Matgulla @ Ajay vs State Of U.P.
2024 Latest Caselaw 15139 ALL

Allahabad High Court

Matgulla @ Ajay vs State Of U.P. on 2 May, 2024

Author: Ashwani Kumar Mishra

Bench: Ashwani Kumar Mishra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


AFR
 
Neutral Citation No. - 2024:AHC:79127-DB
 

 
Court No. - 42
 

 
Case :- CRIMINAL APPEAL No. - 3850 of 2019
 
Appellant :- Matgulla @ Ajay
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Kumar Ashutosh Srivastava,Mohit Behari Mathur
 
Counsel for Respondent :- G.A.
 
		Connected with
 
Case :- CRIMINAL APPEAL No. - 3872 of 2019
 
Appellant :- Sanjay
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Kumar Ashutosh Srivastava,Dinesh Kumar,Manvendra Singh,Mohit Behari Mathur,Paritosh Sukla
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ashwani Kumar Mishra,J.
 

Hon'ble Mohd. Azhar Husain Idrisi,J.

(Per: Hon'ble Ashwani Kumar Mishra, J.)

1. These appeals are directed against judgment and order of conviction and sentence dated 26.4.2019 and 29.4.2019, passed by Sessions Judge, Amroha, in Sessions Trial No. 172 of 2016 (State Vs. Matgulla @ Ajay and another), arising out of Case Crime No.60 of 2016; and Sessions Trial No.171 of 2016 (State Vs. Matgulla @ Ajay) arising out of Case Crime No.62 of 2016, Police Station Hasanpur, District Amroha, whereby the accused appellants Matgulla @ Ajay and Sanjay have been convicted and sentenced to life imprisonment alongwith fine of Rs.30,000/- each under Section 302/34 IPC and on failure to deposit fine to undergo additional imprisonment for one year; two years rigorous imprisonment under Section 504 IPC, and also accused appellant Matgulla @ Ajay has been convicted and sentenced to one year rigorous imprisonment alongwith fine of Rs.5,000/- under Section 4/25 of the Arms Act and on failure to deposit fine to undergo additional imprisonment for three months. All sentences are to run concurrently.

2. Written report of informant Lala (PW-1) forms the basis of prosecution case as per which his brother had lit fire near the graveyard and was sitting by it, to warm himself in cold weather, when the two accused arrived and started hurling abuses to the informant's brother. The incident is of 13.2.2016 at 6.30 PM. Ranjeet (PW-2), the informant's brother (deceased) and Dharmpal (not produced) objected to the abuses whereafter the accused persons inflicted knife blows on the deceased. On the basis of such written report the first information report came to be lodged on the date of incident under Sections 307, 504 IPC at 9.30 hours as Case Crime No.60 of 2016. The Investigating Officer collected bloodstained and plain earth from the place of occurrence. Recovery memo in that regard has been exhibited as Ex.Ka-10. The injured brother was rushed to the local primary health centre wherein the doctor incharge examined him and vide his report (Ex.Ka-2) indicated following injuries on him:-

"(i) I/w 3 x 1 cm on left side of chest 10 cm above umbilicus."

3. The injured brother died couple of hours later. Inquest was conducted around 9.00 pm on the date of incident (Ex.Ka-4). Postmortem was conducted on the next date i.e. 14.2.2016 at 1.00 pm. As per the postmortem report (Ex.Ka-3), following ante-mortem injuries were found on the deceased:-

"Stabbed wound size 3.5 cm x 1 cm x cavity deep, margins are inverted, present on left side of abdomen, 12 cm below left nipple and 12 cm above umbilicus and 3 cm lateral to midline."

4. The cause of death has been specified as shock due to ante-mortem injury. Clothes worn by the deceased were also taken in custody and all such recovered materials were sent to Forensic Research Laboratory, Agra.

5. Accused Matgulla was thereafter arrested on 15.2.2016 and on his pointing out the weapon of assault i.e. knife was recovered from the bushes nearby the place of occurrence. The recovery of knife has been exhibited as Ex.Ka-11. Another first information report under Section 4/25 of the Arms Act was then registered on 15.2.2016, at 20.10 hours, being Case Crime No.62 of 2016. The recovered knife was also sent to FSL, Agra for its scientific examination.

