Birma And Another vs State Of U.P.
2018 Latest Caselaw 654 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Case :- CRIMINAL APPEAL No. - 997 of 1989
 
Appellant :- Birma And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Virendra Singh
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Harsh Kumar,J.

(Delivered by Hon'ble Pradeep Kumar Singh Baghel, J.)

The appellants have preferred this criminal appeal against the judgment and order dated 03rd March, 1989 passed by the Vth Additional District & Sessions Judge, Aligarh in Session Trial No. 454 of 1988 (State v. Birma and another) convicting and sentencing both the appellants, namely, Birma and Guddi under Section 302/34 of the Indian Penal Code1 to imprisonment for life.

The deceased--Beni Singh was son of the accused-appellant no. 1 and husband of accused-appellant no. 2.

P.W.-2 Raghuvir submitted a written complaint (tehrir) on 09th May, 1988 before the Station House Officer of Police Station Dehli Gate, District Aligarh wherein he mentioned that appellant no.1--Birma has illicit relationship with his daughter-in-law Guddi, wife of his son Beni Singh. The said relationship was known to the locality. For the said reason in the night (8/9th May, 1988) both the accused-appellants have murdered Beni Singh and they were preparing to dispose of his body. The incident of killing Beni Singh by the aforesaid two accused-appellants was witnessed by Maharaj Singh and Mahesh Chandra, who are residents of Nagla Mahtab, Police Station Dehli Gate, District Aligarh, and some other people. On the basis of the said complaint (tehrir) a chik first information report2 was prepared and the FIR was accordingly registered at 07.15 A.M. on 09th May, 1988 itself as Case Crime No. 131 of 1988, under Section 302 I.P.C.

The investigation was entrusted to P.W.-8 Sub-Inspector Rajpal Singh. The police reached the spot and seized a bloodstained mattress and some cloths and fard of the said articles was prepared (Exh.Ka-1). The police also seized some articles, which are used for cremation such as shroud (a seven meter new white cloth, known as Kafan), five pieces of bamboo which were cut for carrying dead body, camphor and some other pooja articles, and prepared fard thereof and marked as Exh.Ka-2. It has also taken the bloodstained earth (Exh.Ka-3), and seized on the spot a kerosene oil lamp (Deepak) (Exh.Ka-4).

The inquest of the dead body was conducted by P.W.-7 S.I. O.N. Sharma on the same day which was started at 08.30 A.M. and completed at 09.45 A.M.. The body of the deceased was sent for post-mortem and it was received at District Hospital, T.B.C., Aligarh and the post morten was conducted by P.W.-5 Dr. H.L. Bansal at 4.15 P.M..

After completion of the investigation, a charge-sheet was submitted on 15th May, 1988 by P.W.-8 Rajpal Singh. In the charge-sheet 16 witnesses were cited, out of them 8 witnesses were examined. The Magistrate committed the matter to the Court of Session on 23rd June, 1988.

The Session Court (trial Court) framed the charges on 29th July, 1988 against the accused-appellants for commission of offence punishable under Section 302/34 I.P.C. The trial Court commenced on 05th September, 1988.

In support of its case the prosecution has examined eight witnesses, namely, PW.-1 Shishupal, who is a formal witness and has proved the recovery of articles mentioned above recovered from the place of occurrence; P.W.-2 Raghuvir, who is the first informant and is witness of fact; P.W.-3 Maharaj Singh, who is an eye witness; P.W.-4 Constable Barjor Singh, who has carried the dead body of the deceased for the post-mortem and is a formal witness; P.W.-5 Dr. H.N. Bansal, who has conducted autopsy; P.W.-6 Head Constable Brijesh Kumar, who has prepared the chik FIR; P.W.-7 S.I. Onkar Nath Sharma, who conducted the inquest; and, P.W.-8 S.I. Rajpal Singh, who was the Investigating Officer.

The prosecution has filed various documents, amongst others, Exh. Ka-1 recovery memo of bloodstained cloths which was proved by P.W.-1; Exh.Ka-2 recovery memo and supurdginama of shroud which was proved by P.W.-1; Exh.Ka-3 recovery memo of bloodstained and plain soil, proved by P.W.-1; Exh.Ka-4 recovery memo and supurdaginama of kerosene oil dibbi, which was also proved by P.W.-1; Exh.Ka-5 written report of Raghuvir, proved by P.W.-2; Exh.Ka-6 post-mortem report of deceased Beni Singh, proved by P.W.-5; Exh.Ka-7 FIR, which was proved by P.W.-6; Exh.Ka-8 G.D.No. 14, proved by P.W.-6; Exh.Ka-9 inquest report, proved by P.W.-7; Exh.Ka-16 site plan, proved by P.W.-8; and, Exh.Ka-17 charge-sheet, which was also proved by P.W.-8.

