Jagdish And Others vs State
2024 Latest Caselaw 17177 ALL

Allahabad High Court

Jagdish And Others vs State on 15 May, 2024

Author: Siddhartha Varma

Bench: Siddhartha Varma

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2024:AHC:87740-DB
 
AFR
 
Reserved
 
In Chamber
 
Case :- CRIMINAL APPEAL No. - 802 of 1982
 
Appellant :- Jagdish And Others
 
Respondent :- State
 
Counsel for Appellant :- Siddharth Shukla,Arvind Kumar Maurya,Om Prakash Verma,Vivek Prasad Mathur
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Siddhartha Varma, J.
 

Hon'ble Vinod Diwakar, J.

(Per : Vinod Diwakar, J.)

1. Upon an incident, having taken place in the intervening night of 19th and 20th July 1980, a First Information Report was lodged on 20.7.1980. Ram Jiyawan Tripathi scribed the tehrir on the dictation of the first informant, Radhika Devi. In the F.I.R. it was stated that on the previous night, while the first informant and her husband Buchnoo Tiwari were sleeping in the Veranda of their house in village Dulahi, Police Station Khesraha, District Basti, after having their dinner etc., at around 12 mid-night because of the call of nature, the younger daughter, who was sleeping with the first informant, woke up. The complainant was trying to ease the child, and at that moment, four persons reached the place of the incident with country-made pistols and lathies. When the first informant asked them not to come near her and her husband then, the assailant, Jagdish, son of Ram Dulare, who was having country-made pistol in this hand, fired on the husband of the first informant. Thereafter, the first informant, caught hold of Jagdish. Thereupon, Jagdish exhorted his friends to kill the husband of the first informant. Upon this exhortation, Vishdhar alias Shridhar, son of Shiv Moorat, fired a second shot at the husband of the first informant and Ram Achal, son of Mitthoo, who also accompanied them, pushed the first informant aside. As a result, the first informant fell. Also, Jagdish slapped her. When all this was happening, the first informant raised a hue and cry and, therefore, Ram Jiyawan Tiwari, son of Munnu Tripathi, Bhagwan Dutt son of Mannar and a lot of persons of the village with lanterns and torch came to the house of the first informant. The crowd that had collected at the house of the first informant tried to chase the accused persons but they ran away. However, because of the firearm injuries, the husband of the first informant died. She mentioned Jagdish and Ram Achal's motives in the first information report. Because of certain litigation with regard to her land, the husband, i.e., the deceased, who was doing pairvy in the cases, was killed. She stated in the first information report that the dead-body of her husband was lying in the house itself and while she had gone to lodge the first information report, the injured daughter Poonam was with her devar.

2. The lodging of the first information report had set into motion the investigating agencies and they recovered the torches of the witnesses Bhagwan Dutt Tiwari and Narad Tiwari and took them into custody. Also, the mud where the blood was found, was taken into custody. The lantern and cot were also taken into custody. When the search was made in the house of the accused, no firearm etc. was recovered. The injury report and post mortem report were also prepared. Upon the charge-sheet having been submitted, the Court of Additional Sessions Judge, Basti, on 03.12.1980 framed charges against Jagdish, Ram Achal and Vishdhar @ Sridhar under Sections 323, 302, 307 read with Section 34 of I.P.C. The trial commenced when the accused persons denied the charges and prayed for trial.