6. The report of FSL has been exhibited as Paper No.23-A. As per this report blood was found on all items including the knife. However, blood on the knife was found disintegrated, and therefore, it could not be matched. Investigation ultimately concluded with submission of chargesheet (Ex.Ka-14) against the accused appellants under Section 302, 307, 504 IPC. A separate chargesheet (Ex.Ka-20) was also submitted against the accused Matgulla under Section 4/25 of the Arms Act. Cognizance was taken on the chargesheets, whereafter the case was committed to the court of sessions where it got registered as Sessions Trial Nos.171 and 172 of 2016. The accused appellants denied the charges framed against them and demanded trial.

7. In addition to the documentary evidence adduced during the trial, the prosecution has relied upon the oral testimony of two witnesses of fact, namely Lala (PW-1) and (Ranjeet) PW-2. PW-1 is the informant. In his examination-in-chief he has stated that the incident occurred at 6.30 pm. The deceased had lit fire and was sitting near it to warm himself when the two accused came and started abusing his brother. Deceased, Ranjeet and Dharmpal objected to it, whereafter accused Sanjay caught hold the deceased and accused Matgulla stabbed him with a knife. PW-1 admits that he has not seen the incident himself. Rather, he was going to ease himself near the graveyard and when he arrived at the spot the accused had left. He only claims to have seen the two accused fleeing from the spot. Matgulla was carrying knife in his hand while running away. He claims that he, together with his injured brother came to police station and got the written report scribed. PW-1 has stated that his house is about 100 paces from the place of incident. He was in the habit of going to the same graveyard to ease himself. He has also stated that after causing the stab injury the accused left towards the north. He later specified during cross-examination that he saw the accused from a distance of about 20 paces, and there was no other villager at the place of occurrence. He has admitted that there existed no dispute between the deceased and the accused. He further claimed that when he came to the place of occurrence he was informed by the injured brother that accused Sanjay had caught hold of him while accused Matgulla stabbed him. He stated that this fact was informed to the Investigating Officer and the fact that this was not mentioned in his statement under Section 161 Cr.P.C. cannot be explained. He also stated that alongwith the deceased brother, Ranjeet and Dharmpal were also sitting by the side of fire but they made no attempt to save his brother.

8. However, in his further cross-examination, PW-1 has claimed that he saw the incident himself. Other villagers came later. He also claimed that accused persons threatened him with knife; he was pushed by them before fleeing.

9. The other prosecution witness of fact namely, Ranjeet (PW-2) has also supported the prosecution case. PW-2, however, offers somewhat distinct narration of the incident. As per him the accused persons hurled abuses on the deceased because deceased had earlier objected to the plucking of sugarcane from the field and had also beaten the accused. PW-2 has further stated that after the incident occurred, he raised an alarm alongwith Dharmpal and rushed towards the village. At some distance he saw PW-1 and informed the incident to him. In his cross-examination PW-2 has stated that the deceased was like an uncle to him and lived at a distance of 50 metres from his house.

10. PW-2, however, claimed that apart from himself and Dharmpal, two other persons namely, Rahul and Sovinder were also warming themselves by the fire lit by deceased. Rahul and Sovinder have not been produced. This part of the testimony of PW-2 does not find support either from PW-1 or from any other evidence on record. This witness, however, states that PW-1 was not even present at the place of occurrence. He has denied that the Investigating Officer was informed by him that he came to the village and informed the incident to PW-1. PW-2 has also stated that police arrived nearly after half an hour later and took the injured alongwith PW-1. According to PW-2 the informant's brother had fainted on being stabbed and he was not in a position to speak.

11. PW-3 is the doctor, who had examined the injured. He has stated that there was a solitary cut injury of the size 3x1 cm on left side of chest 10 cm above the umbilicus. This injury could have come with a sharp object.

12. PW-4 is doctor Farid Husain, who has conducted the postmortem of the deceased. He has stated that the solitary injury was caused by a sharp object and the corners were inverted.