The statements of the accused-appellants were recorded under Section 313 Cr.P.C., wherein they denied the charges. Both the accused-appellants submitted their written statements.

The trial Court finding the accused-appellants guilty of the charges of murder convicted them and sentenced to life imprisonment by the impugned judgment and order dated 03rd March, 1989.

I have heard Sri Vinay Saran, learned amicus curiae for the appellants, and Sri Amit Sinha, learned A.G.A.

Learned amicus curiae appearing for the appellants submitted that there are material contradictions in the FIR and the statement under Section 161 Cr.P.C. of the first informant-P.W.-2, hence the statements of P.W.-2 and P.W.-3 cannot be relied upon. He further submitted that in the FIR the first informant, who claims to be eye witness also, has alleged that the deceased was murdered in the night. From the FIR it is also evident that he did not see the incident but he has made improvement in his statement to the Court that while he was going for bath in the early morning, he had seen the incident. Sri Saran has taken us to the statements of the eye witnesses.

Next Sri Saran submitted that there is no evidence that the appellants have murdered the deceased. He also submitted that it is highly improbable that a person would purchase the materials for funeral before murdering another person. He has also drawn our attention to the evidence to demonstrate that there was no source of light as alleged by the witnesses. He has taken the Court to the statements recorded under Section 161 Cr.P.C. too.

Learned A.G.A. has submitted that the contradictions, which have been pointed out by learned amicus curaie for the appellants, do not go to the core of the matter, hence those inconsistencies can be ignored. He lastly urged that the trial Court has correctly appreciated the evidence, hence no interference is called for in the impugned judgment.

I have considered the submissions advanced by the learned amicus curiae and learned A.G.A. and perused the record.

P.W.-2 Raghuvir is the first informant. He has deposed that he is resident of the same locality, where the accused reside. His house is at a short distance from the house of the accused. The deceased was son of the accused-appellant no. 1 Birma. His daughter-in-law is the accused-appellant no. 2 Guddi. He alleged that Birma was in illicit relationship with his daughter-in-law Guddi. Deceased Beni Singh had resented their relationship and had told him (the witness) about their relationship. He further deposed that on the date of occurrence of the incident, he was going to Bagichi (garden) along with Mahesh and Maharaj Singh at about 4.15- 4.30 A.M.. On their way when they had reached near the house of Ram Autar, they heard shriek which was emanating from the house of Birma. When they reached near their house, he saw that Birma was strangulating deceased Beni Singh and his wife Guddi was pushing his upper side of the body. He deposed that he had seen the said incident in the light of moon and a kerosene oil dibbi, which was also kept there. When they saw the said incident, they raised alarm, upon which both the accused-appellants ran away from the scene. Having reached at the platform (chabutara), they found that Beni Singh was dead and there was bleeding from his genital and cloths were soaked with the blood. This witness further deposed that he dictated the report to Maharaj Singh, P.W.-3, to be lodged to police.

In his cross-examination P.W.-2 has stated that at the time of incident the deceased had 3-4 months' old baby girl. He stated that in the report, which he had dictated, he had mentioned that he had seen the incident. He also dictated in the report that Birma was strangulating deceased Beni Singh and Guddi, the accused-appellant no. 2, was pulling genital of the deceased. But he does not know how these statements were not mentioned in the report. His statement was recorded by the I.O. on the same day, wherein he had stated that he along with two other persons were going to bagichi for taking their bath. He deposed that he does not know that why the aforesaid facts, which he had told to I.O., were not recorded. He had also deposed that Birma, accused-appellant no. 1, before killing his son had brought the materials for his funeral. The said fact was also told by him to the I.O.. He further deposed that he had seen the incident from a close distance, which was about 5 paces. He had stated that Beni Singh, the deceased, was a rickshaw puller and was also doing manual work. He was not alcoholic. He has denied the suggestion that on the date of occurrence of the incident Beni Singh had consumed liquor. He had also denied the suggestion that he had strained relation with the father of Guddi, accused-appellant no. 2, who was living in the locality of the witness and for the said reason he has falsely implicated the accused-appellants.

