Ninu Singh vs State Of U.P.
2017 Latest Caselaw 1577 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 40							AFR
 
Case :- CRIMINAL APPEAL No. - 2805 of 2006
 
Appellant :- Ninu Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ram Bhawan,C.B.Verma,R,L.Verma
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bala Krishna Narayana, J
 
Hon'ble Krishna Pratap Singh,J.

(Delivered by Hon'ble Krishna Pratap Singh, J)

The argument of this case was concluded on 02.6.2017. We then passed the following order:

"Heard lerned counsel for the appellant and learned AGA for the State.

We will give reasons later. But we are making the operative order here and now.

The appeal is allowed. Imugned judgment and order dated 25.4.2006 passed by learned Sessions Judge, Shahjahanpur in Sessions Trial No. 572 of 2005 (State Vs. Ninu Singh) arising out of Case Crime No. 21 of 2005, under section 302 IPC, Police Station Sehramau South, District Shahjahanpur is hereby set aside. The appellant is acquitted of all the charges.

The appellant namely Ninu Singh is on bail. He need not surrender. His bail bonds are cancelled and his sureties discharged. However, he will comply with the provisions of Section 437-A Cr.P.C."

Here are the reasons: This criminal appeal has been filed against a judgement and order dated 25.4.2006 passed by the learned Sessions Judge, Shahjahanpur in ST No. 572 of 2005 arising out of crime No. 21 of 2005 whereby the accused-appellant has been convicted and sentenced to life imprisonment under section 302 IPC, police station Sehramau South, district Shahjahanpur.

In short compass, the facts giving rise to the instant appeal are that on 08.2.2005 at 4.00 PM a written report was handed over by the informant-Yakoob (Ext. Ka-1) at the police station Sehramau South, Shahjahanpur to the effect that on the same day his younger sister-in-law (Bhabhi) Smt. Zahida wife of late Rafi had gone to the field to whittle sugarcane. After a while, he had also gone to whittle sugarcane. On hearing the noise at the tubewell of Sushil Thakur, when he reached there, he saw that in the field of wheat belonging to Sushil Thakur, Ninu, son of Vijay Kumar, resident of his village, was sitting on Zahida and assaulting her with knife. When he made hue and cry, several persons of the village arrived there. On seeing them, the accused ran away from the spot with the knife. The incident took place at 10.00 AM. When the complainant and other villagers went near the spot, his sister-in-law was dead.

On the basis of the aforesaid written report, a case was registered at crime No. 21 of 2005, under section 302 IPC against the sole accused Ninu Singh.

After registration of the case, the investigation of the case was entrusted to SI Om Pal Singh, PW-3, who inspected the spot and prepared inquest report of the dead body (Ext.Ka-4), photo lash (Ext. Ka-5) and letter to Chief Medical Superintendent (Ext. Ka 7). Thereafter, the investigating officer has recorded the statement of the first informant-Yakoob and on his pointing out, he prepared the site plan in his handwriting and signature, which he proved as (Ext. Ka-8). He collected the plain and bloodstained earth and prepared their memos in his handwriting and signature on which he also got the signatures of the witnesses, which he proved as (Ext. Ka-9). He also took in possession the clothes of the victim and prepared their memos. This witness has further deposed that except bra, there was no other cloth on the body of the deceased. Beside the body of the deceased, one black bloodstained muffler and one bloodstained jacket of the accused were also lying, which were taken in possession and their (Fards) memos were prepared, which he proved as Ext. Ka-11.

Till 09.2.2005, the investigation was conducted by this witness PW-3 SI Om Pl Singh. Thereafter the investigation was conducted by Station Officer Sehramau South Shri Subedar Singh, who after recording of the statement of PW 2 Abrar Ali and other witnesses and after completing the investigation, submitted the charge sheet against the accused (Ext. Ka-12), under section 302 IPC.

