Mangali And Others vs State Of U.P.
2021 Latest Caselaw 11207 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R. 
 
Judgment Reserved on : 23.09.2021 
 
Judgment Delivered on : 07.10.2021 
 
Court No. - 50
 

 
Case :- CRIMINAL APPEAL No. - 291 of 1983
 
Appellant :- Mangali And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- G.S. Chaturvedi,Rajarshi Gupta
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Mishra-I,J.

Hon'ble Naveen Srivastava,J.

[Per Arvind Kumar Mishra-I,J.]

Heard Sri Rajarshi Gupta, learned Amicus Curiae for the appellants, Sri Bhanu Prakash Singh and Sri Rajeev Kumar Rai, learned Brief Holders for the State and perused the material available on record.

By way of instant criminal appeal, challenge has been made to the authenticity, veracity and sustainability of the judgment and order of conviction dated 31.1.1983, passed by the Sessions Judge, Budaun in Sessions Trial No. 176 of 1982 (State vs. Mangli and others), arising out of Case Crime No. 194 of 1981, Police Station - Rajpura, District - Budaun, whereby the appellants have been sentenced to undergo imprisonment for life under Section - 302/34 I.P.C. and two years rigorous imprisonment under Section - 201 I.P.C.

Record reflects that out of the four accused-appellants, accused-appellant no.1- Mangli, accused-appellant no.2- Rajendra and accused-appellant no.3- Toofan expired during the pendency of this appeal. This appeal against them stood abated previously.

Now, in this appeal, Pannoo is appellant no.4, the only surviving accused-appellant, whose case has been argued by Sri Rajarshi Gupta, the learned Amicus Curiae.

Brief facts of the prosecution case, as discernible from record appear to be that an oral report was lodged at Police Station - Rajpura in Sub-District - Gunnaur, District - Budaun on 29.10.1981 at about 10:00 A.M., regarding some incident that took place in Village - Pavsara within the aforesaid police station with the averments that the informant - Latoori son of Natthu Ahar, resident of Village - Pavsara within police station - Rajpura narrated about the incident that the morning, when the informant and his nephew- Aaram Singh, Shyam Lal and Tilak Singh were going for sowing the field of Aaram Singh who was moving ten steps ahead of him on bullock-cart and as soon as the informant along with others reached near the field of Pannoo and Shyam Lal, then Mangli and Pannoo possessing 'lathi', Rajendra possessing gun in their hands and Toofan possessing spear in his hands appeared from behind the bushes. Mangli, Toofan and Pannoo assaulted Aaram Singh with 'lathi' and spear, due to which, Aaram Singh sustained injuries and rendered unconscious. On alarm being raised, Sardar and Ram Swaroop arrived on the spot. The informant tried to intervene but was threatened on gun point by Rajendra. Thereafter, the accused put Aaram Singh in his bullock-cart and took him to their (House of Mangli) home. The informant along with villagers followed them and arrived at the house of the accused, where they saw the thatched roof of the house of the accused (Mangli) under fire and Rajendra was standing on the roof of the house with gun and threatening that in case, anyone comes forward, he will be killed. The accused burnt Aaram Singh and bullock-cart in the burning thatched covering. It was also stated by the informant that enmity, on account of litigation, is going on and in that connection some altercation had taken place between the informant's nephew- Aaram Singh and the accused and on account of that (enmity), accused killed Aaram Singh by throwing him into the burning thatch. The informant rushed to the police station and oral report was lodged around 10:00 a.m., which was noted in the Check F.I.R. at Case Crime No. 194 of 1981, under Sections - 302, 201 I.P.C. on 29.10.1981 (at 10:00 a.m.) at Police Station - Rajpura, District - Budaun, the report was read over to the informant when he appended his signature on it, which is Ext. Ka.1. On the basis of entries so made, a case was registered in the concerned general diary under at case crime number under the aforesaid sections of I.P.C. on the aforesaid date and time at Police Station - Rajpura, which is Ext. Ka.3.

