State vs Sughar Singh
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on : 11.04.2022 
 
                                               Judgment delivered on : 29.04.2011           
 

 
Case :- GOVERNMENT APPEAL No. - 246 of 1985
 

 
Appellant :- State
 
Respondent :- Sughar Singh
 
Counsel for Appellant :- A.G.A.
 
Counsel for Respondent :- K.K. Dwivedi,K.S.Chahar
 

 

 
Hon'ble Om Prakash-VII,J.

Hon'ble Narendra Kumar Johari,J.

(Delivered by Om Prakash-VII, J.)

1. This Government Appeal has been preferred by the State-appellant against the judgment and order of acquittal dated 29.10.1984 passed by XIth Additional District and Sessions Judge, Agra in Sessions Trial No.168 of 1984, State Versus Sughar Singh and others, relating to Police Station Achhnera, District Agra by which the learned trial court has acquitted all the accused-respondents namely, Sughar Singh, Shiv Singh, Sultan Singh and Rohtan Singh of the charged offences under sections 302/34, 342/34 I.P.C.

2. At the very outset, we would like to point out that leave to appeal was granted and appeal was admitted on 30.1.1987. Pending final outcome, two of the accused-respondents namely, Sughar Singh and Shiv Singh expired and appeal in their respect stands abated vide order dated 24.11.2021. We therefore have to adjudicate this appeal only against surviving accused-respondent no.3 Sultan Singh and accused-respondent no.4 Rohtan Singh.

3. Briefly narrated, prosecution allegations against respondents-accused, as mentioned in the written report (Ex. Ka.-1) are that on 30.9.1982 at about 6:00 in the morning, the nephew of the informant namely, Baney Singh went to his field situated in beech ka golahaar to cut the grass / fodder wherein fodder crops were also standing. During harvesting, accused Sughar Singh son of Karan Singh, Shiv Singh, Sultan Singh and Rohtan Singh sons of Shanker reached at the field armed with lathi and danda. All the four accused caught Baney Singh, who was harvesting the fodder, and stated that why he enticed their bhabhi. Now he has come in their clutches. Thereafter, they threatened Baney Singh to kill. At this moment, all the four accused wielded lathi and danda on Baney Singh. When Baney Singh raised alarm, all the four accused tightening the scarf in the neck of Baney Singh strangulated him to death. On hearing the shrieks, villagers Devi Ram son of Suraj Muni, Bhagwan Singh son of Navley, Nawab Singh son of Atar Singh and Jagram son of Rairam, who were working in the nearby fields, reached there and witnessed the incident, but could not save him due to fear. This incident took place around 6:00 A.M. Thereafter, all the four accused took the deceased and his brother to their house, locked them in a room by planting a country made pistol and cartridges near them and ran away from there.

4. Thereafter, a written report of the incident Ex. Ka.-1 was given at the police station concerned by the informant Shiv Ram (P.W.1). On the basis of written report, head constable Kashmir Singh (P.W.9) prepared chik report (Ex. Ka.-8) and registered the case under section 302 / 342 IPC in the G.D. at serial no.23 on 30.9.1982 at 11:00 A.M.

5. The investigation was handed over to S.I. Fateh Singh (P.W.10), who took the statement of the informant - Shivram (P.W.1) and H.C. Kashmir Singh (P.W.9) at the police station concerned. Thereafter, he along with the informant and other police personnel went to the house of accused Sughar Singh, unlocked the room, took out the dead body of the deceased Baney Singh and Nawab Singh alive. He also took in possession the lock and a country made pistol with two cartridges and prepared recovery memo as Ex.Ka.4 and 5. Thereafter, he performed the inquest on the body of the deceased Baney Singh and prepared inquest memo Ex. Ka-12 and other papers relating to inquest. Letters to R.I., C.M.O., photo lash, challan lash, sample seal were also prepared and dead body of the deceased was sent for postmortem examination. Statement of witnesses were also taken. He also inspected the room from where the dead body of the deceased and his brother in injured condition were recovered and prepared site plan Ex.Ka.-13. Inspection was also made at the place of incident and site plan was prepared as Ex.Ka.-14. At that moment, a sickle and fodder were also taken into custody and prepared the fard Ex. Ka.-2. Search was made to arrest the accused, but they did not apprehend. The investigating officer after concluding the investigation submitted charge sheet (Ex.Ka.-15) against the accused Sughar Singh (since died), Sultan, Rohtan and Shiv Singh (since died).