Since the matter was exclusively triable by the court of Sessions, learned Magistrate committed the case to the court of sessions on 10.6.2015 where the case was registered as ST No. 572 of 2005. On 24.6.2005, charges were framed against the accused Ninu Singh under section 302 IPC by the learned Sessions Judge, Shahjahanpur.

In order to bring home the guilt of the appellant, the prosecution has examined as many as four witnesses, out of which PW-1 Yakoob and PW-2 Abrar Ali were the witnesses of facts and remaining two witnesses namely PW-3, SI Om Pal Singh and PW-4, Dr. Pushpendra Kumar were the formal witnesses.

PW-1 Yakoob is the first informant of the case. He reiterated his version given in the FIR. He further deposed that the accused was also assaulting his sisteter-in-law (Bhabhi), the deceased with brick and Danda. When he made a noise, then Abrar and several other persons had also reached there. He also deposed that the incident took place at 10.00 AM. After the incident, the accused ran away towards the north with knife. When he went near the deceased, she was dead. Besides him, Abrar also witnessed the incident. He got the report of the incident scribed by one Naresh Pal Tewari and put his thumb impression on it and handed over at the police station Sehramau. He proved his report as (Ext. Ka-1).

PW 2-Abrar Ali deposed that on the day of incident, the deceased was going when he was whittling sugarcane. At 10.00 AM, there was a noise near the tubewell of Sushil. When he rushed there, he saw that deceased was lying on the ground and the accused was pressing her neck. He further deposed that when he reached the spot, the accused made his escape good. Yakoob also reached at the spot. The accused assaulted the deceased with knife, brick and Danda. The accused also pressed the neck of the deceased.

The evidence of PW-3, SI Om Pal Singh, the first investigating officer has already been discussed above.

PW-4, Dr. Pushpendra Kumar, deposed that on 09.2.2005 he was posted at district Hospital, Shahjahanpur as Medical Officer. On that day at about 3.15 PM, he conducted the post-mortem examination on the body of the deceased-Zahida, wife of late Rafi (Ext. Ka-13). The deceased was of average built. Rigor mortis was passing on upper limb and present in lower limb. PM staining present in back. Both the eyes were congested, clotted blood present. Mouth and nostril face congested.

He found the following ante-mortem injuries on the body of the deceased:

1. Lacerated wound 2.0 cm x 0.5 cm x bone deep present on the top of forehead 3.0 cm above the root of nose.

2. Contusion 6.0 cm x 4.0 cm present left side of face just below the lower eye lid.

3. Abrasion and contusion 2.0 cm x 1.0 cm preent right side of face 3.0 cm below the outer angle of right eye.

4. Contusion 3.0 cm x 2.0 cm present upper part of right face just below the right lower eye lid.

5. Abrasion and contusion 4.0 cm x 2.0 cm present on the chin.

6. Lacerated wound 1.0 cm x 0.5 cm x muscle deep right side of upper lip.

7. Lacerated wound 1.0 cm x 0.5 cm right side of lower lip.

8. Multiple abrasion cresentric in shape on an area of 10 cm x 4.0 cm present on the front of neck.

9. Contusion 2.00 cm x 1.0 cm present on the left upper arm 5.00 cm on the top of shoulder.

10. Incised wound 3.0 cm x 1.0 cm x bone deep present on right dorsomedial sphere of right forearm.

On internal examination, doctor found that larynx, trachea ring and hyoid bone were fractured and congested. Both the lungs were congested. Small intestine was empty, whereas large intestine contained faecal matter. Spleen and kidneys were also congested. In the opinion of the doctor, the death was caused due to asphysia as a result of ante-mortem throttling.

Slide of vaginal smear was prepared and sent to the pathology of Department of District Hospital.

After the close of the evidence, the statement of the accused was recorded under section 313 Cr.P.C, in which he denied the charges levelled against him and claimed to be tried. He further stated that he has an enimical term with Sushil, due to which Sushil got him falsely implicated in this case. However, he adduced no evidence either oral or documentary.