13. PW-5 is the Investigating Officer, who has proved the police papers. He also arrested the accused and proved the recovery of knife. In his cross-examination the witness has admitted that the informant did not inform him that accused Sanjay had caught hold of the deceased. This witness has clearly stated that he found no traces of any fire lit at the place of occurrence. PW-6 is also a formal witness, who has proved the police papers.

14. The evidence led during trial has been confronted to the accused, who have denied the evidence adduced against them during trial. Matgulla has denied that any knife was recovered on his pointing out. Similar stand of denial was taken by both the accused's. It is on the basis of the above evidence that the Court of Sessions has convicted the accused appellants and sentenced them as per above.

15. Sri Rahul Saxena, appearing for the appellants submits that the appellants have been falsely implicated; there was no motive on their part to commit the offence; recovery of knife from accused Matgulla is not reliable since the recovery was from open bushes and is otherwise refuted by testimony of witness; there is no independent witness to the recovery of knife; there is no disclosure statement of the accused pursuant to which the recovery was made; the testimony of PW-1 and PW-2 are not reliable.

16. Sri Vikas Goswami, learned A.G.A., on the other hand, submits that the witnesses are reliable and minor contradictions in their testimony cannot be relied upon to discredit the prosecution case. The State counsel further argues that there was a definite motive to commit the offence by the accused and that the testimony of PW-1 and PW-2 have rightly been relied upon by the trial court. Submission is that Court of Sessions has evaluated the evidence on record in correct perspective and that the appeals lack merit.

17. We have heard Sri Rahul Saxena, learned counsel for the accused appellants as well as Sri Vikas Goswami, learned A.G.A. for the State and carefully perused the evidence on record. Original records of trial court have also been examined by us.

18. Prosecution case, in this case, emanates on the written report, wherein it is specifically alleged that the incident occurred at about 6.30 in the evening on 13.2.2016. In the written report it is alleged that when the deceased objected to hurling of abuses by the accused persons both the accused stabbed the deceased. In the FIR there is no specific role assigned to any of the two accused. However, in the injury report as well as postmortem it is apparent that there was a solitary stab wound caused to the deceased. The prosecution case essentially relies upon the recovery of knife allegedly made on the pointing out of the accused appellant Matgulla as well as testimony of two prosecution witnesses of fact namely, PW-1 and PW-2.

19. PW-1 in his examination-in-chief has stated that the deceased objected to the hurling of abuses by the accused on which accused Sanjay had caught hold the deceased and accused Matgulla stabbed him. This part of the testimony of PW-1 is stated in court and does not find reference in the FIR. PW-1 has admitted that he has not seen the incident, wherein his brother was stabbed. In his examination-in-chief he has only stated that he saw the two accused fleeing from the place of occurrence. In the cross-examination he is specific that he has not seen the incident himself. PW-1 has further stated that he saw the two accused fleeing from a distance of twenty paces and that no other villager had come. From the testimony of PW-1 we find that he was neither present at the place of occurrence when the deceased was stabbed nor he has seen the incident with his own eyes. This witness cannot be stated to be an eye-witness. The most that can be attributed to PW-1 is that he saw the accused running from the place of occurrence. The place of occurrence in the present case is the graveyard which is a deserted place. It has come in evidence that there were bushes around and people generally used the location to ease themselves. It is also admitted that there was no source of light. The incident has occurred in the month of February and the witnesses have themselves suggested that it was dark. Though the witnesses have claimed that it was not fully dark but from the evidence available on record we find that the source of light was lacking at the place of occurrence. We are doubtful of the prosecution case that even in the absence of source of light PW-1 could have identified accused persons from a distance of twenty paces. It appears more probable to us that PW-1 arrived later at the place of occurrence and that by then the accused had already left.

