Atar Singh vs State Of U.P.
2017 Latest Caselaw 1184 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 44								       Reserved
 

 
Case :- CRIMINAL APPEAL No. - 7316 of 2007
 

 
Appellant :- Atar Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Neeraj Singh, Tripurari Pal
 
Counsel for Respondent :- Govt. Advocate
 
And
 
Case :- CRIMINAL APPEAL No. - 7055 of 2007
 

 
Appellant :- Desha @ Desh Raj & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Shodan Singh, Arvind Kumar Srivastava (AC), Kartikeya Saran, Mohd Aslam Khan, Mukhtar Alam, Shamsher Bahadur Maurya, Sunil Kumar Tiwari
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Shailendra Kumar Agrawal,J.

(Delivered by Hon'ble Shailendra Kumar Agrawal, J.)

1. Criminal Appeal No.7316 of 2007 by the accused-appellant Atar Singh and Criminal Appeal No.7055 of 2007 by accused-appellants Desha alias Desh Raj and Veer Singh have been filed challenging the impugned judgment and order dated 29.09.2007 passed by Additional Sessions Judge, Court No.9, District- Muzaffar Nagar in Sessions Trial No.1225 of 2002 (State of U.P. Vs. Desha alias Desh Raj and others); Crime No.92 of 2002, Police Station Kakrauli, District Muzaffar Nagar, whereby all the accused-appellants were convicted and sentenced under Section 302 read with Section 34 IPC with life imprisonment along with fine of Rs.20,000/- each and in case of default in payment of fine to further undergo two years' additional imprisonment each. As both the appeals arise out of a common judgment dated 29.09.2007, they were heard together and are being decided together.

2. The brief facts of the case are that a written report Ex. Ka-1 written by Randhir Singh (DW-3) was given by the complainant Rajveer (PW-1) at the police station alleging that on 09.07.2002 at about 7:00 p.m., Sahendri, wife of the informant and his daughter Pinki aged about 15 years went towards fields to dump the garbage and to attend the call of nature. After throwing the garbage, they were sitting at a little distance to attend the call of nature. At that moment his daughter Pinki screamed, whereupon his wife also raised alarm. Hearing the commotion of his daughter and wife, informant along with neighbours ran towards that place and saw that his daughter Pinki was being dragged, with an intention to ravish her, by the accused-appellants towards the field of one Atar Singh son of Jaggan Singh. When his daughter Pinki resisted, they murdered her by assaulting on her neck and face and pressing the neck. Seeing the complainant and others coming towards them, accused-appellants ran away towards east leaving his daughter in the field of Atar Singh. When the complainant saw his daughter, she was already dead. The corpse of Pinki was brought to the house of complainant.

3. On the basis of written report Ex. Ka-1 of informant Rajvir Singh, PW-5 S.I. Karna Singh registered a Chik F.I.R. Ex. Ka-4 in case crime no.92 of 2002, under Section 302 IPC, which was entered in G.D. No.27 time 21.15 'o' clock dated 09.07.2002, carbon copy of which is Ex. Ka-5. The investigation was handed over to PW-6 SI Amar Singh, who immediately reached at the house of informant, where corpse of Pinki was lying.

4. The Investigating Officer (I.O.) got prepared inquest report Ex. Ka-6 by HCP Shevraj Singh. Investigating Officer saw that blood was oozing from mouth and nose of cadaver of Pinki. There were marks of injuries on the face and neck. Shrichand, Baburam, Lal Singh, Sanjeev Kumar and Jagbir were appointed as Panchas of the inquest proceeding. Thereafter, the corpse of Pinki was sent for postmortem through CP 469 Kali Charan and CP 1136 Anil Kumar. I.O. also prepared other documents as letter to R.I. Ex. Ka-7, photo nash Ex. Ka-8, challan nash Ex. Ka-9, letters to Chief Medical Officer Ex. Ka-10 and Ka-11 and request letter no.33 Ex. Ka-12 sent by S.S.P., Muzaffar Nagar to Civil Sugeon for conducting postmortem. I.O. also inspected the spot and prepared site plan Ex. Ka-13. The investigation culminated into filing of the charge sheet Ex. Ka-14 against all the accused/ appellants.

