Jai Kunwar Singh vs State Of U.P.
2017 Latest Caselaw 242 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                  Court No.40                                                      
 

 
Case :- CRIMINAL APPEAL No. - 2503 of 2007                       AFR
 
Appellant :- Jai Kunwar Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Mangal Prasad Rai,C.K.Singh,Dileep Kumar,Jitendra Singh,Sushil Kumar Dwivedi
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bala Krishna Narayana, J.

Hon'ble Arvind Kumar Mishra-I, J.

(By order of the Court)

The arguments of these cases concluded on 08.05.2017. Following order was passed by us on that date:

"Heard Sri H.P. Mishra and Sri Jitendra Singh, learned counsel for the appellant and Km. Meena, learned AGA for the State.

We will give reasons later but we are making the operative order now.

This appeal is allowed. Impugned judgment and order dated 09.02.2007 passed by the Additional Sessions Judge, FTC No.II, Chitrakoot, in Sessions Trial No.195 of 2001 convicting and sentencing the appellant Jai Kunwar Singh to undergo life imprisonment under Section 302 IPC is hereby set aside by us. Appellant Jai Kunwar Singh is acquitted of all the charges.

Appellant is in jail. He shall be released forthwith unless and until he is wanted in connection with any other case. However, he will comply with provisions of Section 437A Cr.P.C."

Here are the reasons:-

By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 09.02.2007 passed by Additional Sessions Judge, FTC No.11, in Sessions Trial No.195 of 2001, State of U.P. Vs. Jai Kunwar Singh, arising out of Case Crime No.171 of 1996, under Section 302 IPC, Police Station- Rajapur, District- Chitrakoot, whereby the appellant has been sentenced to life imprisonment under Section 302 IPC coupled with fine Rs.10,000/-, in default of payment of fine, he will have to undergo one year additional rigorous imprisonment.

Heard Sri H.P. Mishra and Sri Jitendra Singh, learned counsel for the appellant, Km. Meena, learned AGA for the State and perused the record of this appeal.

Precisely, facts of this case leading up to this appeal as unfolded by the written report/first information report indicate that the first information report was lodged on 21.07.1996 at Police Station Rajapur, District Banda, at 8:00 a.m., at Case Crime No.171 of 1996 under Section 302 IPC against the present appellant with the allegations that there is some government hand-pump installed in the village in front of the house of Dashrath Pal which is used by the villagers. Some altercation took place on account of fetching water between wives of the informant's brother Jagdish Singh and Chandra Mohan Singh, resident of his village. However, the matter was settled between the two on the intervention of the villagers but Chandra Mohan Singh had some grudge against the informant's brother. On 20.07.1996, the informant, his brother Jagdish Singh, Prema Devi wife of Jadgish Singh, Indra Sen and the informant's son Santosh Singh after working in their field, were returning their home. On way, as soon as they crossed river Dashrathgar and proceeded towards the village, his brother Jagdish Singh began to wash his hand. It was around 6:00 p.m., when the accused Chandra Mohan Singh possessing single barreled gun and Jai Kunwar Singh, brother-in-law of Chandra Mohan Singh possessing double barreled gun appeared before the informant's brother and fired on his brother which fire hit his brother and he fell down. The aforesaid two guns were owned by the father and grand father of Chandra Mohan Singh. On alarm being raised, several persons from nearby place arrived on the spot. They challenged the accused when both of them secured their escape with their guns. It rained in the night, due to which the informant took the dead body to his home. Request was made for lodging the first information report and taking appropriate action. The written report is Ext. Ka-1.

Record further reveals that contents of the written information were taken down in the concerned Check FIR at Case Crime No.171 of 1996 under Section 302 IPC, at Police Station Rajapur, District Banda, on 21.07.1996 at 08:00 a.m. Check FIR is Ext. Ka-2. On the basis of entries so made in the check F.I.R., a case was registered against the accused-appellant in the relevant G.D. at serial no.10 on 21.07.1996 at 08:00 a.m. at aforesaid case crime number at Police Station Rajapur under aforesaid section of I.P.C. against accused-appellant. General diary copy is Ext. Ka-3.