6. Autopsy on the body of the deceased was performed in District Hospital, Agra on 01.10.1982 at 4:30 P.M. by Dr. A.K. Saxena (P.W.7) and he prepared the postmortem report (Ex. Ka-6). The death was caused about one and a half day earlier. The age of the deceased was about 27 years. Rigor mortis had passed away from the upper portion of the body, but was present in the lower portion. Postmortem staining was present at some parts.

The following antemortem injuries were found on the body of the deceased :

1. Contused swelling 7" x 3½" present on left side of face and temple. Underneath, lower jaw bone (mandible) and facial bone (zygomatic) were found fractured.

2. Abrasion ½" x ¼" over the left side of the neck 1¼" from thyroid cartilage on cutting under hyoid bone carotid arteries were found over injury no.1 on both sides.

3. Abrasion ½" x ¼" circular in shape below towards underneath on left side of chest 3 in numbers of 1½" x ½" size and 1½" from mid line.

4. Abrasion ½" x ¼" on lower part of left thigh inner side.

5. Abrasion ½" x ¼" over the left side of back in lumbar region, 2" from mid line.

6. Abrasion 2" x 1" over back and front aspect of left thigh on the upper 1/3 part.

On internal examination of skull and heart, membranes of the head were torn on left side. The head was smeared with blood at the base on the left and there was linear fracture on the left side in the anterior cranial fossa of the base of the skull. Lungs were pale. Both the chambers of heart were empty. Two litres of blood was found present in the cavity. Small and large intestines were empty. Urinal bag was empty. Liver was 2.4 oz full. Spleen was found sliced 12 oz on front side and 4 x 1" on middle aspect. As per opinion of the doctor, death of the deceased was the outcome of shock and haemorrhage as a result of internal injury of the spleen. According to the doctor, spleen injury was sufficient to cause death.

7. Case, being exclusively triable by the Court of Sessions, was committed for trial. Accused appeared and charge against them was framed for the offence punishable under sections 302/34, 342/34 IPC. The charges were read out and explained to the accused-respondents, who all abjured them, pleaded not guilty and claimed to be tried.

8. During trial, in order to prove its case, prosecution examined as many as ten witnesses i.e. P.W.1 Shiv Ram, the informant of the case, P.W.2 Jagram, P.W.3 Dr. S.P. Mishra, who examined the injured Nawab Singh, P.W.4 Nawab Singh, the injured, P.W.5 Sobran Singh, P.W.6 Khajan Singh, P.W.7 Dr.A.K. Saxena, who performed the autopsy on the body of the deceased, P.W.8 Virendra Pratap, the constable who took the dead body of the deceased to mortuary in a sealed condition, P.W.9 Kashmir Singh, the constable who prepared the chik F.I.R and P.W.10 Fateh Singh, the investigating officer of the case.

9. After closing the evidence, statement of the accused under section 313 Cr.P.C. was recorded by the trial court in which the accused denied the entire prosecution evidence and claimed that they were falsely implicated in this case. Documentary evidence was also adduced by the accused in their defence.

10. Trial court after hearing the parties disbelieved the prosecution version and vide impugned judgment and order, acquitted the accused-respondents for the charges framed against them. Hence, this appeal.

11. We have heard Sri Ratan Singh learned A.G.A.-I for the State-appellant as well as learned counsel for the accused-respondents.