5. On 10.07.2002 at about 2.30 p.m. Dr. V.P. Singh (PW-3) conducted postmortem and prepared postmortem report Ex. Ka-2. He found rigor mortis on whole body and Hyde bone was broken. Following ante mortem injuries were found on the corpse of Pinki:

(i) Contusion on neck crossing the trachea on upper part, size 23cm x 4cm, only front part layer. On opening the trachea, hyde bone was broken.

(ii) Abraded contusion on right side face, chin and nose.

(iii) Abraded contusion on left side face whole of cheek size 7cm x 5cm.

On examination of private part - No external injury was seen. Vagina admits two fingers. Swab taken from vagina and two slides were prepared and sent for pathological examination. Lungs, heart, lever, spleen and kidneys were congested.

The cause of death was ascertained asphyxia as a result of pressure on neck.

6. PW-4 Dr. K.K. Agrawal, Senior Pathologist of District Hospital, Muzaffar Nagar examined the slide prepared from vaginal smear on 16.07.2002, but no spermatozoa was detected. He proved the pathological report no.48 of 2002 dated 16.07.2002 as Ex. Ka-3.

7. The learned Magistrate took cognizance on the charge sheet submitted by the police and vide order dated 18.12.2002 the case was committed to the court of Sessions.

8. Learned Addl. Sessions Judge, Court No.2, Muzaffar Nagar framed charge against the accused-appellants on 22.01.2004 for the offence under Section 302 read with Section 34 IPC. All the accused-appellants pleaded not guilty and claimed to be tried.

9. To substantiate the charge, the prosecution has examined following witnesses:-

i. Rajveer Singh, father of the deceased, informant of the case as PW-1;

ii. Smt. Sahendri, eye witness of the incident and mother of the deceased as PW-2,

iii. Dr. V.P. Singh, who conducted the postmortem as PW-3,

iv. Dr. K.K. Agrawal, who prepared pathological report as PW-4,

v. S.I. Karna Singh, scribe of the chik FIR as PW-5,

vi. S.I. Amar Singh, Investigating Officer of the case as PW-6,

10. All accused-appellants in their statement u/s 313 Cr.P.C. have denied all material facts of the prosecution. The witnesses have deposed falsely; the case was initiated due to enmity; accused Desha alias Desh Raj and Veer Singh have stated that they had no concern with the incident and they have been falsely implicated; they have also stated that their flour mills were nearer to each other and due to dispute of flour mills, they have been falsely implicated. Accused Atar Singh has stated that he has grocery shop and on demand of borrowed money, he has been falsely implicated.

11. In their defence, the accused-appellants have produced Sanjeev Kumar, DW-1, Dharmpal, DW-2 and Ranveer Singh DW-3.

12. After scrutinizing and appreciating the evidence, available on record, the learned court below recorded finding of conviction under Section 302 read with Section 34 of I.P.C.

13. Heard Sri Jitendra Kumar, Advocate holding brief of Sri Mohammad Aslam Khan, learned counsel for the appellant Veer Singh, Sri Arvind Kumar Srivastava, learned Amicus Curiae for the appellants Desha @ Desh Raj and Atar Singh and Sri Rajiv Sharma, learned AGA for the State.

14. Learned counsel for the appellants have argued that no independent witness has been produced by the prosecution, only parents PW-1 and PW-2 of the deceased have been produced, who are not trustworthy and did not witness the occurrence; FIR is ante-timed and place of occurrence is uncertain.

15. Per contra learned A.G.A. has submitted that there was no enmity between the parties, therefore, question of false implication does not arise. He has claimed that minor discrepancies would not render the evidence of witnesses untrustworthy; FIR was lodged promptly. Therefore, no opportunity was available to witnesses to concoct the evidence.

16. While appreciating the evidence of any witness claiming to have seen the incident, the Court should consider and look for the following factors appearing in the entire testimony of the witness:

(i) presence of the witness on the spot

(ii) witness having seen the incident

(iii) credibility of the witness.

17. As both the witnesses of fact i.e. PW-1 and PW-2 are family members of the victim of the offence, Court has to adopt a careful approach in analyzing the evidence of such witnesses and if the testimony is not found credible, reliable and trustworthy accused cannot be convicted.

