identity. Report be lodged and action be taken. This written report is Ext. Ka.- 1.

This written report was scribed by Indra Pal Singh. Contents of aforesaid written report were noted down in the concerned check first information report at case crime no. 35 of 1987, under sections 302, 307 I.P.C., which is Ext. Ka.-2. Relevant entries were made in the concerned G.D. at serial no.2 at 1.00 A.M. on 28.7.1987 and a case was registered against four persons including the present appellants. Copy of G.D. is Ext. Ka.-3.

After registration of the case, Investigating Officer- Yogendra Singh P.W.6 swung into action and took-over investigation on 28.7.1987, arrived at the spot and selected witnesses for holding inquest of deceased Sadhu Singh and held inquest, which is Ext. Ka.-5. In the opinion of witnesses, it was thought proper to send the dead body of Sadhu Singh for postmortem examination for ascertaining real cause of death.

Therefore, relevant papers were also prepared by the Investigating Officer viz. Photonash, challan dead body, police form no.13, specimen seal, letter papers to the concerned Chief Medical Officer etc. which are Ext. Ka.-6 to Ext. Ka.-9. The Investigating Officer also prepared memo of recovery of blood stained 'Angochha' which is Ext. Ka.-10. Memo of Dibber was also prepared, which is Ext. Ka.-11. The investigating officer also took sample of simple and blood-stained clay-roll and prepared memo of the same is Ext. Ka-12. One slipper allegedly belonging to the accused Ginna was also recovered from the spot and memo of the same was prepared which is Ext. Ka. 13. The investigation Officer also prepared site plan of the place of occurrence vide Ext. Ka.14 and after completing the investigation, he filed charge-sheet, vide Ext. Ka.-15, against the appellants and others.

Record further reflects that postmortem examination on the cadaver of the deceased- Sadhu Singh was done at the mortuary Etah, on 28.7.1987 at 2.00 P.M. by Dr. Satya Mitra who noted seven ante mortem injuries as ut infra:-

1. Incised wound 5 cm x 1 cm x skin deep in front of the left ear.

2. Incised wound 7 cm x 1 cm x cartilage deep on the left pinna extending upto neck and pinna was found cut through and through.

3. Incised wound 6 cm x 1 cm x bone deep on the left mastoid area.

4. Incised wound 3 cm x .5 cm x muscle deep on the left side middle of neck, 2 cm below injury no. 3.

5. Incised wound 4 cm x 0.7 cm x muscle deep, left side neck, 1 cm below injury no. 4.

6. Incised wound 5 cm x 1 cm x muscle deep on the left side neck, just below injury no. 5.

7. Incised wound 15 cm x 10 cm x trachea deep, trachea and great vessels of neck cut through and through on the front of neck, middle and lower neck were extending on left side.

Duration was stated to be about 3-4th day and in the opinion of the doctor, cause of death was due to shock, haemorrhage and asphyxia as a result of ante mortem injuries. This examination report has been proved by Dr. Satya Mitra vide Ext. Ka.-4.

The case of the appellants was committed to the court of Sessions from where it was made over for trial and disposal to the aforesaid trial court. The trial court, after hearing the accused and the prosecution on point of charge, was satisfied with prima facie case for the offence under section 302/34 I.P.C. and consequently framed charge against accused persons under aforesaid section of I.P.C. The charge which was read over and explained to the accused who abjured the charge and claimed to be tried.

In turn, prosecution was asked to adduce its testimony in order to prove the guilt. The prosecution produced in all 6 witnesses out of whom, three are witnesses of fact and the rest three are formal witnesses. Brief reference of the six prosecution witnesses is ut-infra:-

Kayam Singh P.W. 1 is the first informant and eye witness of fact of occurrence. He has proved written report Ext. Ka.-1 Rachhapal Singh P.W. 2 and Anar Singh P.W. 3 are the two witnesses of fact and claim to have seen the occurrence. Constable Narendrapal Singh P.W. 4 has entered relevant entries in the concerned check first information report and concerned general diary and has proved Exhibits Ka.-2 and Ka.-3 respectively. Dr. Satya Mitra P.W. 5 has conducted post mortem examination on the cadaver of the deceased on 28.7.1987. He has proved post mortem report Ext. Ka.-4. Investigating Officer-Yogendra Singh P.W. 6 has detailed about various steps he took in completing the investigation and has filed charge sheet, vide Ext. Ka.-15 against the accused persons.

After recording testimony of aforesaid six witnesses, no further evidence was adduced by the prosecution, therefore, evidence for the prosecution was closed and the statement of the accused persons was recorded under section 313 Cr.P.C. wherein they have claimed to have been falsely implicated in the case on account of enmity.

The defence did not lead any evidence.