The learned Sessions Judge, Shahjahanpur after perusing the record and hearing the counsel for the parties came to the conclusion that prosecution had established its charge of murder to the hilt against appellant and, therefore, convicted and sentenced him to life imprisonment under section 302 IPC, police station Sehramau South, district Shahjahanpur vide judgement and order 25.4.2006, hence this appeal questioning the said judgement.

We have heard learned counsel for the appellant, learned Additional Government Advocate for the State-respondent and perused the record of the case.

Learned counsel for the appellant has submitted that the incident took place on 08.2.2005 at 10.00 AM, but the first information report was lodged on the same day at about 4.00 PM. Thus, there was delay in lodging the first information report and the same was not properly explained.

It was further submitted that there is conflict between the medical evidence and the ocular evidence. Eye-witnesses are interested and relative witnesses and hence their testimonies cannot be relied upon. It was also submitted that the deceased was done to death by some unknown person and the accused- appellant was falsely implicated in the instant case with the collusion of one Sushil Thakur.

Referring to the contradictions and omissions occurred in the statements of the eye-witnesses, it was submitted that Yakoob, PW-1 and Abrar Ali, PW-2 were not eye-witnesses and they were procured later on only to falsely implicate the accused-appellant in the present case and the whole prosecution story is improbable and unnatural.

Per contra, learned Additional Additional Government Advocate has submitted that the first information report was prepared on the same day and the delay in lodging the FIR has been properly explained. It was further submitted that eye-witnesses are the residents of the same village and locality. Medical evidence fully supports the prosecution case. There is no contradiction between the medical evidence and oral evidence.

Learned AGA also submitted that informant-Yakoob, PW-1 and Abrar Ali, PW-2 were present at the spot at the time of occurrence. It is further submitted that non-mentioning of name of Abrar Ali, PW-2 in the first information report will not place him in the category of suspicious and unreliable witnesses. Contradictions, omissions, improvements and latches are of minor nature and do not go to the root of the prosecution case and the same may be ignored. The finding of the trial court is based on evidence available on record.

In the present case, offence is said to have been committed on 08.2.2005 at 10.00 AM and the first information report was lodged on the same day at 4.00 PM. The distance between the place of occurrence and the concerned police station is 3 kms. towards west. Informant-Yakoob, PW-1 is the Jeth of the deceased Zahida. Thus, the FIR was lodged after about six hours of the incident and the informant has not properly explained the delay in lodging the first information report. In the cross-examination, the informant-Yakoob, PW-1 has stated that he reached the police station for lodging the FIR at 7.00 PM, so it was not possible to register the case at 4.00 PM. In the first information report the informant-Yakoob, PW-1 has not mentioned that due to fear or any other reasons, he could not lodge the FIR promptly. In his statement he has not deposed the same fact. To meet out the delay in lodging the FIR, there is nothing either in the first information report or in the statement of the informant-Yakoob, PW-1.

Learned counsel for the accused-appellant has submitted that in fact the incident had taken place any time in the night. According to the statement of Dr. Pushpendra Kumar, PW-4, the death of the deceased may have been caused on 08.2.2005 at about 3.15 AM. There is substance in the submissions of learned counsel for the accused-appellant that in fact the incident had taken place any time in the night and no body had seen the occurrence and when informant Yakoob, PW-1 received the information at about 10.00 AM, the first information report against the accused-appellant was lodged after consultation and due deliberation.

If the submissions advanced by the learned counsel for the accused-appellant are minutely considered in consonance with the statements of prosecution witnesses and the evidence available on record, it emerges that the incident had taken place in the light of the day at 10.00 AM in the field where villagers were working in their field and the distance of concerned police station is only 3 kms. from the place of incident. The prosecution has also not come with the plea that accused-appellant had threatened him to desist from lodging the FIR. It also does not appear from the record that the informant-Yakoob PW-1 had tried to proceed to the police station for lodging the FIR and accused-appellant prevented him from doing so.

