Narad vs State Of U.P.
2018 Latest Caselaw 1999 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 10.8.2018
 
Delivered on 18.8.2018
 

 
Case :- CRIMINAL APPEAL No. - 2310 of 1983
 
Appellant :- Narad
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Smt. P. Srivastava,S.M.A.Abdi Ami Cu
 
Counsel for Respondent :- D.G.A.,A.G.A.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Harsh Kumar,J.

(Delivered by Hon'ble Harsh Kumar, J.)

The present criminal appeal has been filed against the judgment and order dated 21.9.1983 in S.T. No.571 of 1981 passed by 2nd Additional Sessions Judge, Fatehpur, convicting the sole accused for offence under Section 302 I.P.C. read with Section 149 I.P.C. and sentencing with imprisonment for life.

The brief facts relating to the case are that a F.I.R. was lodged by Bhola son of Ram Kishun Mishra at 6:45 a.m. on 2.6.1981 at P.S. Bindki, District Fatehpur at Case Crime No.118 of 1981, under Section 302 I.P.C. regarding the criminal incident of 12:30 a.m. in the night of 1/2.6.1981 at 12:30 a.m. with following contentions:-

"It is submitted that in the night of 4/5.2.1981 a dacoity did take place at the house of his family member Binda Prasad Mishra in which he is a witness; that he had identified Beni and Narad Kori of Village Janta, P.S. Bindki, upon which Beni was arrested about 17-18 days back and due to this reason last night at about 00:30 a.m. when he and his father Ram Kishun Mishra were laying outside their house and the lantern was alighted, on the nail as usual and his brother Ram Manohar was laying on the roof of his house, accused Narad along with 3-4 persons armed with gun, pistol, hockey and lathi arrived and started beating him and his father with the hockeys; that his father caught hold of one of the miscreants and on his alarm Ram Manohar challenged the miscreants from his roof upon which two miscreants/assailants climbed at his roof but when the assailants, who caught, called them they, jumped in the courtyard and after opening main door came out and fired at his father who sustained injuries and fell down. Upon the alarm Pratap Singh with licensed gun Baijnath Tiwari, Dinesh @ Chhokey and Murad Ali etc. with lathies and torches arrived there challenging the miscreants and Pratap Singh made 3-4 fires with his licensed gun upon which the miscreants fled in fields towards East; that Narad, who has his Nanihal in his village was identified by them in the light of lantern and torches; that other miscreants were also clearly seen and can be identified upon being produced; that the injured father was being taken to Khajuha Hospital but he succumbed to the injuries on way to hospital and after bringing back his dead body at home, he is lodging the report."

I.O. prepared the inquest report, site plan, collected the injury report of first informant Bhola and post-mortem report of Ram Kishun deceased and after recording the statements of witnesses as well as collecting the evidence failed to detect the names of 3-4 unknown miscreants mentioned in the F.I.R., and submitted the charge-sheet only against Narad under Section 302 I.P.C. The case was committed to sessions and the Additional Sessions Judge framed the charges against the accused-appellant Narad under Section 302 I.P.C. for committing death of Ram Kishun in the night of 1/2.6.1981 at 00:30 a.m. in Village Ghohra, to which accused-appellant denied and demanded trial.

The prosecution in order to prove the charges produced Bhola, the first informant as P.W.-1, Dinesh and Murad Bux, the eye witnessses as P.W.-2 & P.W.-3, Dr. S.K. Singh, Autopsy Surgeon as P.W.-4, Ramesh Chandra Bajpayee, Pharmacist of P.H.C. Khajuha as P.W.-5, Dr. Yashwant Vishwakarma, the Medical Officer who examined the injuries of first informant Bhola as P.W.-6 and M.P. Singh, the I.O. as P.W.-7. The above witnesses corroborated the prosecution case and proved the documentary evidence on record as Exhibit A-1 to A-17 apart from the material exhibits viz. broken pieces of hockey, bamboo, lathi, empty cartridge, wadding piece, pellets, blood stained dhoti, Janeoo etc. After completion of prosecution evidence the statement of sole accused Narad was recorded under Section 313 Cr.P.C. and the learned Additional Sessions Judge after hearing the parties decided the sessions trial by impugned judgment and order, convicting the sole accused for the offence under Section 302/149 I.P.C. and sentenced him with life imprisonment. Feeling aggrieved the accused has preferred this appeal.

