Jasbir vs State Of U.P.
2017 Latest Caselaw 5375 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						   A.F.R.                                                      
 
			            Judgement Reserved on 4.5.2017
 
			            Judgement Delivered on 12.10.2017
 

 
Case :- CRIMINAL APPEAL No. - 2562 of 2005
 

 
Appellant :- Jasbir
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sunil Vashistha, A.C.
 
Counsel for Respondent :- Govt. Advocate,R.S.Shukla
 

 
Hon'ble Tarun Agarwala,J.

Hon'ble Rajul Bhargava,J.

(Delivered by Hon'ble Rajul Bhargava, J.)

1. We have heard Sri Sunil Vashista, learned amicus curiae appearing for the appellant and learned A.G.A. for the State.

2. The instant criminal appeal has been preferred by the appellant against judgement and order dated 2.5.2005 passed by Special Judge (E.C. Act),Shahjahanpur in Sessions Trial No.288 of 2002 (State Versus Jasvir) arising out of Case Crime No.28 of 2002, under Section 302 I.P.C., Police Station Madanapur,District Shahjahanpur, whereby the appellant has been convicted and sentenced to undergo life imprisonment along with fine of Rs.10,000/- with default stipulation.

3. The prosecution case, in brief, is that on 19.1.2002, first informant, Suvender Singh, examined as PW 1 lodged F.I.R. against the appellant at Police Station Madanapur,District Shahjahanpur on the same day at about 11.15 P.M. alleging therein that on 19.1.2002 at about 5.30 p.m. when first informant along with Hardeo Singh PW 2, Lakhvinder Singh (not examined) and Vedram PW 3 were coming towards their home after loading sugarcane from his field, wife of first informant,Smt. Sukhraj Kaur (deceased) came out of the house crying that Jasvir wants to commit rape upon her. She was being chased by the appellant who was having Gadali (sharp edged weapon) in his hand and in wheat field he gave Gadali blows on the deceased. On being challenged by the first informant and other three witnesses the accused-appellant made his escape good. Thereafter as the condition of the wife of the first informant was serious, she was taken to District Hospital, Shahjahanpur where she was declared dead. Thereafter the first informant, Suvender Singh went to Police Station Madanapur, District Shahjahanpur and lodged instant First Information Report. According to the prosecution, the investigation was taken up by Sub Inspector, Ishendra Singh,PW 4, Station Incharge of Police Station Madanapur. It is stated that First Information Report was registered in his presence and he immediately took up the investigation of the case.

4. It is pertinent to mention here that the inquest report prepared by Satendra Singh, Sub Inspector, PW 6 Police Station Kotwali, District Shahjahanpur on 20.1.2002 at 12.15 p.m. after taking the dead body from the mortuary of the District Hospital, Shahjahanpur. It is noted in the inquest report, Ext. Ka-2 that an information was received at Police Station Kotwali, District Shahjahanpur vide General Diary No.60 at 8.20 p.m. on 19.1.2002 that the deceased, Smt. Sukhraj Kaur has been brought dead in Hospital by Constable 575, Jamadar Singh Yadav, Police Station Madanapur, District Shahjahanpur. The said information about the deceased being brought dead by aforesaid constable was reported by Munna Lal, Sweeper of District Hospital, Shahjahanpur. Based on it, the inquest proceeding, however, started on 20.1.2002 at 12.15 p.m. and concluded at 1.20 p.m. We find that in the list of Pancha witnesses, Mahesh Pal Singh, scribe of the F.I.R. and village Pradhan has been shown at Serial No.1 and the first informant, Suvender Singh son of Gurunam Singh is also witness of inquest and his name finds place at Serial No.2. We may also record that in the description of documents as enclosures sent with inquest report along with the dead body does not find mention of any First Information Report (chick report) being attached to it.

5. The post mortem on the dead body of deceased was conducted by PW 5, Dr Anil Kumar. In the post mortem report, he has noted 20 ante-mortem injuries which included three different types of injuries i.e. incised wound caused by sharp edged weapon, lacerated wounds and contusions by some hard-blunt object. The ante-mortem injuries noted in the post mortem report by the doctor are as below:-

"1. A lacerated wound 7 x 3cm bone deep over right side of forehead just above the right eye-brow.