3. From the side of the prosecution as many as ten witnesses were produced and examined.

4. PW-1-Radhika Devi, the first informant, proved the first information report and gave her side of the story. She has stated in her testimony that Buchnoo Tiwari (deceased) was her husband. Vansh Gopal was her father, and she was the only daughter of her father. When she was one and half years of age then her mother died. She further stated that her father, Vansh Gopal, had never remarried, and when she grew up, her father married her. At the time of marriage, he had given her ten bighas of agricultural land and when Vansh Gopal died, all the agricultural land and the properties were inherited by her. She stated that Vishdhar was Jagdish's brother-in-law (sala), and Ram Achal was Jagdish's agriculture labourer (someone who helped in agriculture work). She stated that someone had impersonated herself and sold her properties to Jagdish and his brother Keshav. Upon coming to know about this execution of the sale-deed, Buchnoo Tiwari and Jagdish became inimical. At the time of the incident, civil cases were going on with regard to the land in question. She stated that she had four children; two sons and two daughters. At the time of the incident, the youngest daughter was one and half months to two month old, the daughter Poonam, who was older than the youngest daughter, was 3 to 4 years old and the sons were older than two daughters and were aged about 10 to 7 years. She had stated that her house in the village was a hut with two rooms and one Veranda. The house faced towards the East. Also on the East was the sahan of the house. The animals were tied on the Southern and Eastern side of the house. On the date of the incident, she states in her testimony, Buchnoo Tiwari and she herself were lying down on two separate cots. The youngest daughter was sleeping with her and one who was elder to her was sleeping with her husband Buchnoo Tiwari and the two sons were sleeping inside the house. She came for sleeping in the Veranda because they had to look after the animals. She had stated that, like always, the lantern lit in the Veranda and the cots were in the North-South direction. After they had their food and slept, the youngest daughter had a call of nature, and she had risen to ease her. Then, the accused persons, Jagdish, Vishdhar and Ram Achal, reached the house. Along with them was one more person she did not recognize. Jagdish and Vishdhar had country-made pistols, and Ram Achal had a lathi. The fourth persons she could not recognize was having a lathi with him. As soon as Jagdish entered into the Veranda of the house, he fired on the husband of the first informant. The first informant immediately left the child whom she was carrying and caught hold of Jagdish. She recognized Jagdish who was present in the Court.

5. Upon Jagdish having been incapacitated as the first informant held him, he exhorted Vishdhar to kill her husband, and thereupon Vishdhar fired upon the husband of the first informant. When Vishdhar fired, a few of the pellets also injured the daughter of the first informant, who was sleeping with the husband. Because of the firing, the husband of the first informant died. After that, Ram Achal pushed aside the first informant, who fell down on her back and Jagdish also slapped her. As a result, she had certain scratches on her back and was injured. After the incident, the four accused ran away, realizing that the villagers might reach the place of incident. However, Bhagwan Dutt, who had reached the house by the time the incident was over, had tried to catch hold of the accused persons. When the second shot had been fired, Bhagwan Dutt, Ram Jiyawan and Narad had reached the spot with lathis, etc., and they had seen the whole incident. Ram Jiyawan, in fact, tied a piece of cloth on the injury that had been caused to the husband of the first informant. On the next day, i.e. on the day after the incident had occurred, the first information report was lodged by the first informant. She had dictated the first information report to Ram Jiyawan Tripathi, a villager teacher. After he had written it down, he had also read it out to the first informant, and after she was satisfied with the contents, she had put her thumb impression on the FIR. PW-1 proved the first information report and said that it was the document, which was Exhibit-Ka-1. After Ram Jiyawan had written the report, he was taken by Balram to the Police Station. Along with the first information report, he had also taken the first informant and her daughter -Poonam, who was injured, to the Police Station. When the Inspector had come to the house of the first informant, he had found the dead body of her husband, the lantern and the cot, and he had prepared a recovery memo with regard to the lantern and the cot. On the next day, the injury report was prepared.