Inquest report in that regard of the burnt piece of human flesh was prepared on the spot on 29.10.1981, which is Ext. Ka.8. The relevant papers prepared on the spot pertaining to the dead body are Ext. Ka.9 and Ext. Ka.10. Similarly, letter to C.M.O. for postmortem is Ext. Ka.11, specimen signature is Ext. Ka.12.

The witnesses and the Investigating Officer concurred that in order to ascertain the real cause of death, the piece of burnt flesh be sent for postmortem examination. Consequently, postmortem examination on the dead body (burnt piece of flesh) of Aaram Singh was conducted on 30.10.1981 at 5:00 p.m. at mortuary Budaun. It was stated that cause of death could not be ascertained as only charred parts of body were available which appeared to be of adult human but the same was preserved for further confirmation by anatomist. Even, sex could not be determined, exact age could not be ascertained. The postmortem examination report is Ext. Ka.2.

The body was not identifiable because it was reduced to the burnt skeleton without specification of age and sex. Relevant to mention that ante-mortem injuries cannot be ascertained because of the charred parts of the body.

The investigation was entrusted to Hari Maya Sharma, the Station Incharge, Police Station - Rajpura. The oral report was lodged by the informant - Latoori, when this witness (I.O.) was present at the police station. The I.O. recorded statement of informant- Latoori at the police station itself and proceeded to the place of occurrence by government jeep at Village - Madhaiya Pavsara at the house of Mangli, where he found the thatch of Mangli under flames which has been depicted in the site-plan by word (B). He got the fire got extinguished by pouring water on it and upon search being made, a part of flesh of human being was discovered. A memo of the same was prepared, which is Ext. Ka.4. A part of the underwear was also found stuck to this human flesh. At the point of recovery, Kalyan Singh son of Ram Ji Lal was also present. He also gave one similar underwear to the I.O.. A similar underwear reassembling the same clothe as the stuck one was also shown to the Investigating Officer, who prepared a memo of the same as Ext. Ka.5, the I.O. also prepared site-plan on the spot, which is Ext. Ka.6, collected ashes of the burnt thatch in one container, bone pieces were kept in another container and the burnt portion of the bullock-cart was kept in a gunny bag under seal. A memo of all the above was prepared on the spot, which memo is Ext. Ka.7. Blood marks were found on the main door of the house of Mangli. Some pieces of the door were taken into possession and a memo of the same was prepared on the spot, which is Ext. Ka.13. Besides this, statement of various prosecution witnesses were also recorded. At the time, when he reached at the house of Mangli, no family member of Mangli was present over there. Entry in that regard has been made in the concerned Case Diary and copy of the same is Ext. Ka.14. Mangli was arrested on 1.11.1981. Recovery of 'lathi' was effectuated from him, the very same day. The 'lathi' was kept in four pieces and a memo of the same was prepared as Ext. Ka.15. Besides this, material exhibits were also prepared. 'lathi' (Material Ext.1), ashes (Material Ext.2), pieces of door (Material Ext.3), burnt pieces of bones (Material Ext.4), underwear (Material Ext.5) and the piece of clothes stuck to the human flesh (Material Ext.6). After completing the investigation, the Investigating Officer filed charge-sheet (Ext. Ka.16) against the accused-appellant.

Consequent upon this, the trial commenced and it was numbered as Sessions Trial No. 176 of 1982 (State versus Mangli & Others). The Sessions Judge, Budaun, vide his order dated 6.5.1982 heard both the sides on point of charge and found prima-facie ground existing for framing charges under Sections - 302/34 and 201 I.P.C. against the accused-appellant. Charge was read over and explained to the accused-appellant, who denied the charges and opted for trial.