2. A lacerated wound 4 x 1cm over forehead at medial end of right eye-brow-cavity deep.

3. A contusion 3 x 4cm over right maxillary region.

4. An incised wound 3 x 1cm over right side of nose-cavity deep.

5. An incised wound 3 x 0.5cm over right side of face muscle deep, just above the right angle of mouth.

6. An incised wound 4 x 1cm over right side of scalp, muscle deep 2 cm above the injury no.1.

7. An incised wound 8 x 1cm bone deep over right side of scalp, 3 cm above the right ear.

8. An incised wound 3 x 0.5cm over back of scalp-bone deep, 10cm away from right ear.

9. An incised wound 4 x 1cm over left side of forehead, bone deep, 2 cm above the left eye-brow.

10. An incised wound 3 x 1 cm over left side of forehead, 7cm above the left eye-brow.

11. An incised wound 10 x 1cm over left side of scalp, bone deep, 2 cm above the left ear.

12. A lacerated wound 7 x 2cm bone deep over left side of scalp, 5 cm above the left ear.

13. An incised wound 2 x 0.5cm over upper part of left ear.

14. An incised wound 1 x 0.5cm at lower part of left ear.

15. A contusion 3 x 1cm over right shoulder.

16. A contusion 1.5 x 2cm over left skeletal region.

17. A contusion 17 x 7cm over right arm posterior-laterally.

18. A contusion 13 x 9cm over right forearm just above wrist.

19. Multiple contusion over area of 17 x 8cm over right side of neck laterally.

20. A abraded contusion 2 x 1 cm over chin."

The cause of death as noted by the doctor was coma as a result of ante mortem injuries. Left and right parietal, right and left temporal bones were found fractured. It is noteworthy that 14 out of 20 injuries sustained by the deceased were on the head and face of the deceased and said injuries appear to have been inflicted by sharp edged and blunt objects.

6. The Investigating Officer after registration of the case went to the village of the incident on 20.1.2002. He inspected the place of incident, recovered one broken piece of bamboo and piece of iron. He has also prepared site-plan,Ext.Ka-3 at the instance of first informant. In the site-plan, the place where the deceased was done to death is hardly 70 steps from the house of the first informant.

7. As usual, after investigation charge sheet was submitted against the appellant and being triable by court of sessions, the case was committed to the court of sessions and charge was framed against the appellant under Section 302 I.P.C. on 16.5.2002. The defence was of denial and the appellant claimed trial.

8. In the trial court, the prosecution in order to prove its case produced seven witnesses in all. Out of which, three are witnesses of fact and rest are formal witnesses. A short description of witnesses examined by the prosecution is as follows:

9. Suvender Singh, PW 1 is first informant and husband of the deceased. Hardeo Singh,PW 2 is the cousin (Phuphera Bhai) of the deceased and resident of different village. Vedram,PW3 is admittedly servant of first informant who used to work in the field of first informant PW 1. Senior Sub Inspector, Ishendra Singh, PW 4 was the then Station House Officer of Police Station Madanapur, District Shahjahanpur and he had investigated the case and submitted charge sheet against the appellant. Dr. Anil Kumar, PW 5 conducted autopsy on the cadaver of the deceased on 20.1.2002 at 3.30 p.m. Satendra Singh, PW 6 was posted as the then Sub Inspector, at Outpost Azizganj, Police Station Kotwali, District Shahjahanpur. He had conducted the inquest proceeding as noted above and after inquest he dispatched the dead body for post mortem examination. Pradeep Kumar Singh,PW 7, Constable 519 was posted as Constable Clerk at Police Station Madanapur, District Shahjahanpur and he had proved the registration of First Information Report on the basis of written F.I.R. given by PW 1 and had proved Chick Report as Ext. Ka-11.

10. Accused, appellant did not examine any defence witness but filed a copy of the sale deed of the land which was adjoining the house of first informant in order to prove his enmity with the first informant. The statement of the appellant under Section 313 Cr.P.C. was recorded on 14.1.2005 in which he had stated that he is aged about 24 years and he has been falsely implicated in the instant crime by the first informant on account of personal grudge. He has purchased the field in the vicinity of the first informant which he also wanted to purchase. On account of this reason, the first informant was nursing grudge and falsely implicated him in this crime.

11. Learned trial court after appreciating and discussing evidence on record held the appellant guilty of murdering the deceased and convicted and sentenced him by the aforesaid judgement and order which is impugned in this appeal.