20. PW-2 is the other witness of fact, who has supported the prosecution case. As against the version of PW-1 that deceased was sitting by the fire alongwith Dharmpal and Ranjeet, PW-2 has claimed that two more persons namely, Rahul and Sovindar were also present at the place of occurrence. He has categorically stated that PW-1 was not present at the place of occurrence. PW-2 has stated that though there were four persons but none of them attempted to save the deceased. PW-2 has been confronted with his previous statement made to the Investigating Officer, wherein he had alleged that he raised alarm and informed the villagers about the incident and when he left the place the injured was still lying at the spot. PW-2 moreover has stated that police arrived soon after the incident and had taken the injured to the doctor alongwith PW-1. The Investigating Officer, however, had denied that he had come to the place of occurrence or that he had taken the injured to the hospital. Although the Investigating Officer has stated that some local policemen may have come to take the injured but he is not definite in that regard. The version of PW-2 that there were four persons sitting alongwith the deceased is clearly at variance with the prosecution version. There is also material improvement in the statement of PW-2 from what he has initially disclosed to the Investigating Officer. On the basis of evaluation of evidence on record we find do not find PW-2 to be a reliable witness. His presence appears to be doubtful, particularly as he neither tried to save the injured nor took him to the hospital and was also not the person, who lodged the report.

21. The other aspect which requires examination in this case is the recovery of knife on the pointing out of accused Matgulla. The recovery memo of knife is Ex.Ka.11 which shows that there is no independent witness to the recovery of knife. The knife otherwise has been recovered from the bushes near the place of occurrence close to graveyard. The manner in which the knife is said to have been recovered on the pointing out of the accused appellant Matgulla raises more questions than it answers.

22. First and foremost, we find that though it is alleged that accused Matgulla was arrested on 15.2.2016 and he admitted his guilt before the police personnel and also offered to get the knife recovered but admittedly no disclosure statement has been prepared of accused Matgulla nor any panchnama has been contemporaneously recorded by the Investigating Officer. The absence of panchnama also shows that there were no independent witnesses who had witness the disclosure allegedly made by the accused. In the absence of disclosure statement of accused or its contemporaneous recording in the presence of independent witnesses the alleged recovery of knife cannot be taken in evidence in terms of Section 27 of Indian Evidence Act, 1872.

23. The site plan otherwise shows that the recovery of knife is from a place quite close to the place of occurrence. It is difficult to believe that the knife lying in the close vicinity of the injured was not noticed for two days. There is absolutely no reason as to why no independent person was associated either at the time of making of disclosure statement of the accused or when the recovery itself was allegedly made. Mere statement that no independent person was willing to testify is not backed by any details furnished by the Investigating Officer of the persons whom he tried to associate in this process. The knife although is alleged to have blood stains but as per FSL report it is not proved that the blood found on the knife is human blood. The recovery of knife therefore cannot be relied upon as a circumstance against the accused appellants.

24. In the facts of the case apart from testimony of two witnesses there is no other evidence brought on record to implicate the accused appellants. So far as PW-1 is concerned we have already observed that his testimony cannot be treated to be that of an eye-witness, inasmuch as he was not present at the place of occurrence at the time of incident and came later by when the incident had occurred. We have also observed that there was no source of light and as it was somewhat dark the possibility of accused's being recognized from a distance is remote. The place of occurrence is a graveyard having bushes all around and it was being used by the villagers for the purposes of defecation etc. So far as PW-2 is concerned we find that his testimony cannot be relied upon as there are material contradictions in his version. There are otherwise improvements made in his testimony from what was disclosed earlier at the stage of investigation. We, therefore, do not found the testimony of PW-2 to be reliable or safe in order to convict the accused appellants. These aspects appear to have been overlooked by the trial court and the statement of witnesses have been relied upon routinely without due care and caution. The conclusions drawn by the trial court on the aspect of appellants' guilt is thus found to be contrary to the weight of evidence on record.

25. Record otherwise shows that appellant Matgulla @ Ajay is in jail for last more than eight years, whereas accused Sanjay has undergone incarceration of almost six years. Upon evaluation of prosecution evidence we find that the accused appellants are clearly entitled to benefit of doubt, inasmuch as the prosecution has not succeeded in establishing its case against the accused appellants beyond reasonable doubt. The findings of the trial court that the guilt of accused appellants are established beyond reasonable doubt are thus reversed.

26. Consequently, the appeals succeed and are allowed. The judgment and orders of conviction and sentence of the accused appellants Matgulla @ Ajay and Sanjay are set aside. The appellants shall be set to liberty unless they are required in any other case, subject to compliance of Section 437A Cr.P.C.

Order Date :- 2.5.2024

Anil/RA

(Mohd. Azhar Husain Idrisi,J.) (Ashwani Kumar Mishra,J.)