12. It was submitted by the learned A.G.A. that the Trial Court did not appreciate the prosecution evidence in correct perspective and reached on a wrong conclusion. View taken by the trial court is not a correct view. P.W.1 Shiv Ram, P.W.2 Jag Ram, P.W.4 Nawab Singh, P.W.5 Sobran Singh and P.W.6 Khajan Singh have supported the prosecution case. Medical evidence also fully supports the oral version. Dead body of the deceased as well as P.W.4 Nawab Singh both were recovered from the house of accused-respondent Sughar Singh (since died). This fact finds support with the inquest report and the witnesses of the recovery of lock. Fact witnesses examined in the matter have categorically stated that initially incident took place in the field of the deceased where the deceased and P.W.4 Nawab Singh were cutting the grass. Accused persons reached there with the weapons assigned to them. Deceased was beaten by them. P.W.4 Nawab Singh was also beaten by the accused persons. Thereafter, the deceased and P.W.4 Nawab Singh were taken by the accused persons to the house of accused Sughar Singh and both of them were kept inside the room of the house of Sughar Singh. Prosecution has also established this fact that after keeping the deceased and the injured inside the room of the house concerned, a country made pistol was also kept there by the accused persons. To substantiate this argument, learned A.G.A. referred to the recovery memo and inquest report and further argued that findings recorded by the trial court in the impugned judgment and order are perverse and illegal. Recovery of dead body of the deceased from the house of accused Sughar Singh itself establishes that incident took place in the manner and style stated by the prosecution witnesses. Thus, argued that appeal be allowed and impugned judgment and order passed by the trial court be set-aside and accused-respondents be convicted and sentenced for the charges levelled against them.

13. Per contra, Sri K.K. Dwivedi, learned counsel appearing for the accused-respondents argued that P.W.1 is not an eye-account witness. First information report was lodged on the basis of improbable and unbelievable story. First incident took place in the field. Dead body of the deceased is said to have been recovered from the house of accused-respondent Sughar Singh (since died) situated in the concerned village. Thus, referring to the aforesaid fact it was further argued that it appears improbable and unbelievable that accused-respondent would collect evidence after committing the murder of the deceased in the field by keeping his dead body in his house. It was further argued that conduct of P.W.4 Nawab Singh is of such nature that he did not resist when he was being taken by the accused-persons from the field to the place of recovery nor the persons / villagers gathered on the way had made any efforts to save P.W.4 Nawab Singh whereas 40 to 50 persons are said to have gathered on the way. It was next submitted that the deceased had six to seven brothers. It is the admitted fact of the prosecution that when accused-persons had taken the deceased and P.W.4 Nawab Singh to the house of accused-respondent Sughar Singh, they passed in front of the house of the deceased. Referring to the aforesaid fact, it was further contended that not raising any alarm by P.W.4 Nawab Singh nor showing any sort of resistance on part of the family members of the deceased at that place and moment creates doubt about the veracity of the version of prosecution evidence. Trial court finding to this effect is in accordance with law and fact. Referring to the medical evidence, it was next contended that none has seen the incident. Deceased was done to death in other manner. His dead body was not recovered from the place from where it is shown to be recovered. It was further argued that death of the deceased did not take place in the manner and style as stated by the said eye-account witnesses. To substantiate this argument, learned counsel for the accused-respondents referred to the statement of the concerned doctor i.e. P.W.7. and further argued that this witness has clearly admitted that death of the deceased took place due to internal injuries sustained in the spleen of the deceased. This witness has also specifically stated that death of the deceased did not take place due to tightening of scarf in the neck. At this juncture, learned counsel for the accused-respondents further argued that the findings arrived at by the trial court in the impugned judgment and order are in accordance with law and evidence. Since view taken by the trial court is a possible view, thus the appellate court has a limited scope to interfere in it until and unless the view taken by the trial court is perverse. In support of his argument, reliance was placed by the learned counsel on the decision of the Hon'ble Supreme Court in the case of Bannareddy & Others Versus State of Karnataka & Others, 2018 0 Supreme (SC) 291. Learned counsel for the accused-respondents further submitted that the recovery of lock is also false, as when it was produced before the court during trial, it was in locked condition whereas witnesses examined by the prosecution have stated that lock was opened from the key taken from the concerned village. It was further submitted that the key said to have been used in opening the lock has not been taken into custody nor any fard was prepared. This fact itself improbablizes the prosecution story. To substantiate this argument, learned counsel for the accused-respondents also referred to the fact mentioned in the inquest report and further argued that nothing is mentioned in it regarding opening of the lock with the help of key.