12. Sri Sunil Vashista, learned amicus curiae appearing for the appellant,Jasvir has assailed the reliability and truthfulness of the prosecution case mainly on the following grounds:

1) The First Information Report in the instant case has been made ante-timed and ante-dated. It has come into existence after deliberations and consultations. There are clinching circumstances appearing from the prosecution case itself which indicates that first informant has concocted the prosecution story in collusion with police after making the First Information Report ante-timed.

2) The presence of the witnesses who are interested and partisan is highly doubtful.

3) The manner of incident as alleged by the prosecution is improbable and unworthy of credence.

4) The ocular version as alleged by the eye-witnesses is completely belied by the medical evidence.

5) Lastly, it is contended that from the facts appearing from the evidence led by the prosecution, it appears that the deceased was done to death in an entirely different manner under mysterious circumstances as the manner of assault as alleged by the first informant and other witnesses does not appear to be true.

6) There was no motive for the appellant to have murdered the deceased as alleged by the prosecution.

13. Per contra, learned A.G.A. appearing for the State has opposed the arguments advanced by learned amicus curiae by contending that First Information Report in the instant case has been lodged promptly. The version set up by the prosecution in the First Information Report of assault by Gadali by the appellant finds corroboration from the medical evidence. The presence of the witnesses cannot be doubted and merely because of the witnesses being interested and related to each other, their testimony cannot be thrown overboard by the court.

14. Now, we deal with one of the main arguments raised by learned amicus curiae that if the defence is able to establish and prove on the preponderance of probability that First Information Report in the instant case has been made ante-timed and ante-dated then it would strike at the very substratum of the prosecution case and make the entire prosecution story set up in the First Information Report highly doubtful and it demolishes the entire prosecution case. We may profitably refer to an observation made by the Apex Court in the Marudanal Augusty Vs. State of Kerala 1980 (4) Supreme Court Cases 425 as follows:-

" ..............................The High Court, however, relied on another aspect of the matter, viz, that as there was no animus between Pws 1 to 6 and the accused, there was no reason to disbelieve them. The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence."

15. We find that there is yet another glaring shortcoming on the part of the prosecution which lends credence to defence plea of ante-timing of the First Information Report. In this behalf, learned amicus curiae has drawn attention of this Court to the copy of the chick report/First Information Report received by Chief Judicial Magistrate, Shahjahanpur on 25.1.2002 regarding which an endorsement has been made on its top. Constable Pradeep Kumar Singh, PW 7 who proved registration of the case has admitted in his cross-examination that since Dak Vahi for which special report was sent to higher authorities including the court is not before him, therefore, he cannot say as to when the same was dispatched and received by them. The Investigating Officer, Ishendra Singh, PW 4 is also completely silent on this vital aspect of the matter of sending of special report to the Magistrate and other authorities as envisaged under Section 157 of Code of Criminal Procedure. Pradeep Kumar Singh, PW 7 was given a definite suggestion by the defence that First Information Report has been prepared ante-timed and ante-dated.

16. The view taken by Apex Court in Maharaj Singh Versus State of Uttar Pradesh 1994 5 SCC 188 has been approved in recent decision of Apex Court in Sudarshan and another Versus State of Maharashtra 2014, Lawsuit (SC) 479 which read as under:-

"12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P.C., is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante- timed and had not been recorded till the inquest proceedings were over at the spot by PW 8."

17. In the recent case of Sunil Kundu and another Versus State of Jharkahand 2013 2 SCC (Criminal) 427, the Apex Court had the occasion to deal with a case in which the investigating agency was found to be extremely inefficient and negligent. Though in that case there was no finding about the ante-timing of the FIR or any deliberate dishonesty done by the investigating agency against the accused yet the incompetence was of such an extreme nature that it did not fail to deleteriously affect the prosecution case. The Hon'ble Supreme Court was constrained to observe as follows:

"2. This case is a glaring example of how cause of justice can be defeated by inefficient, lackadaisical and incompetent investigating agency. As we go ahead, the reasons for these observations would be clear."