The learned trial court after hearing both the sides on merit of the case and after appraising the facts and evaluating evidence on record returned finding of conviction and sentenced both the appellants to life imprisonment under Section 302/34 IPC.

Consequently, this appeal.

It has been vehemently contended on behalf of the appellants that the incident in fact was not witnessed by any of the prosecution witnesses and the first information report is ante-timed. The inordinate delay in lodging the F.I.R. for over seven hours after the incident, has not been properly explained and under facts and circumstances and in the face of evidence of prosecution witness of fact that after the incident he kept on waiting for 2-4 hours is beyond one's reason and one cannot understand such long waiting gesture on the part of the prosecution witnesses, when the deceased Sadhu Singh had expired. This denotes unnatural conduct on the part of the prosecution witnesses of fact. Reality is that these prosecution witnesses were not present at all on the spot and in case they would have been so present, then they would have normally reacted to the situation like an ordinary prudent man, which they never did. The style and manner of the incident has not been witnessed by anyone and this is admitted position. The so-called eye account testimony is nothing but result of tutoring and deliberation at the instance of the police. The police itself obtained one signed paper from Indrapal and then roped in the appellants in this case. There are material contradictions in the testimonial account of the incident, as emanating from the testimony of prosecution witnesses of fact. One of the prosecution witnesses says that he first entered inside the room (thar) where he found deep cut on Sadhu Singh's neck and he had died and then the witnesses gave pursuit to the assailants towards the Arind river whereas the other witnesses' account hold otherwise. Course of events indicate that after hearing the shriek/noise from the room (thar), they rushed towards the room (thar) where they saw three assailants coming out of the room (thar) and fleeing away towards river. They chased them about 100 paces when the assailants fired on them and made their escape good. Then the witnesses came back to the room and saw Sadhu Singh lying dead with deep cut on his neck. Thus, the version of the prosecution witnesses of fact materially contradicts each other which factual aspect is indicative of truth that no one saw the incident.

Police interference in the case is obvious when one of the witnesses categorically states that Daroga Ji had got some paper signed by Inderpal- the scribe- of F.I.R. and this paper was blank and Daroga Ji took this paper with him. Lastly, asserted that assuming it to be that the F.I.R. was written in the manner and style claimed by the prosecution, even then things were manipulated at the police station when PW-1, the first informant, admits in the last line of the F.I.R.,- that they came to the police station after concealing their identity, was written in the report at the police station. Thus, manipulation in F.I.R. is obvious. The prosecution has not been able to prove its case beyond reasonable doubt and the trial court erred; while recording finding of conviction which finding is, on the face shaky, and untenable based on conjecture, and the same is liable to be rejected on all counts.

Per contra, learned A.G.A. retorted that the case of the prosecution is consistently proved. The very motive for committing the offence is proved. The assailants were seen on the spot when they were running away from the room (thar) and as soon as the prosecution witnesses entered in the room, they found Sadhu Singh dead on the spot and thereafter, first information report was lodged. There is no inordinate delay in lodging the F.I.R. The informant is poor rustic villager; he does not know technicalities of law, therefore, he must have taken some time to overcome his grief over the death of Sadhu Singh and when he mustered courage and also controlled his senses, then he lodged the F.I.R. at the police station. Lodging of the first information report has been corroborated by the concerned moharir constable, who has proved that informant Kayam Singh came to the police station on 28.7.1987 and gave report for lodging first information report and then first information report was noted down and the case was registered in the concerned G.D. Postmortem report also confirms possibility of death being caused by use of the weapon- dibber (khurpi). The proximity between the time of death of deceased simultaneously with the presence of the accused on the spot is such a strong circumstance, which, in all probability, gives rise to only fact that the accused persons have committed the crime.

The case of the prosecution is proved to the hilt. There is no doubt, either express or implicit, in the testimony of the prosecution witnesses, and the same being consistent inspires confidence and appears to be in consonance with the prosecution version.

We have also considered the rival submissions and specific rival claims. The core consideration that crops up for adjudication of the appeal relates to fact whether the prosecution has been able to prove beyond reasonable doubt charge against appellants and the trial court has based its finding of conviction on evidence on record?

