Balkar Singh and Others vs State

O.P. Mehrotra, J.—These two appeals arise out of ST No. 589 of 1976 decided by Sessions Judge, Shahjahanpur by his order dated 21.9.1977 convicting all the Appellants Under Sections 302/149 and 323/149 IPC and sentencing each of them to imprisonment for life and R.I. for six months respectively for the two offences. Appellant Karnail Singh, who is said to have been armed with a Lathi, was further convicted u/s 147 IPC and sentenced to R.I. for one year, while the remaining five Appellants, who were armed with deadly weapons, were convicted u/s 148 IPC and each of them was sentenced to R.I. for 11/2 years. All the sentences were made to run concurrently.

Criminal Appeal No. 2151 of 1977 has been filed by Balkar Singh, Sunder Singh and Smt. Swarn Kaur while Criminal Appeal No. 2152 of 1977 has been filed by Gurbas Singh, Ratan Singh and Karnail Singh. As the two appeals related to the same incident and arise out of a common judgment, they were heard and are being disposed of together. It may also be mentioned that Appellant Karnail Singh died during the pendency of this appeal and as such the appeal filed by him has abated.

All the Appellants are closely related. Appellant Gurbax Singh, Balkar Singh and Ratan Singh are own brothers being sons of Karan Singh. Appellant Sunder Singh is their cousin and lives with Ratan Singh. Appellants Smt-Swaran Kaur is the sister of accused Gurbax Singh, Balkar Singh and Ratan Singh. Accused Karnail Singh, who died during the pendency of this appeal, was husband of Smt. Swaran Kaur. All of them are residents of village Umaria Kalyanpur, police station Powayan, District Shahjahanpur and have their Jhalas (huts) in their fields situated about a furlong in the south of Jagannath Pandey''s chak.

Deceased Jagir Singh was the husband of Smt. Gyan Kaur PW 1, who was injured in this occurrence and who had lodged the first information report of this occurrence. Jagir Singh along with his wife and 8 children earlier lived in village Behta but lateron they shifted to Deoria where Jagir Singh had built a hut. The eldest of the children is daughter Jaswant Kaur PW 2, who was aged about 18 years at the time of this occurrence and the next is a son Didar Singh aged about 16 years.

According to the prosecution case Jagir Singh used to cultivate some of the fields in Sunder Lai''s chak on Batai lying in village Behta at a distance of about 1/2 mile towards south-east of the Abadi of Behta. Adjoining to the chak of Sundar Lai, there was chak of Jagannath Pandey. About a furlong to the south of Jagannath Pandey''s Chak, there were fields and huts of the accused persons.

This occurrence is said to have taken place on 27.9.1976 at about 11 a. m. It is alleged that two days prior to this occurrence viz on 25.9.1976 at about 9 p. m. accused Gurbax Singh and Balkar Singh, both drunk with liquor, went to Jagir Singh''s hut in village Deoria. When Jagir Sing objected to their visit at that hour and in that state, accused Gurbax Singh and Balkar Singh left extending threat that in two days they would render him so that he would be in no position to object any more.

According to the prosecution case on the morning of 27.9.1976, deceased Jagir Singh along with his wife Smt. Gyan Kaur, daughter Jaswant Kaur and son Didar Singh went to weed out grass from his paddy field, which he had raised in Sunder Lai''s chak on Batai. At about 11 a. m. Jagir Singh started motor of electric pump installed in Sunder Lai''s chak and ten minutes after that he went to the field in the east to which he had directed water. From that field he proceeded towards home in village Deoria. Just then Gurbax Singh and Sunder Singh armed with Kantas, Balkar Singh armed with a Suja, Ratan Singh and Smt. Swarn Kaur armed with swords and Karnail Singh armed with a lathi, suddenly came from the side of their huts in village Umaria and rushed at Jagir Singh saying that he should not be allowed to escape. Jagir Singh started running but the accused persons chased him and when he reached in the adjoining chak of Jagannath Pandey, they started assaulting him as a result of which he fell down. His wife Sm. Gyan Kaur raised an alarm and ran to the rescue of her husband, whereupon she was also assaulted with lathi. Thereafter the accused persons caught hold of the hands and feet of Jagir Singh and carried him towards their huts, which were about a furlong to the south of Jagannath Pandey''s chak. Besides Smt. Gyan Kaur PW 1, her daughter Jaswant Kaur PW 2 and her son Didar Singh, this occurrence is said to have been witnessed by Ramsanehi PW 4, Jawahar Yadav and another Didar Singh, who were coming from the side of Behta. They followed the accused persons who were carrying Jagir Singh for a short distance but the accused threatened them, whereupon they did not proceed further.

