Sardan And Others vs State Of U.P.
2023 Latest Caselaw 14948 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:108170-DB
 

 
Court No. - 47
 

 
Case :- CRIMINAL APPEAL No. - 2417 of 1983
 
Appellant :- Sardan And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- G.S.Hajela,A.K.Tripathi,Anil Kumar Tewari
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Vinod Diwakar,J.

1. Although eight accused appellants have filed the instant appeal in the year 1983 but when the matter is taken up for hearing today we are informed that five of them namely Iqbal @ Pappu, Chand Khan, Sardan, Mardan, Safdar Ali (appellants no. 1,2,3,4 and 7 respectively) have already died. The three appellants, who survive are Mukhtiyar aged eighty years, Toley aged seventy-five years and Amrullah aged ninety years. All the appellants are aggrieved by the judgment and order dated 06.10.1983, passed by the learned VIth Additional District & Sessions Judge, Shahjahanpur in Sessions Trial No. 171 of 1983, under Sections 147, 148, 149, 452, 307, 302 IPC, Police Station Katra, District Shahjahanpur; whereby they have been convicted and sentenced to life imprisonment under Section 302 read with Section 149 IPC; sentenced to ten years imprisonment under Section 307 read with Section 147 IPC; sentenced to two years imprisonment under Section 147 IPC; sentenced to three years imprisonment under Section 148 IPC; sentenced to seven years imprisonment under Section 452 IPC. All the sentences are directed to run concurrently.

2. The incident herein is of 01.02.1983 at 10.00 PM within the limits of Police Station Katra Sub District Tilhar, District Shahjahanpur in respect of which FIR has been lodged on 02.03.1983 at 12.15 AM. The FIR is thus promptly lodged considering the later hours of the incident and the distance of three miles from the place of occurrence. PW-1 Mindai Lal is the first informant, who happens to be the brother of the deceased. The informant is a resident of village Ramapur Dakshini and was sleeping next to his maternal uncle at his house on the same cot. At about 10.00 in the night, the informant heard gunshots and screams from within the house and on coming out alongwith his maternal uncle, found that various others namely Jevlal son of Natthu Singh, Ram Singh son of Natthu Singh had also come out of their houses and challenged the accused in torch light whereafter they saw the eight named accused coming out of the house, firing. All other accused had firearms except Tauley, who had a sword. It is then said in the FIR that accused Sardan and Mardan had met the informant about 3-4 days back and had complained that he is supporting Parkanu of the village and that he had enticed the daughter of Shadi Khan of village Rajpura. The informant was asked to end the support for Parkanu and return the daughter of Shadi Khan or he would face the consequences. It is alleged that for the above reason the accused have attacked the house of the informant and killed his brother Jaipal. Sulekha wife of Jaipal, Ram Saran son of Ram Swaroop, Shakuntala wife of Sohan Yadav, Arjun son of Sohan allegedly had sustained firearm injuries. The investigation proceeded with the arrival of the Investigating Officer in the wee hours of the night. The carpet, bed sheet and pillow which had blood stains were recovered vide Ex.Ka.2. Certain empties, pellets and tikali were also recovered from the place of occurrence vide Ex.Ka.3. Blood stained and plain soil were also recovered vide Ex.Ka.4. Recoveries were also made of hair, bone, teeth, pellets and cloths from the cot on which the deceased was lying vide Ex.Ka.5. Blood stained and plain cot were also recovered vide Ex.Ka.6. Recovery memo was also prepared of torch vide Ex.Ka.7, whereafter it was given to its owners. Panchayatnama was then conducted at 7.00 AM on 02.02.1983 and the body was sealed and sent to mortuary where postmortem was conducted at 4.30 PM. The cause of death as per the autopsy surgeon was following ante mortem injuries:-

"(i) Firearm wound of entry 3 cm x 3 cm at angle left of mouth with fracture left lower mandible plus left upper palate, margins have blackening.

(ii) Firearm wound of exit 13 cm x 8 cm at right temporal fossa. Brain contents coming out."

The small intestine of deceased was found loaded with fecal matter whereas large intestine was also loaded.

3. The investigation ultimately concluded with submission of a charge-sheet against the eight accused under Sections 147, 148, 149, 452, 307 and 302 IPC. The concerned Magistrate committed the case to the courts of Sessions where it got registered as Sessions Trial No. 171 of 1983. The accused appellants have been charged under the aforesaid sections on 25.03.1983 which the accused denied and claimed to be tried.