After lodging of the first information report, S.I. Sone Lal, Investigating Officer took over the investigation, arrived on the spot and recorded statement of several persons and held inquest of the deceased Jagdish Singh. It commenced at 09:25 a.m. on 21.07.1996 and completed at 10:45 a.m. Inquest report is Ext. Ka-4.

In the opinion of the inquest witnesses and the Investigating Officer, it was suggested that post mortem of the dead body of Jagdish Singh be ensured in order to ascertain real cause of death. Therefore, relevant papers were prepared for sending the dead body for post mortem examination.

Thereafter, dead body was sent for post mortem examination in the mortuary at Banda where post mortem examination on the cadaver of the deceased Jagdish Singh was done by Dr. Balvir Kishor Gupta PW-6 on 22.07.1996 at 10:00 a.m. wherein he noted the following ante mortem injuries:

1. Firearm lacerated wound of entry five in number on left mandibular and sub-mandibular in an area of 8 cm x 6 cm, size of wound are 2 cm x 1 cm, 2.5 cm x 1 cm, 2 cm x 2 cm, 3 cm x 2 cm x through and through, wounds were connecting on right side of neck. Margins inverted.

2. Firearm lacerated wounds of exit, each measuring 1 cm x 1 cm x in correspondence with injury no.1 in an area of 4 cm x 3 cm on right side of neck, 7 cm below on right ear. Margins inverted.

3. Firearm lacerated wound of entry and exit on right arm on front of medial aspect, 12 cm x 10 cm x bone deep extending to the elbow joint. Right humorous bone fractured.

4. Firearm lacerated wounds of entry two in number, 2 cm x 1 cm and 4 cm x 2 cm x muscle deep on back of right hand, 4 cm deep to the wrist joint. Margins inverted.

5. Firearm lacerated wound of entry 2 cm x 1 cm x muscle deep on back of left wrist. One pellet was recovered from the muscle of back of hand. Margins inverted.

6. Firearm abrasions two in number in an area of 3 cm x 3 cm and 2 cm x 1 cm on top of left shoulder.

7. Firearm lacerated wound of entry 2 cm x 1 cm on front of left forearm, 9 cm above the wrist.

8. Firearm lacerated wound of entry 8 cm x 6 cm x chest cavity deep, through and through the exit wound on the front of right side of chest extending to mid-line of chest, 5 cm away from right nipple at 5 O' clock position. ?Margins inverted and burnt.

9. Firearm lacerated wound of exit 4 cm x 2 cm x corresponding to injury no.8 on right lateral aspect of chest, 7 cm below the right axilla. Margins of wound inverted.

In the opinion of the doctor, cause of death was due to shock and haemorrhage as a result of ante mortem injuries. This post mortem examination report is Ext. Ka-10.

In the meanwhile, the investigation continued. The Investigating Officer prepared site plan of the place of incident Ext. Ka-5 and recorded statement of various prosecution witnesses and statement of scribe on 22.07.1996. He also recorded statement of the constable on 23.07.1996 who conveyed the dead body to mortuary. Thereafter, the investigation was handed over to another police official S.I. Vashishth Singh who took over investigation on 27.07.1996. He recorded statement of the both the accused who gave statement for recovery of both the guns. The Investigating Officer also proved report of Forensic Science Laboratory. Upon completion of the investigation, he filed charge sheet under Section 302 IPC against the accused Ext. Ka-6.

Consequently, the committal proceedings took place and the case was committed to the court of Sessions from where it was transferred to the Additional Sessions Judge, FTC No.11, Chitrakoot, for conduction of trial and disposal of the case, after numbering it as Sessions Trial No.195 of 2001 State Vs. Jai Kunwar Singh. Learned trial Judge heard the prosecution and the accused on point of charge and was prima-facie satisfied with the case against the accused-appellant, accordingly, framed charge under Section 302 IPC. Charge was read over and explained to the accused-appellant who abjured charge and claimed to be tried.

In turn, the prosecution was required to adduce its testimony in support of the charge brought against the accused-appellant to prove his guilt and in the process it produced, in all, seven witnesses whose reference is being sketched hereinbelow.