18. It has been argued that according to the First Information Report, after the incident, PW 1 immediately took the deceased to District Hospital, Shahjahanpur where she was declared brought dead by the doctor. On being cross-examined PW 1 has stated that while going to Shahjahanpur, Police Station Madanapur lies in the way. However, he did not take his wife to the Police Station and directly went to the hospital. At Madanapur tri-crossing, he found a private jeep and there some police constables and a Daroga were also present and from there, the said Sub Inspector (Daroga) had sent one constable along with them. He has stated that;

" enukiqj Fkkus eSa viuh iRuh dks ysdj igys Fkkus ugh x;k igys vLirky x;kA frjkgs ij izkbosV thi fey x;hA ogka ij flikgh o njksxk th FksA njksxk th us ,d flikgh dks ge yksxksa ds lkFk vLirky Hkst fn;kA njksxk th us eq>ls fjiksVZ dks dgk Fkk ysfdu ge viuh ?kk;y iRuh dks igys vLirky ys x;sA"

It is argued that this improvement has been made by PW 1 in the court in order to explain the shortcoming of prosecution inasmuch as the deceased was brought dead by a Constable of Police Station Madanapur and not by the informant at District Hospital Shahjahanpur.

19. He took his injured wife to hospital. This statement of PW 1 has been contradicted by PW 2, Hardeo Singh which is quoted below:

"enukiqj ls 'kkgtgkaiqj ge yksx dkaV gksdj vk, FksA enukiqj esa tc ge yksx 'kkgtgkaiqj dks vk, Fks ml le; dksbZ njksxk flikgh ges ugha feyk FkkA tc ge yksx enukiqj ls 'kkgtgkaiqj thi ls vk, Fks rks dksbZ enukiqj Fkkus dk flikgh enukiqj ugh feyk Fkk vkSj u ge yksxksa ds lkFk 'kkgtgkaiqj vLirky vk;k FkkA"

20. According to inquest report, the deceased was brought dead by the constable 575, Jamadar Singh Yadav, Police Station Madanapur, District Shahjahanpur. This material contradiction between statements of PW 1 and PW 2 also demonstrates that the prosecution has not come out with clean hands. The defence argument finds further support from statement of PW 4, the Investigating Officer who has stated that " lqfoUnj flag ds lkFk enukiqj Fkkus ls dksbZ flikgh lkFk esa ugh x;k Fkk] vkSj u Hkstk x;k FkkA".

21. There is yet another glaring feature which supports the defence case that the First Information Report has been made ante-time from the fact that according to PW 4, Sub Inspector, Ishendra Singh, after taking up investigation in his hand on 19.1.2002, he copied down the First Information Report from the General Diary of the registration of the case and then he is stated to have recorded the statement of first informant. Thereafter, it is stated that he went on the spot and recorded the statements of alleged eye-witnesses, inspected the spot, prepared recovery memo of broken piece of Gadali. It may be noted that Investigating Officer made no effort to proceed to District Hospital, Shahjahanpur which lies within the Police Station Kotwali, Shahjahanpur and is at a distance of 25 kms. from Police Station Madanapur to conduct inquest on the dead body of the deceased. On account of above fact, the inquest was conducted by PW 6, Sub Inspector, Satendra Singh posted at Police Station Kotwali, District Shahjahanpur. In his cross-examination PW 6 has stated that on 20.1.2002, he started the inquest proceeding at 12.15 p.m. and till then he has no information about registration of First Information Report in connection with present case. He has categorically stated that the witnesses of inquest Suvender Singh, PW 1 and Mahesh Pal Singh, scribe of the First Information Report also neither informed him about registration of First Information Report nor he had asked about it from them. He has admitted that he had conducted the inquest on the basis of information received at Police Station Kotwali, District Shahjahanpur on 19.1.2002 at 20.20 p.m. The fact that first informant and scribe of the First Information Report are witnesses of inquest and First Information Report had really come into existence as alleged by the prosecution on 19.1.2002 at about 11.15 p.m. then certainly first informant would have given the copy of the First Information Report to PW 6 and the crime number and other details would have been mentioned in the inquest report. The inquest report and spot papers prepared at the time of inquest were dispatched along with the dead body after concluding the inquest proceedings. For the sake of repetition, it may be recorded here again that none of the spot papers, namely, Form-13 (Challan Lash), photo challan nash, report of CMS bears crime number, sections and other particulars of the case which unerringly points that till that stage the First Information Report was not in existence. Copy of the chick report was also not sent along with inquest report which is quite apparent from the bare perusal of the same. We find sufficient merit in the submission of Sri Vashishta that taking holistic view of the facts on record, the First Information Report appears to have been made ante-timed and ante-dated.