We have heard Sri Syed Mohd. Abbas Abdi, Advocate, learned Amicus Curiae for the appellant and learned A.G.A. for the State and perused the paper book, record of appeal as well as the record of court below summoned in the appeal.

Learned Amicus Curiae for the appellant has submitted that there are material contradictions in the statements of prosecution witnesses; that there was no source of light and admittedly it was a dark night; that though the light of lantern is alleged to be available but the place of lantern has not been shown in the site plan; that moreover the alleged alighted lantern was at a great distance and height and could not have provided sufficient light so as to identify the miscreants; that the prosecution story that two miscreants climbed on the roof of Ram Manohar, the brother of first informant from the outside well and jumped in his courtyard (not coming down by stairs), are quite vague and highly improbable; that the prosecution has failed to produce Satyadev Agnihotri scribe of F.I.R., Ram Manohar, the brother of first informant the other son of deceased or the independent witnesses Pratap and Baijnath (Pratap allegedly made fires upon which the miscreants fled away) and has not assigned any reason for their non-production; that for not producing above witnesses, who could have thrown better light about the incident, adverse inference should be drawn against prosecution to the effect that, had above witnesses been produced, they would not have corroborated the prosecution case; that P.W.-2 Dinesh has stated that he could not identify any of the miscreants and so the testimony of P.W.-1 Bhola, the first informant and P.W.-3 Murad Ali, who are interested witnesses and also inimical to accused-appellant being witnesses against him in the dacoity case, (with regard to incident of dacoity in the house of Bindra Prasad, may not be relied, as also in view of the material contradictions therein; that there was property dispute between the deceased and his sons on one side and accused-appellant on the other side, due to which the accused-appellant was earlier falsely implicated in the case of dacoity at the house of Binda Prasad and subsequently in this case; that the accused-appellant had no motive to cause death of Ram Kishun or cause injuries to the first informant on account of his false implication in the case of dacoity at the house of Bindra Prasad or otherwise; that admittedly the accused-appellant did never threaten the first informant or asked him to abstain from giving evidence against him; that in any case if at all since the accused-appellant is alleged to be having grudge against the first informant (for identifying him and his brother Beni in the case of dacoity at the house of Bindra Prasad), there could have been no reason for accused-appellant to spare the first informant by causing only simple injuries on non-vital parts of his body and causing death of his old father; that post-mortem report of deceased states that the deceased sustained 9 injuries including 3 abrasions, 5 incised wounds and 1 gun shot wound, which were sufficient for causing his death in ordinary course of nature and the cause of death was fire arm injury; that the prosecution has failed to explain the 5 incised wounds on the person of deceased while none of the accused is alleged to be armed with any sharp edged weapon; that it appears that the incident of dacoity by unknown miscreants was committed in the midnight and upon protest by deceased fire made by unknown miscreants hit Ram Kishun deceased on vital part of his body resulting in his death and since the miscreants could not be identified, the appellant has been falsely implicated due to old enmity of property dispute; that learned trial court misinterpreted the evidence on record and acted wrongly in believing the untrustworthy and unreliable evidence of interested witnesses; that there was no evidence on record regarding formation of the unlawful assembly and none of the other miscreants could be arrested or identified; that learned trial court framed charge against accused-appellant, simplicitor under Section 302 I.P.C. and acted wrongly and illegally in convicting him for the offence under Section 302/149 I.P.C. without framing any charge under Section 149 I.P.C. and so the impugned judgment may not be allowed to stand; that the impugned judgment and order of conviction under Section 302/149 I.P.C. is absolutely wrong, illegal and is liable to be set-aside and by giving benefit of doubt accused-appellant is entitled to be acquitted.

Per contra, learned A.G.A. supported the impugned judgment and order and contended that prosecution has fully proved the charges against accused-appellant, appeal has been filed with wrong and baseless allegations which is liable to be dismissed.