Perusal of the first information report, Exhibit Ka-2, reveals that the incidence occurred around 6:00 p.m. in village Hanspur and as per the contents of F.I.R., the day of incident is 27.7.1987. On that date, deceased Sadhu Singh who was employed as conductor in Roadways Department, had come to his village Hanspur, hamlet of Gehetu was talking to the first informant and others around 4:00 p.m. in the courtyard of his house. It was around 5:00 p.m. when mother of Gyan Singh @ Ginna came to him and said that her sons are calling him for settling account for borrowed money, which her son had taken from Sadhu Singh (deceased). Sadhu Singh accompanied mother of Ginna and went to the place where tube-well of Ginna and Munna is installed. The brother-in-law of Munna and Ginna, Mahavir Singh s/o Chotey Singh was also present over there. They began to talk for settling the debt. After about half an hour, the first informant went to the place where debt settlement talk was going on to know about development when he overheard Sadhu Singh saying to Ginna that he should give his buffalo to him in exchange and that will be in settlement of loaning transaction in lieu of the borrowed money by the accused persons (Munna and Ginna). Proposal was refused by Ginna that he will take only cash amount for his buffalo and said that he will pay back entire loan amount in the month of 'Kartik'. Thereafter, the informant returned back to his thar/home. It was around 6:00 p.m. that Ginna, Munna and Mahavir Singh took Sadhu Singh inside the room near the tubewell. Sadhu Singh shrieked. The first informant and others present over there were startled and became apprehensive. They rushed towards the place of occurrence. On way, they saw Munna's mother rushing away from the thar/place of occurrence towards village and the three assailants- Ginna, Munna and Mahavir Singh coming out of their thar (place of occurrence) and fleeing away towards Arind river. While so fleeing away, Ginna left behind his slippers. It has been stated that their clothes were blood-stained. Some firing was also done by the assailants while in the process of fleeing away. The first informant along with others returned to the room from where shriek was heard. Then they saw Sadhu Singh lying dead and saw two blood-stained dibbers (khurpi) and one towel (angocha) lying over there.

In this particular factual background of this case, it would be desirable to have scrutiny of the prosecution witnesses of fact. In that process, we have to evaluate the evidenciary value of ocular testimony of the occurrence. Kayam Singh, PW-1 no doubt is the informant and witness of fact. After hearing shrieks, he along with others rushed towards the place of occurrence where he saw Munna's mother scampering towards the village from the place of occurrence and Ginna, Munna and Mahavir Singh fleeing away after coming out of the room (thar), towards Arind river. He has been cross-examined by the defense, wherein he has been confronted initially on fact that some case of dacoity has been registered against this witness at the instance of wife of Lakhan Singh (Gayatri)- as the informant- which fact has been admitted in reply with specification that the case has been registered against 15 persons and in this case (of dacoity),the time of occurrence has been given as 4:00 p.m. on 27.7.1987. This witness admits fact that this case is still under process. He has submitted that when he arrived at the spot, he saw the assailants fleeing away from the scene towards Arind river and this witness along with others chased the assailants whereupon Ginna fired two shots on them. However, no cartridge has been recovered from the spot. It has also been claimed that the firing so done did not cause any harm. On page 16 of the paper book in para no. 12 of testimony of PW-1, it has emerged that after chasing the asssailants- Ginna, Munna and Mahavir Singh- the first informant came back within 2-4 minutes and they kept on waiting at the place of occurrence for about 2-4 hours and more or less similar testimony has come forth from the other prosecution witnesses of fact - say Rachhpal Singh PW-2 and Anar Singh PW-3. It is, under such facts and circumstances of the case, obvious that the incident took place around 6:00 p.m. and the first informant along with other witnesses must have reached back at the spot with 5-10 minutes after pursuit for the assailants was over, where Sadhu Singh was lying dead, but how and why they kept on waiting for 2-4 hours, is beyond comprehension of an ordinary prudent man. No satisfactory reason or circumstance has been ascribed, as the very cause for such long waiting because it was month of July and when they would have come back after the pursuit was over, it must have been around 6:30 p.m. when sufficient light was expected to have been available, then under normal circumstance an ordinary prudent man would hardly wait for night to fall in, rather he would promptly swing into action so as to accomplish reporting process i.e., information to the police at the earliest. To keep on waiting for 2-4 hours, under circumstances, generates doubt in the claim of the prosecution that they were present on the spot at the time of occurrence. However delay in lodging FIR suggests that they arrived on the spot after the occurrence or that they came to know about the incident from their own source and they arrived on the spot late in the night sometime around 10:00 p.m. and only then they initiated action for lodging report. Testimony on the point of lodging of first information report overwhelmingly indicates that the first informant reached at the police station after 12 midnight and prior to 12:30 a.m. on 28.7.1987. Constable Narendra Pal Singh PW-4, who has proved lodging of the F.I.R. Exhibit Ka-2 and the concerned G.D. Entry Exhibit Ka-3 has stated that he lodged the F.I.R. at 1:00 a.m. on 28.7.1987. Though, in this case, lodging of the F.I.R. is at inordinate delay itself but that alone is not sufficient to disbelieve prosecution story. But under attendant circumstances, this inordinate delay assumes graver importance for the reason that in between this time gap from 6:00 p.m. on 27.8.1987 to 1:00 a.m. on 28.8.1987, things could have been managed easily both by the first informant and by the police. Therefore, delay in lodging the F.I.R. here becomes relevant when we scrutinize other relevant facts and circumstances of the case qua testimony on record. Here, we come across testimony of Rachpal Singh, PW-2. In para no. 10 of his testimony, he has categorically stated that after the dead body was taken away, Daroga Ji got scribed one paper by Indrapal and the witness PW-2 can not say whether Daroga Ji had obtained signature of Kayam Singh on this paper. This specific testimony has surfaced in the cross-examination of PW-2 and it assumes vital importance for the reason that Daroga Ji had got scribed one paper from Indrapal and took it with him. Indrapal is admittedly the scribe of written information.