Thereafter, Smt. Gyan Kaur took her children home in village Deoria and then started for police station Powayan, which was at a distance of 9 miles from the spot. On the way at Gangsara she met her brothers - Milkit Singh and Hariieet Singh, who accompanied her to Police Station Powayan where she lodged the first information report Ex. ka. 1 at 14.10 hours. A case Under Sections 147, 148, 149, 364, 324, 323 IPC was registered and investigation was taken up by S.I. Jagvir Singh. He interrogated Smt. Gyan Kaur at the Police Station and sent her for medical examination to the Primary Health Centre, Powayan, where she was medically examined by Dr. S.K. Jaiswal PW 3 at 3.30 p. m. She wasfound to have received the following injuries:

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All the injuries were simple and were caused by blunt object and were about half day old (vide Ex. ka 2.)

After interrogating Smt. Gyan Kaur and sending her for medical examination, the Investigating Officer reached the huts of the accused at about 3 p. m. and found the dead body of Jagir Singh lying near the huts of accused Gurbax Singh and Balkar Singh covered with gunny bag and Lungi. A blood stained sword and Kanta, the Lathi whereof had been broken, were found lying nearby. S.I. Bhagwat Singh held inquest and prepared panchayatnama. The Investigating Officer then went to the spot in Jagannath Pandey''s chak and found the land trampled and recovered blood lying on the earth. Accused Smt. Swarn Kaur was found outside her hut and was taken into custody.

After recovery of the dead body of Jagir Singh, the case was converted into one u/s 302 IPC. Accused Balkar Singh, Sunder Singh and Karnail Singh were arrested near Nathapur on 5.10.76 while Gurbax Singh and Ratan Singh were arrested on 15.10.1976 at the bus stand of Gangsara.

Autopsy on the dead body of Jagir Singh was conducted by Dr. Siddhi Gopal PW 7 on the next day i. e. 28.9.76 at 4 p. m. The deceased was aged about 40 years and had died about a day back. Rigour Mortis had passed off from all the limbs. There was no decomposition. He found the following anie mortem external injuries:

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The internal examination revealed that 4th, 5th, 6th, 7th, 8th and 9th right ribs and 4th to 7th left ribs had broken. Both the lungs were badly lacerated. There was 500 Cc. of free blood in the right pleural cavity and 200 Cc. blood in the left pleural cavity. The heart was empty. The stomach was also empty. The small intestines had some matter and the large intestines contained faecal matter. In his opinion, the death was caused by shock and haemorrhage due to injuries (vide post mortem report Ex. ka 6).

In support of its case, the prosecution examined three eye witnesses, viz., Gyan Kaur (PW 1), Km. Jaswant Kaur (PW 2) and Ramsanehi (PW 4). PW 3 Dr. S.K. Jaiswal examined the injuries of Smt. Gyan Kaur on 27.9.76 at 3.30 p. m. while Dr. Siddhi Gopal (PW 7) conducted the post mortem of Jagir Singh. PW 6 and 9 were formal police witnesses while PW 8 S.I. Jagvir Singh was the Investigating Officer of this case.

The accused examined two witnesses in defence. DW 1 Ram Prakash was examined to prove alibi of accused Karnail Singh inasmuch as it was said that at the time of occurrence, he was present in a Panchayat held in village Hiromatpur from 9 a. m. on that day and lasted till 3 p. m. This witness was also a Panch in that Panchayat and a Rajinama Ex. kha. 1 is said to have been executed at that time. PW 2 Sunder Lai of village Behta denied that he gave any of his field to deceased Jagir Singh for cultivating on Batai, and further stated that Jagir Singh used to sell illicit liquor. The defence suggestion was that the occurrence did not take place at the time alleged by the prosecution and that the same was not witnessed by any of the eye witnesses examined on behalf of the prosecution, nor Smt. Gyan Kaur received any injuiry and that Jagir Singh might have been murdered by some unknown persons in the early hours of the morning.

The learned Sessions Judge believed the prosecution witnesses and rejecting the defence version as unreliable, convicted and sentenced the applicants as mentioned above, hence this appeal.

Sri P.N. Misra, learned Counsel for the Appellants vehemently contended that there were strong circumstances which indicated that the occurrence did not take place at the time and at the spot alleged by the presecution and that Smt. Gyan Kaur (PW 1) was not present at the spot nor she received any injuries in this occurence and that the first information report of this case had been prepared subsequently after Investigating Officer have reached the spot and had recovered the dead body and had held the inquest. It was also contended that the injuries found on the person of Smt. Gyan Kaur were manufactured or self-suffered with a view to show her presence at the spot or a false injury report had been obtained. Cogent and weighty reasons have been advanced in support of the above contentions with which we shall deal presently.