18. Prosecution evidence indicates that when PW-2 Sahendri and her daughter Pinki had gone to throw the garbage and to attend the call of nature at 7.00 PM on 09.07.2002, both were sitting at a little distance. Suddenly Pinki screamed and then Sahendri also made commotion. Hearing the commotion, the informant and villagers ran towards that place and they saw that Pinki was being dragged by accused Desha @ Deshraj, Veer Singh and Atar Singh towards the field of Atar Singh with an intention to violate her, but on her resistance, she was murdered there by all accused by throttling and causing injury on the face by country-made pistol. Accused Desha was armed with country-made pistol. PW-1, his wife PW-2 and villagers reportedly saw this incident. After that accused ran away towards eastern side.

19. This story of PW-1 was also corroborated by his wife PW-2 Smt. Sahendri in her examination-in-chief. It shows that PW-1, PW-2 and villagers were present when accused were trying to drag Pinki to the field of Atar Singh. But the presence of PW-1 could not be proved on the spot at the time of said occurrence. PW-1 has admitted in his cross-examination that when he reached on the spot the body of his daughter was lying behind pile (Bitauda) and his wife was weeping there and he found that the body of his daughter was lying straight. PW-1 has further stated in his cross-examination that firstly he and his wife reached near the dead body and after that rest of people came there. While PW-2 has stated that cadaver of her daughter was found behind the pile just before police reached.

20. As per statements of PW-1 and PW-2, police reached in the village at 10.00 - 10.30 PM. It clearly reveals that PW-2 was also not present on the spot at the time of incident i.e. 7.00 PM. As per prosecution case, this incident happened at 7.00 PM and within a very short span Pinki was murdered and PW-1 and PW-2 and other villagers were present, then the question of recovery of cadaver of Pinki near-about 10.00 PM - 10.30 PM does not arise. It is very material that the distance between the place where the Pinki and her mother PW-2 were sitting for attending the call of nature and the place where Pinki was murdered, was hardly 50 yards and it is noteworthy that PW-1, PW-2 and villagers were chasing accused and in the meantime Pinki was murdered. Apparently all this do not appear to be true and possible that accused would not try to save themselves.

21. If the prosecution version is assumed to be true that on the commotion of Pinki, her mother, who was present there, PW-1 and villagers immediately reached on the spot and if they saw that accused were dragging Pinki in the field of Atar Singh, it was very easy for all of them to apprehend the accused persons or to rescue Pinki from their clutches specially when it has been proved that accused did not have any weapon even lathi or danda with them at that time. In such circumstances, how was it possible for the accused to drag Pinki to the field of Atar Singh; to open string of Salwar of Pinki; to attempt to commit rape; or to torn her clothes and on resistance to assault Pinki with country-made pistol and then throttle her. We are of the opinion that it was not possible for the accused to do all this in that short span. If all accused had pistols, certainly they would have murdered Pinki from pistols or would have at least scared the villagers and parents with their pistols.

22. It is apparent that parents and villagers did not come to rescue the deceased. Such reaction, conduct and behaviour of the witnesses are sufficient to doubt their presence on the spot at the time of incident.

23. It has been argued on behalf of the appellants that no villager has been named as witness despite the claim in the F.I.R. itself that several village folks chased accused persons. PW-6 I.O. has admitted that he has not mentioned any name as eye witness except informant and his wife because no one was ready to become witness due to the fear of accused. He did not put any question to anyone during investigation that why they were not ready to become witness even seek any information about the identities of such person.

24. PW-1 and PW2, both have divulged the names of villagers, who were present. They are DW-1, DW-2 and Buddh Singh. Both the witnesses have stated that they communicated the names of witnesses to the I.O.

25. PW-1 has stated that he ran a business of flour mill operated with engine in his house on the date and time of occurrence. Due to this reason it was not possible for PW-1 to hear the commotion from the said place where the daughter and wife of PW-1 were attending the call of nature, which was about 300 yards away from flour mill. PW-1 has further stated that "?kVuk ds le; esjh pDdh py jgh Fkh] eS ckgj Fkk ?kj ds". It shows that PW-1 was not present at his flour mill on the date and time of incident, rather he was at some other place outside his house. This statement found corroboration with the statement of PW-2 when she stated that when 'we' reached there, 'my' daughter had already died.