P.W.-3 Maharaj Singh in his statement has deposed that on the date of incident he was going to Bagichi (garden) of Nandan along with one Mahesh and P.W.-2 Raghuvir for taking bath. Upon hearing the shriek coming from Birma's house, when they reached near his house, they found that Birma was strangulating his son Beni Singh and deceased's wife Guddi had caught-hold of his feet. When they raised alarm, both the accused persons ran away from the spot. Having reached at the spot, they found that Beni Singh was dead. After some time other people of the locality also assembled there. He further deposed that he had written the complaint (tehrir) as was dictated by Raghuvir. He also deposed that materials for funeral were also kept there. Regarding the source of light he deposed that there was moon light and a kerosene dibbi was also on the spot. He further stated that in his statement under Section 161 Cr.P.C., which was recorded by the I.O. on the same day, he had mentioned the fact that he and other two persons named above were going to Nandan's Bagichi (garden) for taking bath.

In his cross-examination P.W.-3 stated that the report, which he had prepared, was written on the dictation of Raghuvir. He stated that in the report he had not mentioned the time of the incident nor it was mentioned therein that Beni Singh was strangulating the deceased and Guddi was causing injury to genitals of the deceased. In the written report to the police it was not mentioned that the first informant Raghuvir had also seen the incident. Since the said fact was not dictated by Raghuvir while dictating the report, he had not mentioned this fact. He had sought to explain the said omission by stating that witnessing the incident they were shocked and nervous, hence some of the facts, mentioned above, could not be mentioned to the I.O.. The report, which was dictated by Raghuvir, was taken to the police station for lodging the FIR at about 5.00- 5.30 A.M. and returned from the police station within fifteen minutes. The police arrived at the scene immediately thereafter. In his cross-examination he also stated that in the FIR the fact regarding the source of light was omitted. He also stated that deceased Beni Singh had told him about the illicit relationship between his father and wife, though this fact was not mentioned in the FIR but he had told the I.O. regarding the said fact. He also stated that he had told the I.O. that the accused-appellants had made preparation for funeral of the deceased as some of the materials used in funeral were kept on the scene. He had denied the fact that the deceased was alcoholic.

P.W.-5 Dr. H.N. Bansal in his statement has deposed that he had conducted autopsy at 04.00 P.M.. The deceased was about 26 years old. He had found following ante-mortem injuries on the body of the deceased, as are mentioned in the post-mortem report:

"(i) Abrasion 6 cm. x 1 cm. on right side forehead just above eyebrow.

(ii) Abrasion 2 cm x 1 cm on right side lower lip.

(iii) Abrasion 11 cm x 3 cm on both side chin of face.

(iv) Abrasion 10 cm x 1 ½ cm on both side front of neck middle part.

(v) Abrasion 2 cm x 1 cm on front of left shoulder.

(vi) Abrasion 1 cm x ½ cm on middle of left clavicle.

(vii) Abrasion 6 cm x 4 cm on left iliac area of abdomen.

(viii) Lacerated wound 4 cm x 3 cm x testis on right side scrotum. Right testis protruding out of wound.

(ix) Petechial skin hemorrhagic seen over both side upper chest & clavicle area."

On the internal examination, the Doctor found that hyoid bone was fractured, one tracheal ring fractured, trachea congested. According to the opinion of the Doctor, the cause of death was due to asphyxia due to strangulation associated with shock.

P.W.-8 Rajpal Singh, S.O., had conducted the investigation. In his statement he has mentioned the fact about the articles which he had recovered from the scene and that he has also made fard of shroud (kafan), kerosene oil dibbi, etc. In his cross-examination he deposed that he had reached at the spot in the morning at 08.00 A.M.. The accused-appellant no. 2 Guddi had told him that on the date of incident the deceased had consumed alcohol and the same fact was mentioned by father of the deceased (accused-appellant no. 1). He has deposed that no weapon was recovered. He has also stated that Maharaj Singh and Raghuvir had not told him that they were going to Bagichi for taking bath. He further stated that P.W.-2 Raghuvir and P.W.-3 Maharaj Singh had told him about the illicit relationship between the accused-appellants but they did not tell that they were told about this fact by deceased Beni Singh. He had recovered the materials of funeral on the scene of occurrence. He was not aware of the fact that when the accused persons made arrangement of the articles which are used for funeral. He has also deposed that the witnesses had told him that Guddi had pressed his upper party of the body but both the witnesses did not tell him about bleeding from the genital of the deceased.