Ranjit Singh PW-1 is the informant and eyewitness of the incident. Similarly, Prema Devi PW-2 is eyewitness. Sone Lal PW-3 is the Investigating Officer. He has conducted the investigation though not completed the same. Indrasen PW-4 is also witness of fact of altercation which took place between wives of the informant's brother Jagdish Singh and Chandra Mohan Singh of his village. Vashishth Singh PW-5 is the subsequent Investigating Officer and he has detailed about his part of investigation and has proved filing of charge sheet against the accused. Dr. B.K. Gupta PW-6 has conducted post mortem examination on 22.07.1996 at 10:00 a.m. and has proved post mortem examination report Ext. Ka-10, besides proving cause of death. Head Moharrir Babu Ram PW-7 has made relevant entry in the concerned Check FIR and general diary entry.

No more evidence was adduced on behalf of the prosecution. Therefore, evidence for the prosecution was closed and statement of the accused-appellant was recorded under Section 313 Cr.P.C. wherein he submitted that Chandra Mohan Singh was son-in-law of brother of the deceased and was brother-in-law of the accused. The brother of the deceased had given his property to Chandra Mohan Singh who began to reside with him, due to this, the informant and the deceased Jagdish Singh became inimical towards Chandra Mohan Singh and roped him in, in this case. The deceased Jagdish Singh was a history-sheeter and was awarded life imprisonment. The villagers might have killed the deceased on account of enmity. No evidence, whatsoever, has been led on behalf of the defence. Thereafter, evidence for the defence was also closed and the case was posted for arguments.

The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned aforesaid finding of conviction against accused-appellant under Section 302 IPC and sentenced him to life imprisonment under Section 302 IPC, which eventually gave rise to this appeal.

It has been vociferously contended on behalf of the appellant that there was no motive for committing murder of Jagdish Singh. Whatsoever motive was there was with Chandra Mohan Singh, another co-accused whose father-in-law had given his property and was residing with Chandra Mohan Singh in his home. This was objected to by the informant side and the deceased Jagdish Singh was a criminal and was sentenced to life imprisonment in connection with some case, therefore, the villagers killed him. But the present appellant had no motive, whatsoever, to commit crime. He being brother-in-law of co-accused Chandra Mohan Singh was roped in, in this case giving thrust to the fake prosecution version.

It has been further contended on behalf of the appellant that it is a case where death of Jagdish Singh was allegedly caused on 20.07.1996 around 6:30 p.m. It is admitted case of the prosecution that it was not raining in the evening when the incident took place but the dead body was removed from actual place of the incident and was taken to the home of the deceased and again the same was shifted inside and outside the house on the pretext of raining. But this pretext stands exposed in the wake of fact that no such fact as would have forced movement of body from one place to another place, has been proved by the prosecution.

Fact is that the deceased was killed somewhere else by some unknown persons and when the informant side came to know about murder of Jagdish Singh, then the dead body was brought to the house and kept there, and a false story was cooked up involving the present appellant along with another co-accused in this case.

It has been further contended on behalf of the appellant that since deliberation to involve some persons in the incident was going on, therefore, the first information report was deliberately not lodged in the night after the incident but it was lodged only the next morning on 21.07.1996 at 8:00 a.m. at Police Station Rajapur, District Banda. This fact by itself is reflective of the police intervention to the extent that the concerned police personnel of the concerned police station colluded with the informant in order to falsely involve the appellant in this case.

Moreover, motive originally imputed in the first information report had its background in some altercation taken place between wives of the deceased Jagdish Singh and co-accused Chandra Mohan Singh and at the intervention of the villagers, the dispute was settled amicably between the wives of the deceased Jagdish Singh and co-accused Chandra Mohan Singh.

However, it is stated that Chandra Mohan Singh was grudging ill-will towards the deceased Jagdish Singh. In the wake of the aforesaid factual aspect of this case, obviously there was no direct motive for the accused to commit the crime. All the prosecution witnesses of fact have been tutored and their testimony is inconsistent on material point and they have described the incident like parrots. The manner of assault does not justify causing of a number of gunshot wounds on the body of the deceased Jagdish Singh.

The inquest report entails thirteen injuries, whereas, post mortem examination report describes only nine injuries. This variation in the above two documents is self-speaking actual position that the prosecution witnesses were not present on the spot and they did not witness the occurrence. Their testimony, on the whole, does not inspire confidence and the same is fraught with contradictions. The prosecution witnesses are relative and chance witnesses. There is no independent corroboration of their testimony, therefore, no reliance can be placed on the same.