26. She told her husband about the cadaver of her daughter. She further stated that she informed her husband on the next day on the arrival of police. It shows that PW-1 did not reach the spot on the commotion of his daughter and wife and he was informed about the whole incident afterwards. PW-2 has stated in her cross-examination that besides her and her husband, Sanjeev, Dharam and Rajveer had also gone on the spot. This Dharam Singh son of Jaggan Singh, DW-2 has stated that he did not see accused persons Desha @ Deshraj, Veer Singh, Atar Singh or any one else killing Pinki on 9th July, 2002. On that day when Pinki died, her father Rajveer was not in the village. He had gone to village Sadharanpur of his sister. This statement of DW-2 finds support with the evidence of PW-1 when he stated that "eSa ckgj Fkk ?kj ds" and also of PW-2, when PW-2 stated that after coming of her husband she narrated the whole story to him.

27. The presence of informant on the date, time and place of incident further does not find support from the evidence of PW-6 also. In his examination-in-chief Investigating Officer PW-6 has admitted that on 09.07.2002 after lodging the FIR he immediately went on the spot and commenced proceedings of inquest through HCP Sheetal Singh and prepared other documents on the spot. PW-1 has stated that on his pointing out, Investigating Officer prepared site plan. PW-6 himself admitted that within half an hour of reaching on the spot, he inspected the spot, but the site plan Ex. Ka-13 has been signed on 10.07.2002. He further stated that complainant (PW-1), his wife (PW-2) and many villagers went with him in the same night at the place where corpse of Pinki was found, while PW-2 has admitted that she was unconscious at the time of incident and gained consciousness on the very next day. PW-6 has admitted that he recorded the statements of complainant, his wife and scribe in the night of 9/10.07.2002. Later on PW-6 has stated that he recorded the statement of all the aforesaid persons on 10.07.2002. All this creates doubt about the prosecution version. Value of evidence of all these witnesses has diminished.

28. PW-2 has also stated that "eSa vius vkneh dks crk;k Fkk fd eqyfteku ds ikl reaps Fks vkSj reapksa ls pksV igqapk;h Fkh". As per report of Doctor, there is no injury of country-made pistol on the body of Pinki. It also shows that PW-2 was not present on the spot at the time of incident. When PW-1 came, then his wife narrated him about the incident caused by all accused with country-made pistols, while PW-1 has stated that only accused Desha alias Desh Raj was armed with pistol. Such facts are neither mentioned in the FIR nor in the statements recorded under Section 161 Cr.P.C. while witnesses have stated that they have told this fact to the Investigating Officer. All this falsify the case of prosecution.

29. PW-1 has stated that he had filed his affidavit in court regarding this incident in which he had written that his daughter was assaulted by country-made pistol. He had also informed Investigating Officer that accused Desha had this country-made pistol at the time of incident and wrote those facts in Ex. Ka-1. PW-2 has also supported these statements that Desha @ Deshraj had murdered her daughter by assaulting her with this country-made pistol. But PW-6 has clearly admitted that PW-1 and PW-2 did not tell him that accused had pistols at that time or they caused any injury with these pistols. PW-6 has further stated that informant did not tell him that accused persons had any lathi, danda or any weapon with them at that time.

30. PW-1 has stated that there was blood at the place where the corpse of his daughter was lying. The clothes of Pinki were also stained with blood while there is nothing in the inquest report that there was any sign of blood on the clothes. At one place in his cross-examination PW-1 has stated that he, his wife and many villagers brought the corpse of Pinki from the spot to his house. At another place he has stated that he, his wife and Budh Singh brought the corpse of Pinki while at third place he has stated that he, Budh Singh, Sanjeev and Dharam Singh brought the corpse of Pinki. DW-1 Sanjeev and DW-2 Dharam Singh have not supported the prosecution version at all.

31. PW-1 has further stated that he, his wife and Buddh Singh brought the corpse of Pinki from the spot to his home, blood was not spilled on the clothes of any one. But later on PW-1 himself has admitted that as he picked up the corpse, blood was spilled only on his clothes. He wrote in his written report that he alone had brought the corpse of Pinki to his house and blood was spilled only on his clothes and he told all this to the Investigating Officer. But contrary to it, PW-2 has stated that her husband and villagers brought the corpse to the village and their clothes were stained with blood.