14. We have considered the rival submissions made by learned counsel for the parties and have gone through the entire record carefully.

15. Findings of the trial court in the impugned judgment and order regarding acquittal of the accused-respondents are as follows :

(i) P.W.1 is not an eye-account witness.

(ii) Statement of P.W.2 Jagram and P.W.4 Nawab Singh also do not find support with the medical evidence.

(iii) P.W.7 Dr. A.K. Saxena, who conducted the postmortem on the body of the deceased, has specifically stated that injury found on the neck of the deceased was not sufficient to cause his death. Cause of death of the deceased is due the injury occurred in the spleen.

(iv) Prosecution has suppressed the origin and genesis of the incident.

(v) Statement of P.W.2 Jagram and P.W.4 Nawab Singh also appear to be improbable and unbelievable as accused persons did not cause any grievous injury to P.W.4, who claimed himself to be present on the spot at the time of incident.

(vi) Deceased and P.W.4 Nawab Singh both were armed with sickle, but they have not retaliated nor have they made any resistance, whereas the accused-respondents were armed only with lathi and danda.

(vii) It is doubtful as to whether the deceased died at the place of occurrence or he was alive. Prosecution case is also doubtful as P.W.4 Nawab Singh, who was also being taken by the accused-respondents, did not raise any alarm on the way and even in front of his house.

(viii) Trial court finding is also that 40 to 50 persons were gathered at the place where the dead body of the deceased is said to have been kept in the house of Sughar Singh, but none of them made any resistance nor they stopped the accused-persons.

(ix) Keeping the country made pistol and cartridges in the room where the dead body of the deceased and P.W.4 Nawab Singh were kept, is also unbelievable and unnatural because accused-person will not collect the evidence keeping the dead body of the deceased in his house.

(x) Trial court has further opined that recovery of dead body from the house of accused-respondent Sughar Singh is also doubtful, as nothing has been mentioned in the inquest report regarding the key of the lock through which lock was opened, which had also not been produced before the court during trial and the lock kept in a sealed cover opened during trial was found in locked condition. Thus, on this basis also, trial court opined that prosecution story is doubtful.

(xi) Witnesses examined in the matter by the prosecution are interested witnesses and their statement is not supported by independent evidence. Medical evidence is also against the oral version of the prosecution witnesses.

16. Court has analyzed the finding of the trial court with the facts and evidence of the present matter. Certainly, in this matter, no fatal injury was caused by the accused-persons to P.W.4 Nawab Singh, who claimed himself to be present at the time of incident. In cross-examination, at one place, this witness has admitted that when he was being taken by the accused-persons to keep them in the room of Sughar Singh (since died), he was helping the deceased on the way. Trial court on this basis was of the opinion that either the deceased was alive at that time or prosecution has cooked up a false story. Statement of P.W.2 Jagram and P.W.4 Nawab Singh regarding the death of the deceased at the place of occurrence also does not find support with the medical evidence, as P.W.7 - the doctor concerned has clearly admitted that the death of the deceased was not the result of tightening the scarf in the neck, yet he died due to injuries found in his spleen. Accused-persons taking the deceased and P.W.4 Nawab Singh passed through the house of the deceased also. If such was the position, as has been admitted by the prosecution witnesses, P.W.4 Nawab Singh, who is said to be alive at that time, must have raised alarm. Not raising alarm at that place also placed the statement of P.W.2 Jagram and P.W.4 Nawab Singh in the category of unreliable witnesses. It is pertinent to mention here that the inquest report prepared in the matter does not find description regarding opening of lock of the room concerned. Only this fact has been mentioned that "by opening the door they took out the corpse (किवाड़ खोल कर लाश को बाहर निकाला).