Considering the facts and circumstances of the present case, in our view, the conduct of the informant-Yakoob, PW-1 was unnatural and improbable that he did not proceed to lodge the FIR immediately after the incident. On re-appreciation of the prosecution evidence, it can safely be held that reason explained by the prosecution for delay in lodging the FIR is not plausible and same is fatal for the prosecution.

Prompt and early reporting of the occurrence by the informant with all its details given and assurance regarding truth of its version. In the present case where there is a delay in lodging the FIR, the informant must give explanation for the same. Undoubtedly, delay in lodging FIR does not make prosecution case improbable when such delay is properly explained, but deliberate delay in lodging the FIR is always fatal.

In cases where there is delay in lodging FIR, the court has to look for a plausible explanation for such delay. In absence of such an explanation, delay may be fatal. The finding recorded by the trial court in this regard is not in accordance with the evidence available on record and same requires interference. The trial court has also not correctly appreciated the prosecution evidence on this point. So for the reasons mentioned above, the genuineness of the first information report becomes suspicious.

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."

In the light of the above pronouncements of Hon'ble Apex Court, we have gone through the evidence adduced by the prosecution. It appears that the trial court had accepted every explanation given by the prosecution without considering its evidentiary value. So the delay in lodging the first information report creates doubt about the case of the prosecution and the testimonies of the eye-witnesses.

The prosecution case mainly depends upon the alleged eyewitness account namely Yakoob, PW-1 and Abrar Ali, PW-2. We would like to re-appraise their testimonies to draw the conclusion as to whether their presence on the spot at the time of occurrence has been established by the prosecution and whether their testimonies are trustworthy, credible and believable and whether their conduct is natural and in accordance with ordinary human conduct or otherwise. In the FIR, the informant Yakoob, PW-1 claimed himself as eyewitness. He has deposed that accusd-appellant was assaulting his sister-in-law (Bhabhi), the deceased with brick and Danda and when he made a noise, then Abrar Ali, PW-2 and severarl other persons have reached there. He also deposed that incident took place at 10.00 AM and after the incident the accused-appellant ran away towards north with knife. When he reached near the deceased, she was dead. Besides him, Abrar Ali, PW-2 also witnessed the incident. He got the report of the incident scribed by one Naresh Pal Tewari and put his thumb impression on it and handed over it at the police station Sehramau, district Shahjahanpur. He also proved his report as Ext. Ka-1.

Abrar Ali, PW 2 is the nephew of the informant Yakoob, PW-1. He has deposed that on the day of incident, the deceased was going when he was whittling sugarcane at 10.00 AM, there was a noise near the tubewell of Sushil and when he rushed there, he saw that deceased was lying on the ground and accused was pressing her neck. He further deposed that when he reached the spot, the accused made his escape good. Yakoob, PW-1 also reached at the spot. He also deposed that accused-appellant also pressed the neck of the deceased. Abrar Ali, PW-2 also claimed himself as eyewitness, but in the FIR his name was not mentioned as eyewitness. This fact creates doubt about the presence of Abrar Ali, PW-2 on the spot at the time of occurrence. If he was present on the spot at the time of occurrence, he would have definitely named himself to be one in the FIR itself. Hence, presence of both the aforesaid witnesses on the spot is doubtful.

A perusal of the post-mortem report of the deceased shows that deceased had received as many as ten ante-mortem injuries. The assailant must have taken some time in causing so many injuries to the deceased and this much time was sufficient for the witnesses to witness the incident from the place where they were present and to reach the place of occurrence. It is not a case of single blow where after giving single blow the accused ran away. Informant-Yakoob, PW-1 in his cross-examination has deposed that when he reached at the spot, body of the deceased was lying naked on the ground. Her clothes were not torn. He was present on the spot till 10-11 in the night. He left the spot when the body of the deceased had been sent from the place of occurrence. The testimonies of the informant Yakoob, PW-1 and Abrar Ali, PW-2 show that they did not try to save the deceased though there was sufficient time for them to reach the place of occurrence. Thus, their conduct was not natural and also not in accordance with the ordinary human conduct.