The accused-appellant nos. 1 and 2 are father and wife of the deceased respectively. P.W.-2 and P.W.-3 both claim that they have witnessed the incident. The FIR is stated to be dictated by P.W.-2 to P.W.-3 Maharaj Singh. In the short FIR, the first informant--Raghuvir has not mentioned the time of murder and has also not mentioned that he had witnessed the incident. It is clearly stated therein that the said incident was witnessed by Maharaj Singh, P.W.-3, and Mahesh Chandra, who was not examined. P.W.-1 in his statement has stated that he dictated the written complaint to Maharaj Singh because he is an illiterate person and Maharaj Singh after writing the complaint had read over it to him, the first informant. If P.W.-2 had seen the incident, he could have mentioned this fact in his complaint. In the said complaint, the time or source of light has not been mentioned. It is only stated that Birma, accused-appellant no. 1, has illicit relationship with his daughter-in-law Guddi, appellant no. 2, and they have murdered Birma in the night.

In his cross-examination P.W.-2 has stated that the fact that he was going to take bath in Bagichi (garden) was mentioned by him in his report and he had also mentioned that he had seen the incident, but he is not aware why these facts were not recorded in the report. His statement is contradictory on this aspect as he has also deposed that after dictation of the report Maharaj Singh had read over the contents of the report to him and he had recorded the same facts which he had dictated. He had also stated that only after hearing the report, he had signed it. Similar improvement has been made by him in his statement regarding timing of the incident and his presence. In his statement he has stated that he was going to take bath in the Bagichi along with Maharaj Singh and Mahesh Chandra at about 4.00 A.M., but this fact was not mentioned by him in the FIR nor in his statement under Section 161 Cr.P.C. recorded by the I.O.. In his cross-examination he had stated that this fact was told by him to the I.O. and he had also dictated in the report, but he does not know why these facts have not been recorded either in his written complaint (tehrir) or in his statement under Section 161 Cr.P.C.

Relevant it would be to mention that this fact was put to P.W.-8 in his cross-examination, who has categorically denied the same. The I.O. has stated that the fact that P.W.-2 and P.W.-3 were going to have bath when they saw the incident, was never told by these witnesses. Thus, the evidence of P.W.-2 and P.W.-3 regarding their presence at the scene raises reasonable doubt for the following reasons:

(i) This fact was not mentioned in the FIR;

(ii) They did not tell this fact to the I.O. in their statement under Section 161 Cr.P.C.; and,

(iii) P.W.-2 was speaking plain lie when he alleged that he had dictated this fact in the written complaint to Maharaj Singh but he does not know why it was not recorded by him.

As mentioned above, in his examination-in-chief P.W.-2 has clearly stated that after dictating the complaint to Maharaj Singh, P.W.-3, the complaint was read over to him by Maharaj Singh and after hearing he had signed it.

Similar fact has been deposed by P.W.-3 Maharaj Singh that they were going to Bagichi for taking bath. P.W.-8 the I.O. had denied this fact that Maharaj Singh had told him about this fact. There is other material contradiction in the statements of P.W.-2 and P.W.-3. At one place P.W.-2 says that he had seen Guddi pressing upper part of body of the deceased, whereas in his cross-examination he has stated that he had seen the incident from very close quarter i.e. at a distance of about 5 paces and about the role of the accused-appellants he had deposed that Birma was strangulating the deceased and Guddi was holding genitals of the deceased. Similarly, P.W.-3 in his statement has stated that Birma was pressing neck of the deceased and Guddi was holding his feet. When the witnesses have stated that they have seen the incident only from 5 paces, then such a material contradiction about the role of Guddi raises serious doubt about the veracity of their statements. Both the witnesses have stated that they have seen the incident in the light of kerosene oil dibbi. It is a common knowledge that dibbi, which was recovered from the site, does not have any glass cover like lantern, so it is not possible that it would burn entire night till 04.00 A.M.. So there is a doubt regarding source of light also.

From a careful reading of statements of P.W.-2, P.W.-3 and P.W.-8 it can be safely assumed that presence of both the witnesses P.W.-2 and P.W.-3 on the spot during the murder is highly doubtful. The important fact that they had seen the incident in the early morning when they were going to take bath should not have been omitted in the FIR or in the statement under Section 161 Cr.P.C. The statements of both the witnesses are clearly improvement. The omission of this material fact both in the FIR and in the statements under Section 161 Cr.P.C. causes a serious doubt on the credibility of their statements regarding their presence on the scene and at the time of murder.