It is admitted case of the prosecution that it rained in the night but it is not the case that it rained immediately after the incident or at any particular point of time, therefore, effort for lodging the first information report was postponed during continuance of raining. Therefore, raining has been made an instrument justifying deliberation with the police, which under circumstances, cannot be reasonably accepted to be fair.

It has been lastly contended on behalf of the appellant that Indrasen PW-4 has himself testified in his cross examination that the informant had gone to lodge the report at the police station with Daroga Ji. The prosecution has not been able to establish its charge against the appellant.

Per contra, learned AGA has submitted that in this case, motive, as ascribed for committing the crime, has been reasonably established by testimony of the prosecution witnesses. All the prosecution witnesses have consistently and invariably proved the incident. Nothing adverse has emerged in their cross examination which may create any doubt on the veracity of their version. To say that no motive was proved against the appellant for committing the crime is not justified, for the fact that he happens to be relative of another co-accused, who had immediate cause against the deceased Jagdish Singh. He being relative can assist the co-accused. Moreso, it being eye account testimony case, motive loses its legal significance. However, relevancy of motive has been proved as was required under law.

Learned AGA has further added that the prosecution witnesses have testified to fact that it was raining due to which the informant could not lodge the first information report because distance from the place of occurrence to the police station was about 16 kilometers. Whatsoever, the prosecution witnesses say as an isolated sentence, cannot render their testimony tainted. It is incorrect to say that the first information report is ante timed and was lodged only after deliberation with the police.

Learned AGA has further submitted that whatsoever injuries were noted in the inquest report was the act of Daroga Ji who held inquest and whatsoever was found during conduction of post mortem examination on the cadaver of the deceased Jagdish Singh by Dr. B.K. Gupta, has been described in the post mortem examination report. The variation in the number of injuries in both the documents namely inquest report and the post mortem examination report, cannot be treated to be any substantial defect and making any dent in the prosecution story. The prosecution has proved its case beyond reasonable doubt.

We have also considered rival submissions and also rival claim and after perusing the record, the moot point for determination of this appeal centres around fact whether the prosecution has been able to successfully establish charge against the appellant beyond reasonable doubt, or the occurrence was in fact not seen by any of the prosecution witnesses as claimed by the appellant?

We gather from contents of the first information report that the first information report was lodged on 21.07.1996 at 8:00 a.m. at Police Station Rajapur, District Banda, whereas, the incident occurred on 20.07.1996 at 6:30 p.m. The point raised before us relates to fact that the first information report has been lodged by the informant at inordinate delay.

We have occasion to consider that aspect of the case and contemplate on factual aspect of the case vis-a-vis testimony of the prosecution witnesses. No doubt, the first information report was lodged belatedly after 13 hours or more and the reason assigned for the same was that due to it being raining, the informant was prevented from lodging the first information report during night.

We have carefully perused the entire testimony of Ranjit Singh PW-1, the informant, eyewitness and Smt. Prema Devi, wife of the deceased Jagdish Singh. Nothing has been stated on point that after the incident had occurred, the witnesses had seen the assailants and a number of people had also arrived on the spot. No perceptible effort was made by the informant side to get the first information report lodged promptly. Record is silent on fact that any continuous effort was either made or tried to be made to get the report lodged soon after the incident.

Testimony on record shows that it rained in the night but there is no specific time as to at what point of time it actually rained. In the absence of any such specific rain time, that since after night fell, raining started or when the first information report had already been scribed, the same was being taken to the police station, raining started or it rained around mid-night or in the early morning, explanation of fact of raining as a deterrent factor for lodging of the first information report does not sound well. The explanation appears to be vague for certain specific reason; firstly there is no exactitude of fact as to when raining started. Secondly, no plausible effort was made by the informant side to get the first information report lodged by the informant after the incident had occurred and it was not raining. These two factual aspects assume an independent circumstance which indicates that in absence of any particular fact of raining, we cannot presume that since after the incident had occurred, it started raining and it rained throughout night. Therefore, lodging of the first information report only on the next morning at 8:00 a.m. cannot be reasonably accepted to have been properly explained by the prosecution. That way, it is apparent that there is inordinate delay in lodging of the first information report. Therefore, the first information report becomes ante timed and one after deliberation.