4. The prosecution in order to prove its case has produced following documentary evidence:-

"1. FIR dated 02.02.1983 as Ex.Ka.14

2. FIR dated 29.04.1978 as Ex.Kha.8

3. Written Report dated 01.02.1983 as Ex.Ka.1

4. Written Report dated 20.10.1982 as Ex.Kha.1

5. Recovery Memo of Carpet, Bedsheet & Pillow as Ex.Ka. 2

6. Recovery Memo of empty cartridge, pellets & tikali' as Ex.Ka.3

7. Recovery Memo of blood stained & plain soil as Ex.Ka.4

8. Recovery memo of tikali, hair, bone, teeth, pellets & cloth as Ex.Ka.5

9. Recovery memo of blood stained & plain Ban Charpai as Ex.Ka.6

10. Recovery memo & Supurdaginama as Ex.Ka.7

11. Injury Report dated 02.02.1983 as Ex.Ka.17

12. Injury Report 02.02.1983 as Ex.Ka.18

13. Injury Report 02.02.1983 as Ex.Ka.19

14. Injury Report 02.02.1983 as Ex.Ka.20

15. Postmortem Report dated 02.02.1983 as Ex.Ka.21

16. Panchayatnama dated 02.02.1983 as Ex.Ka.8"

5. In addition to the above, the prosecution has produced oral testimony of first informant as PW-1. Out of the four injured only Ram Saran son of Ram Swaroop has been produced as PW-2. The maternal uncle of informant, who was sleeping next to him at the time of incident has also been produced as PW-3. PW-4 is the constable, who took the sealed dead-body to the mortuary. PW-5 is the Investigating Officer against whom serious allegations have been made by the accuesd. PW-6 is Dr. R.K. Awasthi, who had examined the injured and has proved the injury report of the four injured which are exhibits 17 to 20 respectively. PW-6 is Dr. S.K. Kulshresth, who has conducted the autopsy and has proved the postmortem report. On the basis of aforesaid evidence led by the prosecution against the accused appellants, statement of the accused appellants have been recorded under Section 313 Cr.P.C. wherein all the accused have denied it and have specifically alleged that on account of enmity with the Investigating Officer, who happens to be the Station House Officer of the Police Station concerned and had to face magisterial enquiry and FIR at the instance of accused, who have thus been falsely implicated and that witnesses have made false depositions under the influence of the Investigating officer.

6. The defence has also produced its evidence in the form of statement of Umrai Lal DW-1. This witness has alleged that one Tularam, who was the cousin of DW-1 had been shot dead wherein the accused Sardan was a witness. The Investigating Officer, however, falsely implicated Sardan and handcuffed him alongwith one Rafeeq. It is alleged that Tularam was shot dead by a sten gun which was with the Investigating Officer. Complaints, accordingly, were made against the Investigating Officer and the matter was referred to CID. Similarly accused Mardan has appeared as DW-2 and has substantiated the allegations of malafide against the Investigating Officer, who allegedly had acted in a partisan manner to falsely implicate the accused Sardan in the murder of Tularam. DW-3 is Shadi Khan, who has stated that he has only one daughter, who is with her and that none of her daughter had been enticed by any of the accused. He has also contradicted the prosecution case with regard to his daughter having been enticed by Jaipal on account of which allegedly the accused had shot dead the deceased.

7. On the basis of prosecution evidence as also the evidence led by the defense, the trial court vide its judgment and order under challenge has came to the conclusion that the prosecution has established its case beyond reasonable doubt and that the accused was shot dead by the accused appellants. The prosecution case with regard to indiscriminate firing resulting in injuries to four persons was also found proved by the trial court. Since the act of accused were in furtherance of common intent, as such all the accused appellants have been convicted for the aforesaid offence and sentenced to life imprisonment.

8. Sri G.S. Hajela, learned counsel for the appellants contends that the judgment of conviction and sentence is wholly perverse and is contrary to the weight of evidence available on record. It is submitted that neither the motive is established in the present case nor the witnesses have been able to furnish any basis for identifying the accused appellants and that all the accused appellants have been falsely implicated on account of malicious act on part of the Investigating Officer, who was facing inquiry on the basis of complaint made by the accused against him. It is further submitted that the incident occurred in the night and though the deceased was done to death but neither the genesis nor the manner of occurrence is proved by the prosecution. It is urged that the evidence brought on record in no manner establishes the guilt of any of the accused appellants and, therefore, the present appeal is liable to succeed.