6. In her cross-examination, the first informant stood firm to what she had stated in her examination-in-chief. In the examination-in-chief, she had stated that Chhagur, Mannar and Munnu are of her village and were all related. Narad and Balram are the sons of Chhagur. She had stated that Bhagwan Dutt (PW-2), who was also a prosecution witness and an eye-witness, is the son of Mannar. She had stated that Bhagwan Dutt and Ram Jiyawan are related to each other. She had also stated that they are not her relatives and that she was the only child of her parents. She has categorically stated that they are the relatives of her husband. Upon being asked whether her husband Buchnoo Tiwari, Vanshraj, Munnu Tiwari, Mannar Tiwari, Kalika Tiwari were accused in some case of theft, etc., she said that she did not know about that fact. She, in fact, denied of having known any criminal case which was going on against her husband and his father, Vansh Raj. She also denied any criminal case vis-a-vis Ram Achal involving her husband. Upon a question being asked that her actual father was Ram Dev, she denied the fact and insisted that Vansh Gopal was her father. She stated on oath that her husband -Buchnoo Tiwari was staying in her father's house. The actual house of Buchnoo Tiwari was in Village-Gothwa, which had, because of it being dilapidated, fallen, and, therefore, he was also staying in her house. In her testimony, she said that the incident had happened in the month of Ashadh (which is equivalent to July-August). She had stated that on the date of incident, it was drizzling and that the clouds were there in the sky. The night was dark, and it was raining, and because of the fact that her elder daughter was suffering from chicken pox, the first informant had kept the lantern on, and also, for the four previous nights, the lantern was lit. She has stated that when Bhagwan Dutt reached the house of the first informant, the accused person had run away and that it was raining heavily. Upon a question probably being asked, as to where the excreta of the young child was, she said that because of there being heavy rains, the excreta had got washed away. When the accused persons had run away, she had held her husband and wept. She was not aware as to whether the blood had got stuck to her clothes as well. She has stated that the Veranda had no plinth and that Jagdish had fired while he was getting down. Nobody had hit the first appellant and the deceased with lathis. In the Veranda no pellet, etc., was found, and the pellets that had entered the chest of her husband were lying there. Upon being asked as to whether the her husband's father, Vansh Raj, was under the observation of the Police, she replied that she did not know about that. She only stated that her case about her property was decreed in the Munsif's Court, and the appeal was pending. Before the date when the appeal was to be argued, the incident had occurred, and the husband of the first informant was killed. She has stated that the appeal was still pending. She denied the fact that the husband of the first informant had many enemies and that any of those enemies might have come and killed her husband.

7. The PW-2 Bhagwan Dutt appeared in the witness box and gave his statement and had categorically stated that in the night of 19th and 20th July, 1980 he was sleeping in his house and had woken up to answered the call of nature. At mid-night, he went out with his torch to check out if his cattle were properly tethered and upon finding that one particular animal was not found at its place, he called out his brother Kalika Tiwari and informed him about the missing animal and also went out to search for the animal. When he reached the house of Deena Nath Pandey, then, he heard the sound of the gunshot being fired from the side of the house of Buchnoo Tiwari and also heard the shouting of the wife of Buchnoo Tiwari i.e. Radhika (first informant). The witness, after that, stated that he ran towards the house of Buchnoo Tiwari and he also found that a lantern was lit in the Vernadah of that house. In the light of the torch and the lantern, he saw Radhika was holding Jagdish and was shouting at the top of her voice that Jagdish was holding a country made pistol. He had also heard that Jagdish had exhorted Vishdhar to kill Buchnoo and thereupon, Vishdhar had fired upon the Buchnoo Tiwari. He had also seen the incident where Ram Achal had pushed Radhika, and thereafter, Jagdish had slapped Radhika. He also stated that he did not recognize the fourth person. He has stated that he, his brother and one Narad had tried to catch hold the accused persons, but they could not do so. Upon coming back to the house of Buchnoo Tiwari, he found that Buchnoo Tiwari was dead and that he was covered with blood. He also found that the daughter of Radhika, who was sleeping with Buchnoo Tiwari, had also got injured. Radhika, while weeping, narrated the whole incident, and when the Police came to their house, they had told the incident to the Police. He had also stated that he had given his torch to the Police, which was taken in custody, and a recovery memo was prepared. He has also mentioned about the case which was going on between Radhika and the accused persons. In his cross-examination, he had stood firm and had answered the questions as were put to him. He had stated that his house was a little away from the house of the complainant but because of his cattle had got freed from where he had tethered them, he had chased the cattle and, therefore, had reached near the place of the incident. He also stated that when he was chasing his cattle, it was not raining, and it was a dark night. The time gap between the two fires was one to one and one half minutes. He had stated that when the fourth man, whom he did not recognize, scolded him as to why he had stopped around 16-17 steps away from the place of incident. He had again categorically stated that on the date of incident, it was intermittently raining, but it was not raining heavily.

8. PW-3 Ram Jiyawan Tripathi was also an eye-witness and had virtually repeated what the PW-2 had stated. He, however, had stated that his house was around 30 steps away from the house of PW-2 and that the house of Bhagwan Dutt from the house of the place of incident was at 200-250 steps away.