The distance from place of occurrence up to the police station has been described in the Check FIR to be 16 kilometers. But there is nothing on record in the examination in chief of the informant - Ranjit Singh PW-1 as to when he set out for his home for lodging of the first information report. He has not testified particularly, on factual aspect of raining as to when it started in the night and when it stopped. In the absence of any such specific testimony, we have every reason to believe that the fact of raining has been deliberately brought in as an excuse for justifying delay in lodging of the first information report.

We have every reason to contemplate on that line, for obvious reason that Indrasen PW-4 who has also described about the incident, has not whispered a single word on point of fact of raining that it rained in the night, therefore, the dead body was taken to the house of the deceased Jagdish Singh, instead he deposed to the ambit that after the assailants had fled away from the scene of occurrence, the dead body was brought to the house of the deceased Jagdish Singh. It means that place of actual occurrence was changed, for no obvious reason. It is a particular fact testified by the Investigating Officer that he did not take any sample of simple or blood stained clay roll/soil from actual spot because it had rained and no such vestige of blood stains and mud was available to him.

On page 17 of the paper-book, we come across testimony of Indrasen PW-4 who is eyewitness of the occurrence that after the assailants had secured their escape, dead body of his (PW-4) father Jagdish Singh was taken to home. How and why this sort of statement has been made in examination in chief, has not been explained properly by the prosecution. How the entire examination in chief remained silent on point of raining as the very cause for removing the dead body from the place of actual occurrence. Thus, things have been put in dark and movement of the dead body from actual place of occurrence up to the house of the deceased remained an enigmatic situation and point of raining during night as relevant cause for removing the dead body from main spot becomes doubtful and cannot be accepted, for above specific reasons. Therefore, we can record our satisfaction that the first information report has been lodged by the informant at inordinate delay.

We can observe that Indrasen PW-4 has testified in his cross-examination on page 19 of the paper-book that Daroga Ji accompanied Ranjit Singh to the police for lodging the first information report. This very disclosure in the cross-examination is self-evident of the police involvement and intervention. In this case, prior to lodging of the first information report, the police deliberation as claimed on behalf of the appellant, is not only reflected but also established beyond reasonable doubt. The prosecution could not ascribe any worthy reason for such testimony of PW-4.

We may move on to another important aspect of the case that since the dead body was removed from actual place of occurrence and was brought to the house of the deceased itself by his son and relatives, therefore, it is obvious that original place of occurrence has been changed and it cannot be stated with certainty that actual place of occurrence was the place which has been described by the prosecution witnesses to be the place where the incident took place. Because the fact required proof with reasonable certainty.

At this stage, learned AGA has vehemently claimed that the site plan Ext. Ka-5 has not been specifically challenged that it is fabricated and is imagination of the Investigating Officer, therefore, the site plan is indirectly admitted to the appellant. Merely because challenge has not been made to the preparation of the site plan that by itself will not establish actual place of occurrence.

The other important aspect of the investigation is indicative of fact that things have been tried to be kept in orderly manner for reasons best known to the prosecution. Ranjit Singh PW-1, the informant has stated in his cross-examination that after the first information report was lodged, inquest was prepared at 3:00 p.m - 4:00 p.m. but Sone Lal PW-3, the Investigating Officer says that as soon as the case was registered, he proceeded to the spot and in the first line of his cross-examination, he has testified that he arrived at the residence of the deceased Jagdish Singh on 21.07.1996 at 10:00 a.m. and he prepared inquest report. Inquest report Ext. Ka-4 indicates that preparation of inquest report commenced at 9:25 a.m. and was completed at 10:45 a.m. then version of the informant that inquest was prepared around 3:00 p.m. - 4:00 p.m. on 21.07.1996 becomes hard nut to crack.

At this stage, it is relevant to take note of testimony of Dr. B.K. Gupta PW-6 who has stated in his examination in chief that the dead body was brought in the morning of 22.07.1996 in a sealed cover and he conducted autopsy at 10:00 a.m. Anomaly in the timing of preparation of inquest and in the testimony of Ranjit Singh PW-1 is apparent. It is obvious that inquest report had already been prepared on 21.07.1996 at 10:45 a.m.