17. Finding of the trial court to this extent that accused-persons will not keep the deceased and P.W.4 in his house creating evidence against themselves. Opinion of the Court is based on critical appreciation of fact and evidence of the matter. Non-keeping the key of the lock in a sealed cover and non-production of the same before the court during examination also indicates that dead body of the deceased was not removed from the room of the accused-respondent Sughar Singh (since died) in the manner and style stated by the prosecution witnesses. If the prosecution case is taken into consideration, then also it is out of imagination that why accused-respondents will keep the country made pistol and cartridges in the room where dead body of the deceased and P.W.4 Nawab Singh had been kept. Accused-persons will not facilitate P.W.4 Nawab Singh to use the country made pistol against them. If the statement of P.W.2 Jagran is also taken into consideration, he could not see the accused-persons when they were keeping the country made pistol and cartridges in the room concerned from the place where he was standing. P.W.4 Nawab Singh is the brother of the deceased. P.W.2 Jagram is also belonging to same sibling. Prosecution case is not supported by any independent evidence whereas 40 to 50 persons are said to have been gathered in front of the house of accused-respondent Sughar Singh (since died). P.W.1 is not an eye-account witness. Trial court finding that statement of P.W.2 and P.W.4 is also not supported with medical evidence. Conviction of the accused-respondents could not be held only on the oral statement of P.W.2 and P.W.4, as they are interested witnesses and finding of the trial court to this extent cannot be termed to be illegal or perverse. Had the incident taken place in the manner and style as stated by P.W.2 and P.W.4, the people gathered in front of the house of accused-respondent Sughar Singh (since died), who were independent witnesses, would have come forward to state the same fact before the court. Thus, presumption drawn against the prosecution on that ground is also not against the fact and evidence of the present matter. It is an admitted fact of the prosecution that accused-respondents were armed only with lathi and danda. In common parlance, if 40 - 50 persons had gathered in front of the house of accused-respondent Sughar Singh (since died), certainly they would have made resistance and tried to save P.W.4 Nawab Singh.

18. Thus, on close scrutiny of the entire evidence adduced by the prosecution and comparing the same with the finding arrived at by the trial court in the impugned judgment and order in consonance with the law laid down by the Hon'ble Supreme Court in the case of Bannareddy & Others (supra), the Court is of the opinion that finding of the trial court that prosecution has suppressed the origin and genesis of incident is correct and is based on correct appreciation of evidence. The view taken by the trial court in the impugned judgment and order is a possible view. The appellate court will interfere in such type of cases only when there is strong and compelling reasons in the prosecution evidence which dislodge the finding of the trial court itself. Merely, on this basis that witnesses examined in the matter have made statement that dead body of the deceased was recovered from the house of accused-respondent Sughar Singh (since died) whereas prosecution case is not supported with medical evidence, manner and style of the incident stated by the prosecution witnesses is also not believable, then Court is of the view that the trial court has passed the impugned judgment and order after proper appreciation of the evidence and it is well reasoned order. Findings recorded by the lower appellate court in the impugned judgment and the order acquitting the accused-respondents from the charges levelled against them cannot be termed to be illegal, improper or illogical. 19. Considering the entire aspects of the matter, we are of the view that impugned judgment and order passed by lower appellate court is well thought and well discussed and lower appellate court has rightly held that prosecution has not succeeded to prove guilt of accused-respondents beyond reasonable doubt. The accused-respondents are not found guilty for the offence punishable under Sections 302/34, 342/34 IPC. As such, impugned judgment and order passed by lower appellate court is liable to be upheld and government appeal, having no force, is liable to be dismissed.

20. Accordingly present Government Appeal is dismissed and the impugned judgment and order passed by the lower appellate court is affirmed.

Order Date :- 29.4.2022

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