The prosecution produced in all seven witnesses. P.W.1 Latoori is the informant, who lodged an oral report at the Police Station - Rajpura regarding the incident. P.W.2 Dr. M.V. Juyal conducted postmortem examination on four pieces of burnt flesh of human being and it was observed in the postmortem examination report (Ext. Ka.2) that it was not possible to know about any ante mortem injuries on account of severe burn. Constable Kunwar Pal Singh P.W.3 has prepared the Check F.I.R. and made relevant G.D. Entry. Constable Rajpal Singh P.W.4 and Constable Saran Singh P.W.5 have testified about safe custody of the pieces of human flesh and its safe conveyance to the Mortuary, Budaun. Tilak Singh P.W.6 is the eye witness of the occurrence and Hari Maya Sharma P.W.7 is the Investigating Officer.

The evidence for the prosecution was closed and the statement of the accused-appellant was recorded under Section - 313 Cr.P.C., wherein, appellant denied the prosecution version and submitted that he was on inimical terms with his brother- Chaturi, who in collusion with Latoori (the informant) has falsely involved him in this case. He was asked to adduce his defence, whereupon he initially wished to give testimony, but he did not adduce testimony.

After considering the merit of the case, the Sessions Judge, Budaun returned finding of conviction against the accused-appellant. Thus, sentencing him under the aforesaid charges and sentenced him as above, vide his judgment and order dated 31.1.1983.

Consequently, this appeal.

Sri Rajarshi Gupta, learned Amicus Curiae for the appellant submits that so far as the involvement of the appellant is concerned, it can be seen from the entire record that the appellant has not played any particular role in this case and the only point for his false implication is that the relationship of the appellant with his brother was not good, but in severely battered position and his brother in collusion with Latoori has got the appellant involved in this case. Otherwise, there was no motive whatsoever for the appellant to indulge in committing in any such offence. The other three co-accused Mangli and his two sons (Rajendra and Toofan) might have a cause of action against the deceased- Aaram Singh, but a cooked up story was set up that the appellant happens to be a relative of co-accused- Mangli, which story when specifically put to the appellant in the statement under Section - 313 Cr.P.C. was flatly denied and it was claimed that the appellant is not related to Mangli. Learned Amicus Curiae further added that there is no corroboration of the incident from any independent source. Both the witnesses are partisan witnesses, relatives and highly interested witnesses. Their testimony is tutored and improved one and it varies from each other, full of embellishments. The case against the appellant- Pannoo is highly different from that of the other co-accused. The accused- Pannoo has been made a scapegoat, for no worthy reason. Except, participation in the occurrence, nothing more has emerged against the appellant. The facts and circumstances also foretell about false implication of the appellant, because the motive assigned for committing the offence on account of landed property and the incident was claimed to have been caused by the other accused Mangli, Rajendra and Toofan, but that motive had got no nexus with the case of the present accused- appellant nor the present accused-appellant had any such motive as he neither is nor was any relative of co-accused Mangli. Consequently, the judgment of conviction is perverse and illegal.

While retorting to the aforesaid argument, learned A.G.A. has supported the judgment of conviction and sentence and claimed that the finding of conviction is just and consistent and the same is based on material on record.

We have also considered above rival submissions.

The moot point that arises for our consideration is primarily confined to fact whether the prosecution has been able to establish its case against the appellant beyond reasonable doubt?

Bare perusal of the F.I.R. indicates that it was orally lodged at Police Station - Rajpura, District - Budaun on 29.10.1981 around 10:00 a.m. after the occurrence took place at 8:00 a.m. at Village - Pavsara. The distance of the place of the occurrence from the police station is shown to be three kilometers. As per the description contained in the F.I.R., the informant- Latoori accompanied his nephew, Aaram Singh along with others, Shyam Lal and Tilak Singh were going to plough the field of Aaram Singh. Aaram Singh was moving ten steps ahead of them on his bullock-cart. It was around 8:00 a.m. when they reached near field of Shyam Lal, when Mangli and Pannoo possessing 'lathi', Rajendra possessiong gun and Toofan possessing spear all of a sudden appeared from behind the bushes. Mangli, Toofan and Pannoo gave assault with 'lathi' and spear to Aaram Singh. Aaram Singh fell unconscious by the assault. Alarm was raised, whereupon Sardar and Ram Swaroop arrived on the spot. The informant tried to save the victim, but Rajendra threatened at gun point. Thereafter, the accused took the victim on his bullock-cart to their home. The informant along with several villagers reached at the house of the accused (Mangli), whereupon he found the thatch under flames and Rajendra was threatening from the roof top that in case anyone tried to intervene, he shall be severely dealt with.