Informant-Yakoob, PW-1 is the elder brother of the husband of the deceased (Jeth) and Abrar Ali, PW-2 is the nephew of Yakoob. So both the aforesaid witnesses are interested and related witnesses. In the case of related witnesses, the courts are required to scrutinize their testimonies with anxious care to find out whether their testimonies inspire confidence notwithstanding the existence of relationship. Testimony of eye-witness, which is otherwise convincing and consistence cannot be discarded only on the ground that deceased was related to the eye-witnesses.

These facts are required to be ascertained on the facts of the each case. We have seen that the presence of Yakoob, PW-1 and Abrar Ali, PW-2 on the spot is doubtful. On close scrutiny of their testimonies with anxious care, we are of the view that testimonies of these witnesses are neither consistent nor convincing and also do not inspire confidence to beacceptable. Therefore, it can safely be said that these witnesses are interested and had falsely roped the accused-appellant in this case on the basis of concocted story. Due to this reason, it appears that the first information report was lodged after due consultation belatedly in the evening at 4.00 PM.

The investigating officer is said to have taken bloodstained earth and plain earth from the place of occurrence, but the same was not sent to the Forensic Science Laboratory for chemical examination. One muffler and jacket were also recovered by the investigating officer from the place of occurrence, but the informant Yakoob, PW-1 and Abrar Ali, PW-2 have not deposed that these clothes belong to the accused-appellant

Hon'ble Apex Court in Kailash Gour and others Vs. State of Assam, 2012 (78) ACC 970 (SC) has held that "an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the altar of inefficiency, inadequacy or inept handling of the investigation by the police. The benefit arising from any such faulty investigation ought to go to the accused and not to the prosecution."

According to the first information report the death of the deceased was caused by giving knife blow, but in the statements of the informant Yakoob, PW-1 and Abrar Ali, PW-2, they deposed that accused-appellant had also given blows to the deceased by brick and Danda. Ante-mortem injuries of the deceased show that injuries No. 1 to 8 are lacerated contusion and abbrasion and might be caused by the piece of brick and Danda. Only injury No. 10 may be caused by knife. On the contrary both the eye-witnesses have deposed that accused-appellant had caused injuries to the deceased by brick and Danda also. These improvements made by the witnesses are sufficient to hold their testimonies untrustworty and unreliable. If the entire facts and circumstances of the case and the evidence available on record are considered and appreciated cumulatively, it is clear that the first information report was lodged belatedly and no plausible explanation was given by the prosecution, which creates doubt about the truthfullness of the prosecution story. Presence of witnesses on the spot at the time of occurrence is also highly doubtful. Omissions and latches on the part of investigating officer in the present case vitally affects the prosecution case.

Thus, on the basis of foregoing discussion, we are of the view that the findings of the trial court on the point of delayed FIR, medical evidence, presence of eye-witnesses on the spot and investigation in the present case are not correct and same are perverse. The trial court has not rightly appreciated the evidence available on record and reached to a wrong conclusion holding the accused-appellant guilty for committing the murder of the deceased-Zahida. The pleas taken by the accused-appellant appear more probable in this case. So taking into account the entire facts and circumstances of the case and considering the evidence on record, we are of the view that the prosecution has not been able to establish the case against the accused-appellant beyond all reasonable doubt. Therefore, the accused-appellant is entitled for the benefit of doubt on the ground of rule of caution.

In view of the above discussion, we are of the view that the prosecution has failed to establish the guilt of the accused-appellant under section 302 IPC beyond all reasonable doubt and the satisfaction of the judicial conscience of the Court. The impugned judgement and order of conviction and sentence dated 25.4.2006, which has been sought to be assailed, calls for and deserve interference.

Office is directed to transmit a copy of this order to the learned Sessions Judge, Shahjahanpur and compliance report be submitted to this Court also.

Office is also directed to send back the record of the trial court immediately.

These are the reasons upon which we set aside the impugned judgement and order.

Dated: 02.6.2017

Ishrat