9. Per contra, Mrs. Archana Singh, learned AGA for the State submits that all the accused have indulged in a ghastly act of ambushing the house of the informant wherein his brother had been shot dead and four persons have sustained gunshot injuries. It is also submitted that FIR has been promptly lodged and the injured witness, who has seen the incident has categorically deposed against the accused appellants. Submission is that the motive has also been established alongwith the occurrence of incident at the hands of the accused appellants and, therefore, the finding of guilt returned by the court below against the accused appellants merits no interference.

10. We have heard learned counsel for the parties and have carefully perused the materials on record including the trial court records.

11. The incident has occurred during night hours at village Rampura which is at a distance of nearly three miles from the police station. As per the prosecution eight accused armed with tamancha and sword barged into the house of the deceased and shot him dead. It is alleged that on hearing the gun shots the witness woke up and saw the incident. Before adverting to the testimony of the witnesses it would be appropriate to notice the motive for committing the offence. The prosecution urges that the deceased had enticed the daughter of one Shadi Khan and despite the threat extended by accused Sardan and Mardan to return her the deceased had not obliged by returning the daughter of Shadi Khan. It is also alleged that the informant side was supporting one Parkanu with which the accused were annoyed. So far no evidence has been led by the prosecution to establish any enmity of informant with Parkanu or the alleged support to him by the accused person. Regarding the daughter of Shadi Khan being enticed by the deceased is concerned, there is not much of evidence produced by the prosecution to support it. No details have been given by any of the prosecution witnesses as to when the daughter of Shadi Khan was enticed by the deceased Jaipal. There is neither any FIR lodged in that regard nor any other evidence to show that daughter of Shadi Khan had been taken by Jaipal. In this regard the evidence of DW-3 becomes important. DW-3 is Shadi Khan and it is alleged that it was his daughter, who had been enticed by the deceased. Contrary to the prosecution case, DW-3 clearly stated that he has only one daughter namely Asrar Jahan who is still with him. Shadi Khan, therefore, has emphatically denied the prosecution case that his daughter had been enticed by Jaipal or that he or the deceased killed her alongwith the accused appellants. The prosecution has not confronted Shadi Khan with any material to contradict him nor any serious attempt is made during his cross examination to prove him wrong. Shadi Khan is otherwise the person likely to be aware of the facts in this regard and his testimony would be relevant on the aspect of motive. The evidence on record, therefore, clearly proves that the alleged motive for committing the offence has not been established by the prosecution.

12. Law is, however, settled that in a case of direct evidence motive looses much of its significance and it is the truthfulness of the prosecution witnesses which would determine whether the prosecution case can succeed or not. We thus take up the oral testimony of prosecution witnesses one by one.

13. PW-1 is the first informant who has supported the prosecution case. He has supported the prosecution case with regard to motive which we have already disbelieved on examination of the evidence in that regard. As per the informant he had gone to sleep on the same cot next to his maternal uncle (PW-3) in the house belonging to PW-3. He claims that he heard the sound of firearm and also someone exhorted, "kill him!" On hearing the gun shot he came out of the house and in the torch light he saw the incident across the boundary of the house of the deceased. The place of incident is important in the present case and in order to better appreciate the case of the parties it would be necessary to refer to it at this stage. The site plan is a part of the paper book and has been proved by the investigating officer. As per the site plan the house of the PW-3 is situated next to the house of the deceased Jaipal. There exists a sahan (courtyard /appurtenant land) of PW-3 after his house where PW-1 and PW-3 were sleeping next to each other on the same cot. There exists a boundary between the house of PW-3 and the house of the deceased Jaipal. As per the witnesses the height of this boundary is between three to five feet. PW-1 states that its height is 3.5 ft whereas PW-2 specifies the height of the boundary to be about 5 ft. After the boundary there is courtyard/appurtenant land of Jaipal whereafter there exists a Madhai (kind of a room in the village) with thatched roof. The deceased was in this Madhai and his dead body has been found on the cot. As per the prosecution witnesses the height of this Madhai is low and one has to bend in order to enter in the Madhai. The Madhai, however, is surrounded by walls from all four sides. The place of occurrence is the Madhai. What could be seen by the prosecution witnesses PW-1 and PW-3 across the boundary was the open land in front of the Madhai of Jaipal. After the appurtenant land of Jaipal lies the appurtenant land of Ram Saran (PW-2). It is from the common appurtenant land between the house of Jaipal and Ram Saran that there is a passage which allegedly has been used by the accused to flee from the place of occurrence.