32. PW-2 also corroborated that there was blood where the corpse of Pinki was lying, but no blood stained or simple earth from that spot was taken by the Investigating Officer. No Fard was prepared in this regard. PW-6 has specifically admitted that no one has given statement that any blood was oozing from the corpse of Pinki or the clothes of PW-1 or clothes of other villagers were stained with blood or there was any blood on the earth where the corpse of Pinki was lying.

33. It is noteworthy that PW-6 has admitted that PW-1 did not inform him that he brought the cadaver of Pinki from the place of occurrence. He has further admitted that he did not try to know that who or with whose help the cadaver of Pinki was brought in the village. All this falsify the story of prosecution that the cadaver of Pinki was brought from the field of Atar Singh by the complainant, his wife or any named villager. The presence of the PW-1, informant on the spot is wholly doubtful. The place of occurrence is also not ascertained by the statements of PW-1, PW-2 and PW-6 as there are major contradictions in their depositions. All this shows that Pinki was murdered elsewhere and when the matter of death of Pinki came to the notice of complainant's side, the cadaver of Pinki was brought to the house of complainant, police was informed and thereafter inquest report was prepared.

34. PW-2 has stated that when she and her daughter moved from the house, they were having bucket and flagon (tasla) to throw the garbage and when the cadaver of Pinki was brought to the village, these things i.e. bucket, flagon and slipper of Pinki were left there, but the Investigating Officer has not prepared any Fard regarding these items. This fact also falsifies the case of prosecution that the cadaver of Pinki was found from the field of Atar Singh or anything happened there on the date and time mentioned in the FIR.

35. The deposition of these two witnesses PW-1 and PW-2 further falsify their own statements when PW-1 was asked that "rqEgkjh yM+dh ds lkFk cykRdkj gqvk ;k ugha] rks mlus dgk fd lyokj dk ukM+k VwVk gqvk Fkk rks cykRdkj gqvk gksxk". This statement also shows that PW-1 was not present on the spot, if he was present on the spot, certainly he would have seen the accused committing rape or attempting it. He has further stated that he informed this to the Investigating Officer, but the I.O. has specifically denied it. PW-1 has further stated that he had asked scribe to write down in Ex. Ka-1 regarding the incident of rape, if it is not there, he is unable to say anything. While PW-2 has stated that "dsoy ukM+k VwVk gqvk Fkk vt [kqn dgk fd lyokj ckgj mrjh gqbZ FkhA eSaus lyokj iguk;h FkhA ukM+k Hkh eSaus gh cka/kk FkkA eSaus njksxk th dks crk;k Fkk fd lyokj mrjh gqbZ Fkh vkSj lyokj eSaus iguk;h Fkh". This statement of PW-2 is totally contradictory to the statement of PW-1. It has also created further doubt about the presence of PW-2 also. PW-6 has stated that PW-1 or PW-2 did not give any statement like this.

36. PW-3 Dr. V.P. Singh opined that there was no external injury on the private part of Pinki and cause of death of Pinki was asphyxia as a result of pressure on neck (throttling). PW-4 Dr. K.K. Agrawal, Senior Pathologist, District Hospital, Muzaffar Nagar, who proved pathological report Ex. Ka-3, did not find any spermatozoa. PW-6, Investigating Officer after investigation submitted charge sheet, Ex. Ka-14 under Sections 302, 376, 511 IPC. Thus, PW-6 only found the evidence of offence of attempting to commit rape. But it is noteworthy that the learned trial court did not even frame charge under Section 376 or 376/511 IPC. There was no material before the Investigating Officer for such charge, inspite of that he submitted the charge sheet under Section 376/511 IPC.

37. It is very material to note that PW-2 has admitted that ";g ckr lgh gS fd ftl le; ?kVuk gqbZ] ml le; eSa csgks'kh gkyr esa ?kj ij FkhA eq>s lqcg tc njksxk th c;ku ysus vk;s rc gks'k vk;k Fkk". This statement of PW-2 also falsifies the case of the prosecution that Pinki with her mother (PW-2) went to attend the call of nature and PW-2 was present on the spot at that time. It also shows that PW-2 could not see any occurrence and on the other hand PW-1 has stated that when he reached on the spot, his wife was weeping near the corpse of Pinki. All this has created doubt on the prosecution story.