9. PW-4 is the Police Constable-Mannu Yadav and he was the person who had taken the daughter of complainant for medical examination.

10. PW-5-Raj Narayan Gupta, the X-ray Technician had proved the x-ray report etc.

11. PW-6-Dr. B.P. Shukla had conducted the post-mortem of the deceased and had proved the postmortem.

12. PW-7-Dr. S.C. Tripathi, the Radiologist, who had done x-ray of the elder daughter of the deceased.

13. PW-8-Dr. U.K. Prasad had examined the injuries of Poonam and Radhika.

14. PW-9-Ashok Kumar Rai was the Investigating Officer. He had stated in his cross-examination that he was not aware whether it had rained in the night of the incident, but he stated that after he had reached, it did rain. He had also proved the recovery memo, etc.

15. PW-10-Shri Bakey Yadav Constable stated that he was posted as a constable at Police Station Khesaraha in July, 1980 and had taken the dead-body for postmortem.

16. After that, the accused's statements under Section 313 of Cr.P.C. were recorded.

17. Upon the completion of trial, the Additional Sessions Judge-I, Basti convicted the appellants Jagdish, Vishdhar @ Sreedhar, and Ram Achal and found them guilty under Sections 302 read with Section 34, 307 read with Section 34 and 323 read with section 34 on 23.3.1982 aggrieved by same the instant criminal appeal was filed.

18. During the pendency of the criminal appeal, the appellant, Jagdish died and thus, appeal abated qua him. Shri Ganesh Shankar Srivastava, learned Advocate argued for Ram Achal, and the appellant, Vishdhar @ Sreedhar, is represented by Shri Vivek Prasad Mathur, Advocate and they, argued thus :

(i) There is no independent eye-witness to prove the allegations. PW-1 is the wife, and PW-2 and PW-3 are relatives of the deceased, therefore their testimony can't be relied upon.

(ii) It has further been stated that there are contradictions in the statements of PW-1 and PW-2. PW-1 had given a reason for getting up at mid-night and it was that she had got up to facilitate the easing of her younger child, who was to defecate. He further submits that the actual excreta was never found on the spot nor was it mentioned in the site plan, which was prepared immediately after the incident, by the Investigating Officer. To explain that the excreta had got washed away, the PW-1 had stated that it was raining heavily. While opposite to this statement, learned counsel for the appellants stated that PW-2, PW-3 and the Investigating Officer all had stated that it was not raining heavily and that it was only raining intermittently and that too after large intervals and, therefore, the excreta could not have got washed away.

(iii) Learned counsel submits that the first informant had given a reason for getting up in the night but the fact remained that she was not there and had given a wrong reason. When the excreta was not found, she stated it had been washed away. But this fact was not corroborated by the other witness, who had stated that it was only intermittently raining.

(iv) Learned counsel for the appellants has further argued that the PW-2 stated that he was carrying a torch when he approached the deceased's house. He submits that when the lantern was lit, then the torch ought not to have been lit. By lighting the torch, the witness would have exposed themselves to the accused persons.

(v) Learned counsel for the appellants further stated that the first informant's motive was also not very convincing. Motive can always be a double edged weapon. The first informant was aware that a civil case was pending between herself and the accused person and, therefore, she could have easily implicated the accused persons. Learned counsel for the appellants further stated that as per the statement of PW-2, he was directed/ordered by the fourth person, who was present and whose name none of them could tell, to stay away and, therefore, he had stopped around 16-17 steps away from the place of incident and, therefore, all the narrations which he was giving in his testimony was a cooked-up narration as it was all taken from the first information report and statements of PW-1. Nothing was original of his and, therefore, it can easily be said that PW-2, in fact, never reached the spot and had only to help the PW-1, become a witness in the case and stated all wrong facts.

(vi) Learned counsel for the appellants subsequently stated that the pellets which were found could not be connected with any firearm. He, in fact, submits that no firearm was ever recovered. Learned counsel for the appellants states that the appellant no.3 Jagdish was, in fact, not at the spot and lived far away from the place of incident.