14. PW-1 states that from his house he saw in the torch light that certain persons were in the court yard of the house of Jaipal and were assaulting him. This incident allegedly has been seen by PW-1 in the torch light. He states that seven persons had guns in their hand while accused Tauley had sword. He claims that on being challenged the accused fled while indiscriminately firing which lasted for five to six minutes. In the cross examination PW-1 admitted that all the witnesses are close relatives of the informant. This witness has been further cross examined and he has clearly stated that he does not remember as to how many times he has been to jail. The cross examination of PW-1 shows in detail that he had a chequered criminal history and is implicated in various cases of murders and dacoity. He has also been arrested on account of gangster activities. PW-1 is also an accused of rape etc. There are also cases under Section 60 of the Excise Act and Section 25 of the Arms Act. This witness was produced from jail where he was lodged in a case under Section 302 IPC at the time when his testimony was recorded. He has also been confronted with his previous statement under Section 161 Cr.P.C., wherein he had alleged that some of the intruders were fighting at the place of occurrence. He has further stated that he woke up after hearing eight to ten gun shots. He disclosed the height of the boundary to be of chest height. He has also admitted that while hiding himself behind the boundary he saw the incident in torch light. He also admitted that he had never been to the village of accused Sardan and Mardan nor these persons ever came to his village nor has he explained as to how he could recognize other accused, who were all from different village. He has further admitted that he knows the investigating officer. He also says that though he has seen the incident from a distance of five feet but he does not remember as to how many shots were actually fired. He also stated that the height of the thatched roof was low and that the accused had to bend and in that bend position they were firing on the deceased. Suggestion has been given to this witness that on account of enmity of the accused with the investigating officer and on his instigation that he is making a false deposition.

15. PW-3 has also deposed on similar lines as that of PW-1 since he was sleeping on the same cot next to him.

16. The only other witness of fact is PW-2, who is an injured witness. He has explained the place of occurrence and stated that his house is at about ten paces from that of Jaipal. He claims that he saw the accused in the torch light. This witness in the cross examination has stated that he woke up after hearing gun shots and came to his door and when he lit the torch the miscreants fired at him and he sustained gun shot injury. He immediately returned to the room. He has admitted that from the place where PW-3 was lying it was not possible to have seen the deceased. Even this witness has admitted that there are large number of criminal cases against him. He was also produced from jail where he was lodged on account of his criminal act. This witness has been cross examined on his previous statement wherein he had not disclosed about lighting of torch by PW-1. He also admitted that he had not shown the torch to the investigating officer. This witness has also been confronted with the suggestion that due to enmity with the investigating officer the accused persons have been falsely implicated and that the witness is making a false deposition.

17. We have carefully examined the evidence on record and from the testimony of DW-1 and DW-2 it is admitted that various complaints were lodged against the investigating officer by the accused persons. The investigating officer has been produced as PW-5 and he has been confronted with the complaints made against him before the District Magistrate and S.P. by the accused persons. He has admitted that a magisterial enquiry was also conducted against him on the basis of complaint made by Sardan. In the cross examination the investigating officer has denied having any information about pendency of cases relating to dacoity against the prosecution witnesses. He also feigned ignorance about the large number of pending cases which was going on against the deceased Jaipal. The testimony of PW-5 is not very dependable as in his capacity as the SHO he was expected to be aware of the criminal antecedents of prosecution witnesses but such details are avoided on the pretext that he is not aware of such facts. The witness has admitted that he had to face magisterial enquiry and an FIR.

18. In the facts of the present all prosecution witnesses are related and interested witnesses. The prosecution witnesses as well as the deceased have large number of criminal cases against them and their criminal antecedents is not in doubt. Although testimony of a witness having criminal antecedent is admissible yet certain care and caution will have to be devoted while examining their testimony, particularly when these witnesses are otherwise related witnesses and their deposition on the aspect of motive is not found convincing.

19. We have already observed that absolutely no motive could be established by the prosecution in this case for murdering the deceased. The accused persons are residents of different villages. It is difficult to comprehend as to how all the accused persons (eight in numbers) were recognized by the prosecution witnesses, in the dead of the night, particularly when it is admitted by the prosecution witnesses that they have neither visited their village nor the accused persons had visited their village at any previous time. The establishment of identity of the eight accused, therefore, is a matter which has not been successfully proved by the prosecution.