22. The whole exercise of ante-timing the FIR is indulged into with the sole aim & object of augmenting the testimonial worth of the prosecution version and also with sole aim and object of lending credibility and truthfulness to the first informant's version which in most of the cases is substantially the same as given out by other witnesses. It is rare to come across cases where the first informant's version is not identifiable with that of the prosecution version as such, specially in cases where the first informant claims himself to the eye-witness of the occurrence. We may record that it is very surprising and astonishing that Investigating Officer, PW 4 after taking up the investigation made no effort to proceed to Police Station Kotwali, District Shahjahanpur for conducting inquest which is mandatory as provided under Section 174 Cr.P.C as it was a case of homicide. PW 4, the Investigating Officer has not offered any explanation in this behalf.

23. It has been submitted by learned amicus curiae that the prosecution story is highly improbable and unacceptable. The version set up by the prosecution in the First Information Report is that Jasvir intended to commit rape upon the deceased, Smt. Sukhraj Kaur and not to commit her murder. As such there is no reason or occasion for him to chase her who came out of house raising alarm. It is not the case of the prosecution that appellant after entering into the house of the deceased had assaulted her with Gadali and continued to do so while she was running to save her life. It has been argued that it is highly improbable and absurd to believe that the appellant after seeing the PW 1, husband of the deceased and other witnesses coming towards him and appellant would still have chased her and would have caused as many as 20 injuries on the upper part of her body with vengeance and utter hatred. The normal human conduct of the appellant would have been to escape from the place of incident after seeing that the first informant and other witnesses are approaching towards him rather than chasing the deceased and attacking her. We may also record that nature, number and seat of ante mortem injuries sustained by the deceased indicate that she was done away to death by someone with great vengeance in his heart and especially when the broken piece of Gadali was found on the place of the occurrence regarding which the first informant has also not made any reference in the First Information Report. The accused-appellant could not have dared to give so many blows especially on the head of the deceased when according to the PW 1, he and other witnesses were present hardly 70 meters from the place of occurrence. The conduct of the witnesses in witnessing the incident as silent spectators, despite being at such a short distance and not making any effort to save the deceased or to apprehend the accused, creates doubt on their presence at the time of the incident.

24. It is next contended that the medical evidence completely belies the ocular version. In this behalf, we may record that in the post mortem report the doctor noted 20 ante mortem injuries of three different nature i.e. incised wounds, lacerated wounds and contusions. In this regard, the statement of Dr Anil Kumar, PW 5 is relevant who has deposed that all the injuries sustained by the deceased cannot be caused by one and same weapon. In his opinion, the injuries could be result of three different kinds of weapons. The categorical statement of the doctor as well as the nature, seat and size of injuries indicate that besides a sharp edged weapon some hard blunt weapon was also used in the commission of crime. We also find substance in the submission of learned amicus curiae that it is hard to believe that one person alone could have caused so many injuries specially in the presence of husband of the deceased and other witnesses also creates doubt on the version set up by the prosecution.

25. Learned amicus curiae lastly contended that there is no independent witness to support the prosecution case and the witnesses examined by the prosecution are highly interested and partisan. Admittedly PW 2, Hardeo Singh is the cousin (phuphera bhai) of the deceased and resident of a different village. PW 3 is the servant of first informant. Though it is well settled that testimony of interested, partisan or related witness cannot be rejected on this ground alone but it is required that the court has to scrutinize their evidence with great care and caution. We may record that there are several material contradictions between the statements of PW 1, PW 2 and PW 3 which goes to the root of the matter and makes their presence and credibility highly doubtful. Thus, no reliance can be placed on their testimony.

26. For the foregoing discussion, we unhesitantly hold that the reasons given by the trial court for accepting the evidence of Pws, 1,2 and 3 are wholly unsustainable. Therefore, impugned judgement and order dated 2.5.2005 passed by Special Judge (E.C. Act),Shahjahanpur in Sessions Trial No.288 of 2002 (State Versus Jasvir) arising out of Case Crime No.28 of 2002 under Section 302 I.P.C., Polices Station Madanapur,District Shahjahanpur cannot be sustained.

27. The appeal succeeds and is allowed. The conviction and sentence imposed upon the appellant is set aside and the appellant who is languishing in jail since 20.1.2002 is directed to be released from the custody forthwith, if not required in any other case.

28. Sri Sunil Vashistha, learned amicus curiae who has assisted this Court in this appeal, shall get Rs.7,500/- as his legal fees.

29. Let a copy of the order along with lower court record be sent to the court concerned for intimation and its necessary compliance.

Order Date :-12.10.2017

MN/-

(Rajul Bhargava,J.) (Tarun Agarwala,J.)