The injury report of first informant Bhola aged about 40 years Exhibit A-4 duly proved by P.W.-5 & 6 shows that his injuries were examined at 11:50 a.m. after considerable delay on 3.6.1981 wherein all his seven injuries were found to be contusions and abrasions or contused abrasions on non-vital parts of body and were found to be simple in nature, caused by blunt object duration about 1½ day old, which are as follows:-

"1- नीलगू निशान 5 सी.एम X 1 सी.एम. बाई ऊपरी भुजा के बाहर की ओर बाहरी Epicondyl से 10 सी.एम ऊपर।

2- नीलगू निशान 6 सी.एम X 2 सी.एम बाई अग्र भुजा पर पीछे की ओर वाहरी Epicondyl से 6 सी.एम नीचे।

3- चोट की सूजन 5 सी.एम X 3 सी.एम दाहने अग्र बाहु के पीछे की ओर radius bone के नीचे के सिरे से 3 सी.एम ऊपर।

4- खराश दार निलगू निशान 9 सी.एम X 3 सी.एम पीठ पर बाई ओर Scapula bone के नीचे वाले angle से 11 सी.एम नीचे

5- नीलगू निशान 5 सी.एम X 2 सी.एम बाये टखने पर बाहर की ओर tibial tuberosity से 7 सी.एम नीचे।

6- खराश 1 सी.एम X 1 सी.एम टखने पर सामने की tibial tuberosity से 4 सी.एम नीचे।

7- कुछ कुचला हुआ घाव 1 सी.एम X सी.एम X Skin deep दाहनी उँगली के अंतिम खन्ड के अन्दर वाली सतह पर।

(2) सभी चोटे साधारण थीं और किसी कुन्द आला मसलन डन्डा से आना संभव थी। चोट नं0 1, 3, 5, 7 हाकी से भी आना संभव। वैसे हाकी और डंडा दोनों को मैं blunt object कहूँगा। Duration 1दिन था।"

The above injury report shows that none of the injury is on any vital part of body rather all injuries are of simple and superficial nature. Due to above injuries no fracture is alleged to have been caused to the first informant. As against it the father of first informant sustained 9 anti-mortem injuries as per his post-mortem report Exhibit A-2, duly proved by P.W.-4, which are as follows:-

"1) Incised wound 3" x ½" x scalp deep on left side of parietal area 4" above the left ear, 2" above left eyebrow.

2) Incised wound obliquely place 2½" x ½" x scalp deep on right parito frontal area 3" above the right eyebrow, 3½" above the right ear.

3) Incised wound 2" x ½" x scalp deep on right side of skull ¼" below the injury number 2.

4) Incised wound on left side of forehead 1½" x ¼" x scalp deep, 2" above the bridge of nose ¼" lateral to mid line.

5) Gun shot wound of entry 1" x 1" x abdominal cavity deep on right Lypochondrum 5" above the umbilicus at 10:00 O' clock position blackening and tatooing present direction right yto left medially & posterially.

6) Abrasion 2" x 1½" on left side of chest 2½" below the left nipple at 6:00 O' clock position.

7) Abrasion 1½" x ½" on ulnar aspect of left forearm 4" above the wrist joint.

8) Abrasion ½" x ½" on middle of dorsum of right hand.

9) Incised wound ½" x ¼" x skin deep on radial aspect of left middle finger at second inter phalyngeal joint."

The description of ante-mortem injuries of Ram Kishun deceased shows that apart from injury no.5, the gun shot wound injury nos.7, 8 & 9 are abrasions and skin deep incised wounds on hand and all the rest 5 incised wounds are on vital parts of body and are grievous in nature. Apart from it he also sustained gun shot wound from a close range and apart from 20 small pellets one wadding piece was also recovered from his body and there was blackening and tatooing present over the gun shot wound.

Upon hearing the parties counsel and careful consideration of evidence on record, we find that as per allegations made in F.I.R. accused-appellant Narad with his 3 or 4 unknown associates armed with gun (Bandook), Pistol (Tamancha), hockey and lathi came at the place where first informant and his father were laying on two cots, outside the house in midnight and started beating them with the hockeys. It has also been alleged that one of the miscreants was caught by father of the first informant, the deceased and on the alarm raised by first informant his brother Ram Manohar challenged the miscreants from roof of his nearby house, upon which two miscreants climbed over his roof and upon call of their associate jumped on floor in his courtyard and after opening the main door of the house of Ram Manohar came out and fired at his father. In the F.I.R. no specific role of firing has been assigned to accused-appellant and no specific weapon has been assigned to him. In his statement as P.W.-1 the first informant has stated in para 2 that one of the miscreants came from the roof of his brother Ram Manohar and fired at his father but still it has not been alleged that the above fire on his father was made by accused-appellant Narad. In the last line of para 3 he has stated that Narad was armed with pistol while in para 19 of his statement he has specifically stated that fire was made on his father by the miscreant who was armed with gun (Bandook). He has also stated that since he identified accused-appellant and his brother Beni in the case of dacoity at the house of Bindra Prasad so they were having grudge against him, but in para 9 of his statement he has stated that in that case Bindra Prasad is the complainant and his father Ram Kishun deceased was not a witness and apart from him, Ram Bharose, Nanku Nai and Murad Ali (P.W.-3) were witnesses in that case. He has also stated that accused-appellant or his brother Beni never threatened him or other witnesses since dacoity at the house of Bindra Prasad or murder of his father.