(vii) Learned counsel for the appellants states that the first informant was close to the dead-body of the deceased and had held him tightly, but no bloodstain came on the clothes of the first informant, meaning thereby that all the story which she had narrated was a concocted one. Learned counsel for the appellants thereafter stated that as per the ages given under Section 313 of Cr.P.C., the appellants no.2 and 3 namely Vishdhar and Ram Achal, are alive and had crossed 60 years of age, and they were now very elderly persons and that even if they were convicted, their sentences be reduced. Learned counsel for the appellants further submits that the incident was of the year 1980, and the appellants who were alive had already undergone the trauma of being an accused for a fairly long period, i.e. almost 44 years.

(viii) Learned counsel for the appellants further states that Balram Tiwari, who could have been a relevant witness and who had taken the tehrir to the Police Station along with the child, was not brought in the witness box as a witness. He submits that even Narad Tiwari, who was present at the spot and was an eye-witness, was not produced as a witness and, therefore, submits there were major lacuna in the case of the prosecution.

(ix) Learned counsel for the appellant has stated that there was every possibility that Radhika Devi had done away with the deceased and was implicating the accused. He submits that a fake Radhika Devi had replaced the real Radhika Devi, and she had stated in her examination-in-chief that she, along with the deceased, was staying in her Maika. learned counsel states that this fact was wrong as, in fact, all the witnesses, namely PW-2 and PW-3, were related to the deceased. The impersonated Radhika now wanted to make use of the decrees which were in favour of the real Radhika, by killing the deceased.

19. Smt. Archana Singh, learned A.G.A., however, has opposed the appeal and has submitted that PW-1, who was the wife of the deceased, was an eye-witness whose testimony could not be disbelieved. She had lost her husband and well recognized the accused persons. The fact could not be disbelieved where she stated in the first information report and her statement before the Court that she recognized the accused persons. Learned A.G.A. further submitted that even if there were small discrepancies in the evidence of the other prosecution witnesses, then that could not jeopardize the prosecution's case. Learned A.G.A. states that under no circumstances, the place of incident, the medical evidence, the source of light, the time of the incident, etc., be questioned.

20. Learned counsel for the appellants had tried to convince the Court that the PW-1, i.e. the first informant, was not an eye witness but had concocted the entire story. Picking up threads from the statement of the PW-1, they have argued that PW-1 had stated that the deceased was staying with her parents in village, but she has produced the PW-2 & PW-3, who were related to the deceased (husband). We find that none of the witnesses, who had appeared in the witness box, were relating to PW-1, the first informant.

21. Further, we find that PW-1 had given a fake story that gave a reason for her to wake-up in the mid-night. She stated that she got up because she had to facilitate her two months' old child to defecate. However, when the excreta was not present on the spot and when the Investigating Officer did not mention about the presence of any excreta in the site plan, she came up with a story that the excreta had flown away because of the heavy rain. About the heavy rain that PW-1 mentioned, we find that there are actual contradictions in the statements of the PW-2 and PW-3. They do not, in fact, mention a heavy rain, the Investigating Officer, had only mentioned intermittent rainfall.

22. The testimony of PW-2 and PW-3 suggests that the presence of accused-appellants are doubtful at the place of incident. The PW-2 and PW-3 stated that they had been prevented by fourth accused to reach at the place of incident does not inspire confidence and thus, are disbelieved.

23. We also find that the PW-2 and PW-3 were the relatives of the deceased and, therefore, when the first informant Radhika stated that she and her husband (deceased) were staying in her Myika, that statement also is not very believable. Therefore, doubt has definitely been created in our minds, and no person can be convicted on the basis of doubt.

24. Under such circumstances, for all the reasons stated above, the appeal, therefore, stands allowed. The judgment and order 23.3.1982 is set aside. The appellants before us, are acquitted of the charges levelled against them in the instant case. The appellant No.1 has already been died. The appellant nos. 2 and 3, Ram Achal and Vishdhar @ Sridhar were granted bail on 29.03.1982, therefore, their bail bonds as well as the sureties are discharged.

Order Date :- 15.05.2024

GS

(Siddhartha Varma, J.)

(Vinod Diwakar, J.)