Sone Lal PW-3, the Investigating Officer has himself denied fact of preparation of inquest report at 3:00 p.m - 4:00 p.m. on the next day of the incident. It is surprising that in his cross-examination, the Investigating Officer PW-3 has categorically stated that he did not make any site plan of the place of occurrence where the dead body had been kept after it was brought from actual place of occurrence. This way also, custody of the dead body in the intervening night of 20/21.07.1996 is very much doubtful.

It is established law that laches committed during course of the investigation will not throw away the case of the prosecution. Here, the investigation has been done in a manner which exposed falsity of claim of the prosecution that the first information report was lodged belatedly on account of raining during night. Thus, we may conclude conveniently that actual place of occurrence has not been proved by the prosecution. Merely preparation of the site plan in shape of Ext. Ka-5 will not ipso facto prove actual place of occurrence.

In the wake of above particular aspect of the case, both - factual and legal, we may conclude that it is hard to believe that any prosecution witnesses of fact, out of the three, had in fact seen the occurrence with his naked eyes.

It can be reasonably concluded that it appears to be a case where the dead body was discovered somewhere else and then it was brought to the house and kept there and then the entire incident was worked out on imagination and hypothesis with the help of the police and the first information report was lodged next morning at 8:00 a.m. on 21.07.1996. Why the dead body was not sent to the mortuary after inquest had been completed on 21.07.1996 at 10:45 a.m., has not been clarified by the prosecution. Dr. B.K. Gupta PW-6 has categorically stated that he received the dead body in a sealed cover only in the morning of 22.07.1996 and then he conducted autopsy on the cadaver of the deceased Jagdish Singh at 10:00 a.m. the same day.

We may also observe that condition of the dead body also reveals that skin had peeled off on different places of the body. This is indicative of fact that the dead body must have seeped with mud and watering soil otherwise the dead body could not have been peeled off at places, if it was taken care immediately after the incident by the relatives of the deceased Jagdish Singh and the dead body was brought at the house of the deceased. Thus, we have every reason to disbelieve the presence of the prosecution witnesses at the time of occurrence on 20.07.1996 around 6:30 p.m. and their version of the incident, thus, becomes most unreliable. Therefore, the prosecution witnesses of fact are not trustworthy and reliable and their testimony does not inspire confidence on fact of occurrence.

It is trite law of criminal jurisprudence that in cases where the first information report is discovered to be ante timed and it becomes outcome of the police involvement then the entire prosecution case goes, such is exactly the case in hand. Here also, the first information report is found to be lodged by the informant at inordinate delay, the same becomes outcome of deliberation of the police involvement and, thus, it is rendered ante timed. This aspect is further strengthened by fact that inquest report had been prepared on 21.07.1996 at 10:45 a.m. but the dead body was handed over at the mortuary the very next morning and the dead body was found in decomposed condition and it bore signs of peeled off skin at different places. That way, reasonable doubt is created in the prosecution story. On wholesome consideration the prosecution story lacks both coherence and confidence.

It is cardinal principle of criminal jurisprudence that in a case where doubt is created in the prosecution story then advantage goes to the accused and it cannot be said that charge has been proved reasonably beyond doubt by the prosecution and in such cases the accused is liable to be acquitted of charge.

In view of above, we may obverse that the trial court while considering various aspects of the case and appraising facts and evaluating evidence on record, failed to take note of the aforesaid legal and factual aspects of the case and has recorded erroneous finding of conviction against the appellant and sentenced him to life imprisonment which we are unable to sustain.

These are the reasons upon which we set aside the impugned judgment and order of conviction dated 09.02.2007 passed by Additional Sessions Judge, FTC No.11, in Sessions Trial No.195 of 2001, State of U.P. Vs. Jai Kunwar Singh, arising out of Case Crime No.171 of 1996, under Section 302 IPC, Police Station- Rajapur, District- Chitrakoot.

However, we direct that appellant will ensure compliance of provisions of Section 437 A Cr.P.C. by appearing before the concerned trial court at the earliest.

Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.

Dt. 08.05.2017

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