38. PW-1 has stated that the corpse of Pinki was sealed by the police in his presence and his thumb impression was obtained on Inquest Report while there is no thumb impression/ signature of this witness on Inquest Report. It appears that PW-1 wants to establish his presence on the spot as well as at his house on that day. This witness has stated that he does not remember that corpse of Pinki was sealed in the night; in the morning or in the evening of the next day. He has said that corpse was taken by police next day in morning while PW-2 has stated that corpse of Pinki was taken by the police at 12 o'clock in the night. This was such important factor that no parent can forget that when the corpse of their daughter was taken away by the police from their home. All this shows that witnesses were not present on the spot and whole story has been cooked up.

39. It has been argued on behalf of the appellants that PW-6 got this inquest report prepared by HCP Shoran Singh but there is no signature of Shoran Singh on this inquest report while PW-6 himself has admitted that there must be signature of that person who filled up this inquest report. This laches on the part of the prosecution corroborate the version of DW-1 Sanjeev, who stated that police got his signature on the inquest report on 10.07.2002 at Police Station. In his cross-examination, he corroborated it. He also stated that he did not see accused persons committing rape or murdering Pinki on 09.07.2002.

40. All the facts discussed above do not prove the presence of PW-1, inspite of that PW-2 has tried her best to prove the presence of her husband on the spot at the time of incident. This fact is sufficient to prove that PW-2 is not trustworthy witness. No reliance can be placed upon her.

41. It is also very important to mention when PW-2 has stated that "eq>s /;ku ugha gS fd ?kj ls pyus ds fdrus ?kaVs ckn yk'k feyh Fkh", " tc yM+dh dh yk'k dks mBk;k rks esjs ifr ds ikl cSVjh ugha Fkh oSls gh va/ksjs esa mBk dj ys x;s FksA" This statement of the witness has proved that she was not present on the spot at the time of incident and later on the corpse of Pinki was found and brought sometime in the late night. This fact also creates doubt about the presence of PW-2 on the spot and also reflects that Pinki was already murdered earlier. Subsequently her dead body was found.

42. PW-1 has stated that after the incident he went to the police station alone and got the written report Ex. Ka-1 scribed by Randhir Singh son of Karam Singh, resident of Village Kandi, P.S. Kakrauli on 09.07.2002 at 9.15 PM. But this Randhir Singh was examined as DW-3 and he has stated that this Ex. Ka-1 was written by him on 10.07.2002 on the dictation of SHO Amar Singh of P.S. Kakrauli and at that time Rajvir, PW-1 was not present. He even tried to resist as it would be a false implication, but the S.O. Kakrauli pressurized him to write whatever he was saying. In his cross-examination DW-3 has admitted his signature on Ex. Ka-1, but again he has denied the suggestion that he wrote down Ex. Ka-1 on the dictation of informant Rajveer. All this shows that PW-1 could not reach on the spot at the time of occurrence and did not see anything and FIR was not dictated by the complainant. Prosecution case is based on this FIR. Hence the prosecution case cannot be accepted in toto. PW-1 informant has stated that after lodging the report at Police Station, he returned to his house on foot, but PW-6 has stated that after lodging of report, he reached the spot on his Jeep with informant.

43. PW-1 has stated in his cross-examination that he dictated in his report Ex. Ka-1 that corpse of Pinki was brought by him, Buddh Singh, Sanjeev and Dharam Singh. But this fact is not mentioned in F.I.R. He also informed Investigating Officer about it. Investigating Officer has also denied it. This fact also shows that written report was not dictated by PW-1. It corroborates the version of DW-3 Randhir Singh when he stated that this written report Ex. Ka-1 was dictated by S.O. Kakrauli and not by PW-1, informant.