We also come across testimony of Kayam Singh PW-1, on page-17 of the paper book, to the magnitude that he clandestinely came to the police station to lodge the FIR. However, these words appear in the ending part of the F.I.R. but on the same page 17 of the paper book, it has also been testified that at the time of arrival of Daroga Ji in the village, Indrapal was also present in the village and the words that the first informant clandestinely came to the police station to lodge the report was added at the police station- also assumes greater relevance in the sense that Indrapal was, at that point of time when such line was added in the written report, not present inside the police station. Here, police interference is overwhelmingly established. How and why this word was added that the first informant out of fear clandestinely came to lodge the report was sought to be included in the first information, has not been clarified by the prosecution. It signifies fact that the police interfered in the circumstance, to bring coherence in the timing of the occurrence and the lodging of the first information report, which on the face appeared inordinate; which effort stands exposed in the absence of any worthy explanation. The story of firing being done by the accused persons is also not corroborated by any independent testimony and no cartridges whatsoever were recovered from the spot. No doubt, Daroga Ji took simple clay-roll and blood-stained clay-roll from the spot and the towel (Angocha) but as per testimony of the Investigating Officer Yogendra Singh, PW-6- these blood-stained things were not sent for chemical examination to the Forensic Science Laboratory. Therefore, this aspect of the case also weakens case of the prosecution rather than giving any thrust to it. The I.O. himself has stated on page-32 of the paper book that he did not find any cartridges on the spot. Obviously, fact of report of dacoity being lodged against the informant side by one Gaytri well in time prior to the contextual occurrence in hand at 4:00 p.m. on 27.8.1987, also generates lot of doubt that the first informant when unable to know names of the real assailants thought it appropriate to name the present appellants, as the perpetrators of the crime on account of enmity, and the task was easily achieved with the indulgence of the concerned police personnel. Though, the enmity imputed as motive has its seeds in lending of money by Sadhu Singh to the accused Ginna and Munna, but the fact alone would not decisively account for the accused being the perpetrators in the absence of clinching testimony of the prosecution witnesses.

Not only this, the prosecution testimony on record, but also on specific description of incident is varying to the ambit that when the prosecution witnesses saw the assailants, they straightway gave pursuit to them up to the Arind river. But Anar Singh, PW-3 says that the assailants fled away towards the river and they came inside the room where they saw neck of Sadhu Singh bearing deep cut and then they came out and chased the assailants. This piece of testimony contradicts testimony of PW-1 and PW-2 on the face when they say that they straightway after seeing the assailants fleeing away chased the assailants and after the chase was over after 2-4 minutes, they came back only then they saw Sadhu Singh lying dead in the room. Such contradictory, testimonial version makes prosecution story doubtful and speaks about unworthiness of the witnesses apart from fact that the prosecution story appears to be full of loopholes and it lacks consistency and fraught with dubious testimonial divulgences on vital aspects of the occurrence which by itself is not sufficient to travel beyond periphery of reasonable doubt and cannot be taken to be sufficient in establishing charge beyond reasonable doubt and it cannot be said that the prosecution story has been established satisfactorily.

We notice that no reasonable explanation has been extended for various loopholes appearing in the prosecution story and that on the face make serious dent in the prosecution story.

The learned trial Judge while appreciating evidence and marshalling facts of the case and assessing various circumstances failed to take note of these inconsistencies in the case, which hit at the root of the charge and the prosecution case and show that the testimony of prosecution witnesses of fact is full of embellishments and improvements and contradictory in material particulars. Consequently, the judgment and order of conviction dated 9th May 1991 passed by the IInd Additional Sessions Judge, Etah in Sessions Trial No. 552 of 1988-State Vs. Munna and others, arising out of case crime no. 35 of 1987, under section 302/34 I.P.C Police Station Nidhauli Kalan district Etah is not sustainable in the eye of law and the same is set aside and the appeal is allowed. The appellants are exonerated of charge under Section 302/34 I.P.C.

Both the appellants are on bail. They need not surrender. Their bail bonds are hereby canceled and sureties are discharged. However, they will comply with the provisions of Section 437-A Cr.P.C.

Let a copy of this order be certified to the lower court for intimation and follow up action.

Dt.28.11.2016

Raj/Ishan.