It is alleged that the accused threw Aaram Singh with the bullock-cart in the flames of the thatch and burnt him to death. Thereafter, this report was lodged at 10:00 a.m., the very same day. This report Check F.I.R. is Ext. Ka.1. There is nothing adverse either in the testimony of the prosecution witnesses or prevailing facts and circumstances of this case, which may indicate that the F.I.R. is ante timed because the events allegedly took place around 8:00 a.m., distance of three kilometers was covered by the informant himself and he orally lodged the report at police station - Rajpura. Therefore, the point raised to the extent that F.I.R. is ante timed is not sustainable.

However, insofar as the incident is concerned, obviously it has been disclosed in the F.I.R. that accused are on inimical terms with the informant on account of enmity, due to litigation for the landed property and because of that some altercation also had taken place three days prior to the occurrence. This is the strong motive for committing the crime.

So far as all the accused are concerned, then the three co-accused, say, Mangli, Rajendra and Toofan are related to each other as the father and the two sons. Mangli is father of Rajendra and Toofan. So far as the role of the appellant- Pannoo is concerned, claim is that Pannoo has got nothing to do with the offence in question, for the specific reason that Pannoo has got no connection with the aforesaid three accused, Mangli, Rajendra and Toofan and he is not connected with them in any manner either friendship or he being relative.

However, it has emerged in the testimony of the prosecution witnesses of fact that Pannoo is distant relative of Mangli, but we upon consideration of the entire record fail to come across any such specific relationship having been established by the prosecution in relation to the present appellant- Pannoo qua the other co-accused. The appellant has given statement under Section - 313 Cr.P.C., and in reply to Question No.17, he has stated that his brother- Chaturi has got himself falsely implicated in this case because enmity exists between the appellant and his brother- Chaturi and this has been done by the Chaturi by colluding with the informant- Latoori. Neither in the argument extended by the learned counsel for the State/prosecution nor from record anything in the shape of confirmation to the fact of the appellant being relative of the Mangli is proved. This stray testimony that the appellant- Pannoo is relative of Mangli finds place in the examination-in-chief of Latoori (P.W.1). However, in the examination-in-chief, nothing particular has been stated so as to specifying what relationship the appellant had with the accused. The fact of actual relationship between the appellant Pannoo and co-accused- Mangli being a fact has not been duly proved.

In view of denial of the appellant that he has been falsely implicated on account of enmity with his brother- Chaturi, who colluded with informant- Latoori, we as a measure of caution find it appropriate to determine what purpose was working there in between co-accused Mangli, Rajendra Toofan on the one side and the appellant-Pannoo on the other side because unless and until Pannoo has got any interest in the killing of Aaram Singh either on ground of he being friend of the aforesaid three co-accused or he being relative of them, it becomes out of comprehension that the appellant will participate in such ghastly crime. On both count, a vague statement finds place in the examination-in-chief of Latoori (P.W.1) that accused Pannoo is his relative. Except that no other description.

Nothing specific appears on this particular aspect and this testimony should be treated to be vague and tutored one and it gives vent to the claim of the appellant that some collusion took place between the informant- Latoori (P.W.1) and the brother of the appellant- Chaturi and it has not been proved reasonably that nexus between the co-accused Mangli and the appellant was in fact based on any relationship. Otherwise for what cause or reason, Pannoo, the appellant had any cause for committing any offence of the like nature. If the appellant was standing in any relationship to Mangli, then particular relationship ought to have been specified as was required to be done so as to gather the intention and objective in which Pannoo was interested (in committing the offence). Except, one vague sentence, there is nothing in the entire examination-in-chief of Latoori (P.W.1) that appellant is his relative.