20. So far as the injured witness PW-2 is concerned, his injury has been proved by the doctor. As per him PW-2 sustained firearm injury. The statement of PW-2 is specific as per which he came to his door on hearing the gun shots and sustained firearm injury as the miscreants fired at him when he opened his torch. The version of torch, however, has not been disclosed by PW-2 in his statement under Section 161 Cr.P.C. It is otherwise quite natural for an injured person to immediately look for safety and his statement that he immediately returned inside the room is quite plausible. We find it difficult for PW-2 to have actually identified the miscreants in such a short time, during night, particularly when the source of light i.e., the torch is also doubtful. PW-2 has otherwise admitted that he did not know accused persons from before and it would be difficult to accept that in such short time he could recognize all of the eight accused.

21. So far as PW-1 and PW-2 are concerned, we find their version not to be reliable as they claim to have seen the incident from across the boundary. The height of the boundary was approximately five feet. After the boundary there exists a sahan and a court yard after which situates the Madhai. We find it difficult for anyone standing across the boundary of a height of five feet to identify eight persons in torch light, who were all from different village. We otherwise find testimony of PW-1 and PW-3 to be doubtful as according to their version the eight accused indiscriminately fired on the deceased whereas the postmortem shows the existence of a solitary gun shot injury. PW-1 stated that he woke up on hearing eight to ten fires. Though certain empty cartridges and pellets have been found but they are not of much significance, particularly, when the role of the investigating officer is also questionable, on account of the fact that various complaints were made by the accused persons against him wherein the investigating officer had to face magisterial inquiry. Three other injured have not been produced and their version are not available with the Court. The fact that prosecution witnesses have criminal antecedents as such motive exists for other inimical persons to have committed the offence, particularly, when the deceased too was not a man of clean antecedents. The possibility of Investigating officer falsely implicating the accused also is not far-fetched. The accused are otherwise aged persons, who are facing the proceedings for the last forty years.

22. On the basis of assessment and analysis of the prosecution evidence on record, we do not find it safe to accept the prosecution case, particularly, when the testimony is of interested witnesses, who have criminal antecedents and two out of three witnesses have been produced from the jail. The accused appellants otherwise are persons ranging from 75 years to 90 years of age. None of the prosecution witnesses have assigned any role of assault by a sharp edged weapon and specific role of firing on the deceased is not assigned to any specific accused. As the motive is not established, we are persuaded to accept the prosecution case that all the accused, with common intent, committed the murder of deceased Jaipal or fired on the injured. The testimony of prosecution witnesses, therefore, is not found trustworthy and reliable and, therefore, conviction based on their statement is not found proved. The accused appellants would, therefore, be entitled to benefit of doubt.

23. The trial court while convicting the accused-appellant has not examined the testimony of prosecution witnesses on the touchstone of a related and interested witness having a criminal background. Neither the aspect of motive is properly analyzed nor the possibility of false implication on account of Investigating Officer's possible interest in punishing the accused for making a complaint against him due to which the Investigating Officer had to face magisterial inquiry. The fact that the prosecution witnesses PW-1 and PW-3 not being in the straight line of sight due to boundary standing in between and PW-2 having sustained the gun-shot on lighting the torch examined in right perspective as the witness immediately rushed inside the home. The plea of false implication by Investigating Officer is disbelieved on the solitary ground that the Investigating Officer was not present when PW-1 arrived at the police station to lodge the report and that the Investigating Officer returned later. This, in our view, is not sufficient to dislodge the plea of false implication. The fact that all accused were from different villages, the issue of establishment of their identity has not been properly examined, particularly, when most of them were not known to them from before (except Sardan and Mardan). The finding of guilt arrived at by the court below is thus not sustainable and is reversed.

24. In view of our deliberations and discussions held above, we are of the considered opinion that the prosecution has not been able to prove the case which it had set out to establish during trial beyond doubt. The accused appellants have clearly succeeded in creating a doubt on the version put forth by the prosecution witnesses and, therefore, the prosecution has failed to establish its case beyond doubt.

25. This appeal consequently succeeds and is allowed. The judgment and order dated 06.10.1983, passed by the learned VIth Additional District & Sessions Judge, Shahjahanpur in Sessions Trial No. 171 of 1983, under Sections 147, 148, 149, 452, 307, 302 IPC, Police Station Katra, District Shahjahanpur is set aside.

26. The accused-appellants, who are reported to be in jail, shall be set to liberty, forthwith, unless they are wanted in any other case, subject to compliance of Section 437A Cr.P.C.

 
Order Date:- 12.05.2023
 
RA/Vipul
 

 

 
(Vinod Diwakar, J.)         (Ashwani Kumar Mishra, J.)