P.W.-2 Dinesh in his statement on oath has stated to have seen the incident in question but could not identify the faces of miscreants. He has been declared hostile and in his cross examination by the State nothing material has come out.

P.W.-3 Murad Bux, who is also an eye witness with first informant in the case of dacoity at the house of Bindra Prasad, has stated that on the alarm he along with Chhokey, Baijnath and Pratap arrived at the place of incident and seen 6-7 persons at the spot, as against 4-5 mentioned by the first informant in the F.I.R. as well as in statements of P.W.-1 & P.W.-2. The above witness in para 1 of his statement has stated that he seen that Narad who jumped from the atari (roof) of Ram Krishna (the deceased) and fired at him with the pistol and Ram Manohar was there on his roof. The above witness in his cross-examination has been contradicted with his statement under Section 161 Cr.P.C. wherein he had stated that Narad Kori was committing mar-pit and fired at Ram Kishun with the gun. Upon being contradicted he has resiled from his statement under Section 161 Cr.P.C.

With regard to causing of fatal gun shot injury to deceased Ram Kishun P.W.-1, the first informant, who was at a very close distance from his father (4-5 steps) has not assigned any specific role of firing to accused-appellant Narad and the statement of P.W.-2 does not throw any light while the statement of P.W.-3 about Narad having jumped from the roof of Ram Krishna deceased and fired at him with pistol is unreliable and self-contradictory because it is not the prosecution case that miscreants climbed on roof of deceased and jumped therefrom rather two of them were allegedly climbed on roof of Ram Manohar, the son of deceased.

P.W.-1 has stated that at the time of incident it was a dark night and there was light of lantern which was alighted at a distance on wall in Varandah of his house at the height of 7-8 feet and was providing sufficient light. He has further stated that he and his father were laying on two cots at a distance of 8-10 steps from the main door of his house and there was distance of 3-4 cubits between their cots. In para 16 of his statement he has stated that Chottan Bajpai and Shanker also seen the incident and Murad Ali (P.W.-3) was at a distance of about 40 steps from the place of mar-pit while Chhokey, Pratap and Baijnath were seeing the incident from the house of Ram Jeevan at 30 steps in south from the place of mar-pit.

Undisputedly at the time of incident in 1981 when there used to be no power supply in villages, the villagers ordinarily used to keep the lantern alighted during the whole night and usually at night when they used to go to sleep, they had to make the lantern dim. We find force in the arguments advanced by learned Amicus Curiae for the accused-appellant that it could not be afforded to keep the lantern alighted with full or high flame during the whole night, because if a lantern is left alighted with high flame it will Firstly make the glass of lantern dark by the flame of lantern, diminishing/reducing light and Secondly the fuel/kerosene in small lantern tank will finish in the midnight.

The first informant P.W.-1 has stated in para 19 of his statement that the miscreants with gun (Bandook) fired at his father and when he was beaten with hockey he came down from the cot but did not flee rather remain standing at a distance of 8-10 steps from his father when fire arm injury was caused to him. As against him, his witness P.W.-3 Murad Bux, who is alleged to have seen the incident from a distrance of 40 steps by the side of house of Langad Kori (not shown in site plan Exhibit A-13) has stated in para 5 of his statement at page 40 of the paper book, that "when miscreants started beating Ram Kishun (deceased) Bhola fled away in jungles towards South and when Bhola had left the miscreants made fire. Apart from above there are material contradictions with regard to the availability and quality of light of lantern or torches at the spot.