In view of the serious omission of the material fact in the FIR and in the statements coupled with the fact that P.W.-8 I.O. had clearly denied these omissions in his statement, the statements of P.W.-2 and P.W.-3 do not inspire confidence. There is no other eye witness of the incident. Hence, the trial Court erred in relying on the statements of P.W.-2 and P.W.-3. The finding of the trial Court convicting the accused-appellants only on the basis of evidence of these two witnesses cannot be affirmed.

Yet there is another aspect of the matter. When the police reached at the spot, they found several materials which are used for funeral and prepared fard thereof. P.W.-2 and P.W.-3 in their statements have stated that having seen the incident of murdering, when they reached at the Chabutara, they found the funeral materials on the scene. Thus, from the statements of P.W.-2 and P.W.-3 it is evident that the accused-appellants had purchased funeral materials on the previous day before murdering deceased Beni Singh. This fact is unbelievable that a person will purchase the funeral materials before murdering a person.

Pertinently, from the site plan and the statements of the witnesses it is clear that the accused-appellants have a small house. If they had kept funeral materials, which include a bamboo and other materials, in their house, the victim could have seen it in the previous night when he came to his house. Moreover, the prosecution has not made any effort during the investigation to find out the place from where the funeral materials were purchased. The shop keeper, who sold the funeral material, could have thrown light about the time of purchase of the said materials. No effort was made by the prosecution for eliciting requisite information from the accused-appellant Birma. The presence of the funeral materials on the spot at the time of death also creates serious reasonable doubt in favour of the accused persons. The statements of P.W.-2 and P.W.-3 do not inspire confidence when they state that they had seen funeral materials at the time of murder. This is an additional fact for discarding the statements of P.W.-2 and P.W.-3 that they are not reliable witnesses.

For all the reasons mentioned above, we find that the statements of P.W.-2 and P.W.-3 are not safe to rely upon. There is material contradiction in their statements and they have tried to improve their statements. Both the witnesses have failed to satisfy about the serious omission in their statements under Section 161 Cr.P.C. and lack of material facts in the FIR. The trial Court, in our view, has not properly appreciated the statements of P.W.-2 and P.W.-3 and has passed the impugned order without examining the omissions and contradictions mentioned above.

The finding of the trial Court about the material inconsistencies in the statements of P.W.-2 and P.W.-3 is erroneous. It has not appreciated these contradictions in correct perspective. The trial Court has also not adverted to the material fact that in the FIR the first informant has not stated that he had witnessed the incident and the timing of the incident was mentioned to be in the night, whereas in the Court he has stated that he had seen the murder in the early hour of morning. This aspect of the matter has been totally ignored by the trial Court.

The trial Court has not recorded finding with regard to the fact that the accused-appellants had purchased the materials for funeral before murdering deceased Beni Singh. The trial Court has ignored these material facts only on the ground that the witness was not well educated. The trial Court has recorded a finding with regard to illicit relationship between the accused-appellant no. 1 Birma and his daughter-in-law Guddi, accused-appellant no. 2, on the basis of ocular evidence of P.W.-2 and P.W.-3, but it has ignored the material evidence of the I.O., who had deposed that P.W.-2 and P.W.-3 had made statements to him that the fact regarding the illicit relationship was told to them by deceased Beni Singh. Thus, it was a hearsay evidence and they have no personal knowledge about the said fact.

After careful consideration of the materials on the record and for all the reasons mentioned above, we find that the charges against the appellant nos. 1 and 2 of Section 302/34 I.P.C. are not proved. The impugned judgment and order of the trial Court dated 03rd March, 1989 is liable to be set aside and accordingly, it is set aside. Both the appellants are found not guilty of the charges and they are acquitted. The appellants are on bail. They need not to surrender. Their bail bonds and sureties are discharged, if they are not wanted in any other case.

Accordingly, the appeal is allowed.

Judgement be certified and placed on the record.

Let the record of the trial Court along with a certified copy of this order be sent to the concerned Court below for ensuring compliance of the order.

Material exhibits, if any, be disposed of after statutory period in accordance with rules.

Order Date :- 18th May, 2018

SKT/-

Case :- CRIMINAL APPEAL No. - 997 of 1989

Appellant :- Birma And Another

Respondent :- State Of U.P.

Counsel for Appellant :- Virendra Singh

Counsel for Respondent :- A.G.A.

Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Harsh Kumar,J.

Sri Vinay Saran, learned 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 :- 18th May, 2018

SKT/-