44. PW-1, informant has stated that he asked scribe DW-3 to write in Ex. Ka-1 that accused were armed with country-made pistol; clothes of Pinki were torn; corpse of Pinki was brought by him and Buddh Singh; his clothes were stained with blood. But these facts are not mentioned in the F.I.R. All this has created doubt whether PW-1 himself narrated the contents of FIR to DW-3, scribe of the F.I.R. Now it is clear that this F.I.R. Ex. Ka-1 was written due to the intervention of police and prosecution case is based on this F.I.R. Hence, in light of this circumstance also, this Court cannot believe the prosecution version at all. Though FIR is not a substantive piece of evidence, but certainly it is a relevant circumstance. It has been established that present Ex. Ka-1 was not dictated by informant PW-1. In such circumstances FIR has lost all its legal efficacy.

45. It has also been argued on behalf of appellants that if PW-2 and her daughter deceased Pinki had gone for attending natural call then they would certainly have had mug of water but no witness has said anything about it nor was it recovered by the Investigating Officer.

46. It is a case of prosecution that accused dragged Pinki to the field of Atar Singh, from the place where she was attending nature's call. Naturally she would have resisted it. In such process she should have received some injuries on her body because the whole place was rugged. But as per postmortem report there is only abraded contusion on the right side of face and left cheek while it should have been on legs and hands also. This also falsifies the story of prosecution that Pinki was dragged forcefully.

47. It has been argued on behalf of the appellants that accused-appellants have been falsely implicated. Accused Desha alias Desh Raj and Veer Singh in their statements u/s 313 Cr.P.C. have stated that they had flour mill near the flour mill of complainant and due to that dispute they have been falsely implicated; accused Atar Singh has stated he had grocery shop at Morna and when the borrowed money was demanded, he was falsely implicated. Suggestion on behalf of the appellants Desha alias Desh Raj and Veer Singh has also been given that there was flour mill of Desha alias Desh Raj and due to enmity, someone else murdered Pinki and accused Desha alias Desh Raj and Veer Singh, being friend of Desha alias Desh Raj have been falsely implicated. DW-2 has stated that Desh Raj has been falsely implicated due to enmity. Suggestion has also been given to PW-2 that she had taken medicine from Dr. Ratan Singh, brother of Atar Singh, but didn't pay money and when the borrowed money was demanded, accused Atar Singh has falsely been implicated. No evidence has been given on behalf of the appellants in this regard. Enmity is always a double edged weapon, someone may attack any one due to that enmity and others may implicate falsely. In this case as prosecution could not establish its case beyond reasonable doubt against the accused persons, so story of enmity has no value. It was incumbent upon the prosecution to prove its case by trustworthy evidence beyond reasonable doubt and prosecution has failed to do so. Evidence of defence witnesses cannot be overlooked.

48. We have carefully perused all material on record. We believe that the daughter of PW-1 was murdered by unknown persons, but there is no trustworthy evidence on record to demonstrate the involvement of appellants in the stated crime. Police has failed to collect the trustworthy evidence. The entire case indicates that police perhaps was merely interested to somehow show the resolution of case rather than book the real culprits or to collect trustworthy and legally admissible evidence.

49. If the prosecution case is proved to be based on wholly unreliable witnesses, Court has no option but to acquit the accused. On evaluating the entire evidence of prosecution, we are of the opinion that there are material discrepancies in the testimonies of witnesses and their evidence cannot be believed.

50. In view of the above, the judgment and order dated 29.09.2007 passed by Additional Sessions Judge, Court No.9, District- Muzaffar Nagar in Sessions Trial No.1225 of 2002 (State of U.P. Vs. Desha alias Desh Raj and others), Crime No.92 of 2002, Police Station Kakrauli, District Muzaffar Nagar, is hereby, set aside. The aforesaid appeals are allowed. The appellants, namely, Atar Singh, Desha alias Desh Raj and Veer Singh are acquitted. Appellants, if in jail be set at liberty forthwith unless their detention is required in connection with any other case provided that they furnish bail bonds and sureties complying Section 437-A Cr.P.C. within a period of one month from the date of this judgment in the court of C.J.M., Muzaffar Nagar.

51. Let a copy of this order be certified to concerned court through Sessions Judge, Muzaffar Nagar within a fortnight for compliance. The court concerned shall report the compliance within a month thereafter.

Order Date :- 25-5-2017

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