According to the prosecution case in F.I.R. and in statement of P.W.-1 the first informant the incident in question was committed by Narad Kori and his 3-4 unknown associates on account of identification of accused-appellant Narad and his brother Beni by the first informant Bhola in the case of dacoity at the house of Bindra Prasad. In the circumstances, it is highly improbable that when the miscreants committed the incident due to grudge with a particular person, Bhola, the first informant, they spared him by causing only simple and superficial injuries on non-vital parts of his body, despite the fact that he was a witness against them and committed death of his old father, who was not even witness against them.

It is noteworthy that the deceased aged about 60 years who had sustained 4 scalp deep incised wounds is said to had caught hold of one of the miscreants but the first informant who is a young man of 40 years and was nearby his father is not alleged to protest with miscreants or provided help to rescue his father (rather fled towards Jungles) and similarly his brother Ram Manohar is not alleged to have come for rescue of his brother and father from nearby house, while miscreants allegedly came from his roof and fired at his father. The above conduct of first informant and his brother is highly unnatural which further makes prosecution case doubtful and unreliable particularly in view of self-contradictory evidence. The statement of P.W.-3 Murad Bux, that at the time of incident, when miscreants started beating the deceased, first informant rushed to jungles carries weight and shows that he did not see the person who fired at his father. The P.W.-3 also claims to have seen the incident from a great distance of 40 steps and can not be in a position to identify the assailants in dark night in the alleged dim light of lantern from such a distance.

In view of above material contradictions, discrepancies in medical evidence, vague allegations about the source and amount of light at the place of occurrence and no motive with the accused-appellant or his associates for causing grievous injuries to and death of Ram Krishna, we find that prosecution has failed to prove its case by any cogent, reliable and trustworthy evidence beyond reasonable doubt. In view of the evidence on record, possibility of committal of incident of dacoity by some unknown miscreants in the midnight may not be ruled out. Further for not identifying the miscreants for want of sufficient light or otherwise, the possibility of false implication of accused-appellant on the basis of suspicion may also not be ruled out. Since the accused-appellant admittedly did never threaten the first informant or other witnesses since the times of his identification parade in the case of dacoity at the house of Brinda Prasad or even after murder of his father, there can be no motive of accused-appellant to spare the first informant by causing simple and superficial injuries and committing grievous and fatal incised and gun shot wounds to his old father. We are of the considered view that the prosecution has failed to prove the charges against the accused-appellant beyond reasonable doubt.

In view of discussions made above, we are of the considered view that learned trial court has acted wrongly and illegally in convicting the accused-appellant for the offence under Section 302/149 I.P.C. despite there being no charge under Section 149 I.P.C. and no evidence at all regarding the formation of unlawful assembly and committal of death of father of first informant by accused-appellant Narad and his associates in prosecution of common object of such unlawful assembly. The impugned judgment and order of conviction and sentence is liable to be set-aside and accused-appellant Narad Kori is liable to be acquitted by giving him benefit of doubt.

The appeal is allowed. The impugned judgment and order dated 21.9.1983 of conviction of accused-appellant Narad Kori under Section 302/149 I.P.C. and sentence of imprisonment for life are set-aside and appellant is acquitted of the charges. The accused-appellant is on bail. His personal bonds are cancelled and sureties are discharged. He need not to surrender unless wanted in some other case.

The material exhibits, if any, shall be disposed off after statutory period in accordance with rules.

We appreciate the valuable assistance rendered by learned amicus curiae Sri Syed Mohd. Abbas Abdi, Advocate.

Let the lower court record be sent back to court below forthwith along with a copy of this judgment, for ascertaining necessary compliance, if any.

Order Date :-18/08/2018

Kpy

Case :- CRIMINAL APPEAL No. - 2310 of 1983

Appellant :- Narad

Respondent :- State Of U.P.

Counsel for Appellant :- Smt. P. Srivastava,S.M.A.Abdi Ami Cu

Counsel for Respondent :- D.G.A.,A.G.A.

Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Harsh Kumar,J.

Sri Syed Mohd. Abbas Abdi, Advocate was appointed as Amicus Curiae in this case.

Registrar General of this Court is directed to pay an honorarium of Rs.11,000/- to the learned amicus curiae for rendering effective assistance in the matter. The said amount be paid to him within two months.

Order Date :-18/08/2018

Kpy