Similarly in the testimony of Tilak Singh (P.W.6), nothing positive has been said about particular relationship between co-accused Mangli and his two sons-the two co-accused, Rajendra and Toofan and the accused- Pannoo, which may indicate that both Mangli along with his sons were related to Pannoo. Once the relationship between Pannoo and Mangli is not established, then the argument advanced to the extent that for what reason appellant-Pannoo would involve himself in the commission of the offence becomes worth consideration. Admittedly, both the witnesses of fact are related to deceased- Aaram Singh.

Thus, here in this case, relevancy of the motive assumes wider dimension insofar as the present appellant is concerned and in that regard, the position of other co-accused, vis-a-vis- the appellant becomes entirely different. The reason is specific, if the appellant is not a relative of Mangli, then how can it be said that he has any cause against the deceased and he would indulge in such crime to settle any score with deceased- Aaram Singh, as such.

We come across fact that whatever dispute was there with deceased Aaram Singh was with Mangli. In the testimony of Latoori (P.W.1), it has emerged in his cross examination on Page No. 26 of the paper book that two-three days prior to the incident, there was some dispute between Aaram Singh- the deceased and Mangli- the another co-accused and the dispute had in its background fact that both Aaram Singh and Mangli were driving their respective bullock-carts coming from opposite direction intercepted each other on the way and on point of giving safe passage, altercation took place between Mangli and Aaram Singh. Therefore, Mangli and his two sons may be interested persons, who had a cause against Aaram Singh. But once it is not satisfactorily that the present appellant is really relative of Mangli, it would not be safe, in the absence of such satisfaction, to impute any motive to the present appellant to commit the crime. Only a casual reference of relationship that appellant is a distant relative of Mangli would not be suffice to prove the fact of appellant being relative.

So far as the testimony of prosecution witnesses of fact against the appellant is concerned, then the same appears to be tutored one, full of improvement and embellishments insofar as it implicates and involves the appellant along with the other three co-accused, who had specific cause against the deceased. Statement of the appellant-Pannoo under Section - 313 Cr.P.C. is self speaking and carries weight and cannot be brushed aside under facts and circumstances of this particular case.

No leading role that the appellant took lead in the commission of the offence has been attributed to the present appellant by the prosecution nor is it reflected in the testimony of the prosecution witnesses of fact in particular Latoori (P.W.1) and Tilak Singh (P.W.6). On this point, the lower court failed to appreciate the evidence and has totally misread the import and the meaning of the statement of the appellant given in reply to question made under Section - 313 Cr.P.C. and for this specific reason, the finding of conviction recorded against the appellant by the trial court becomes perverse and illegal on its face, which is not sustainable, for simple reason that there was no worthy cause for the appellant to commit crime along with the other three co-accused.

We may record our satisfaction that arguments extended on behalf of the present appellant carry force and the same are approved and sustained by us. Consequently we hold in unambiguous terms that the prosecution has not been able to prove its case beyond reasonable doubt against the surviving appellant, namely, Pannoo. Thus, he is entitled to the benefit of doubt.

In the wake of above discussion, we may sum up that the finding of conviction and the sentenced awarded by the trial court is on the face erroneous and perverse insofar it relates to present appellant-Pannoo and the same cannot be sustained in the eye of law. Therefore, the judgment and order of conviction and sentence dated 31.1.1983 passed by the Sessions Judge, Budaun, in Sessions Trial No.176 of 1982, (State Vs. Mangli and others), arising out of Case Crime No.194 of 1981, under Sections 302/34 and 201 I.P.C., Police Station- Rajpura, District- Budaun, is hereby set aside. Accused-appellant no.4- Pannoo is acquitted of all the charges as above.

Accordingly, the instant appeal succeeds and the same is allowed.

In this case, the accused-appellant no.4- Pannoo is in jail. He shall be released forthwith unless and until he is wanted in connection with any other case. The appellant shall ensure compliance of Section - 437A Cr.P.C.

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

Order Date :- 7.10.2021

S Rawat