Having carefully scrutinised the. entire evidence on the record and having given our anxious consideration to all the facts and circumstances of the case, we find considerable force in the contentions raised on behalf of the Appellants. We are not convinced that the occurrence took place in the manner and at the time and place alleged by the prosecution, and as such it is not possible to hold with any amount of certainty that this murder had been committed by the Appellants.

In the first place we find that the Appellants had no strong motive to commit the murder of Jagir Singh. The prosecution does not say that some altercation took place at the spot during the course of which the Appellants assaulted the deceased as a result of which he died. On the other hand the prosecution'' case is that the Appellants came prepared armed with weapons to commit the murder of Jagir Singh. For committing murders of this nature the culprits must have sufficient motive. The only motive alleged by the prosecution is that two days prior to this occurrence accused Gurbax Singh and Balkar Singh had come to the hut of the deceased in a drunken state at about 9 p. m. whereupon Jagir Singh objected to their visit at the time, especially when he had a young daughter. This was not relished by the aforesaid accused persons who left extending threats to the deceased. No report of that occurrence was lodged by the deceased. Moreover, it does not stand to reason that merely because the deceased objecti on to the visit of these accused persons to their hut in a drunken state at an odd hour of the night, the accused persons would have taken into their heads to commit murder. The accused persons might be harbouring a grudge against the deceased but they had no strong motive to commit his murder. Moreover it does not stand to reason that a lady viz. Smt. Swarn Kaur would have also joined hands with other accused persons simply because the deceased had objected to the visit of accused Gurbax Singh and Balkar Singh at his hut in a drunken state. Smt. Swarn Kaur would have approved this undesirable behaviour of her brothers Gurbax Singh and Balkar Singh, and in any case she would not have joined hands with the other accused in committing this murder. In our opinion the accused persons had no sufficient motive to commit this murder.

We have reasons to believe that this occurrence did not take place in broad day light at 11 a. m. as alleged by the prosecution and we have also reason to believe that Smt. Gyan Kaur was not present at the spot and had not received injuries in this occurrence. On the other hand it appears to us that the deceased was murdered by some unknown persons during the darkness of the night or in the early hours of the morning, and after the recovery of the dead body a case was prepared and a false injury report was obtained or the injuries on the person of Smt. Gyan Kaur were manufactured with a view to show her presence at the spot. According to the prosecution, this murder had been preplanned and that all the accused persons suddenly arrived at the spot and started assaulting the deceased, and when his wife Smt. Gyan Kaur came to the rescue of her husband they assaulted her as well. Normally, the assailants were not expected to have planned to commit this murder in broad day light, instead they would have chosen to commit this murder at night. It is all the more surprising that the six assailants, five of whom were armed with deadly weapons and one with lathi, assaulted the deceased near the field of Jagarnath Pandey and thereafter they dragged him up to their huts which were about one or one and a half furlongs towards the south, especially when Smt. Gyan Kaur, her daughter, her son and other witnesses were present or had arrived at the spot. In the ordinary course, it was expected that they would have finished Jagir Singh then and there and thereafter would have taken to their heels and there was no reason why they would have unnecessarily dragged the dead body upto their own huts. Moreover, if this occurrence had taken place in the manner alleged by the prosecution, Smt. Gyan Kaur and at least some of the witnesses would, have followed the deceased and the assailants, may be from a distance, and they were not expected to have gone away without caring to see as to where the assailants were taking him and how they dealt with him. The conduct of Smt. Gyan Kaur in not following her husband and in returning to the village and then going to the police station was unusual. Moreover, if this occurrence took place in broad day light, and several persons had arrived at the spot and were raising an alarm, the assailants would not normally dare to drag the deceased upto their huts. If that was so, the normal conduct of the witnesses would have been that they would have followed the dead body, keeping some distance, and raised alarm so that a large number of persons would have assembled. Moreover, as we have observed earlier, there was no stensible reason why the assailants would have dragged the deceased up to their huts instead of finishing him at the spot where the occurrence started and then taking to their heels, and thereby run the risk of being of seen by other witnesses and also of being captured.

In this connection it is also noteworthy that although the Investigating Officer found blood at the spot where the occurrence took place and also at the spot from where the dead body was recovered, yet he did not recover any blood from any place in between, the two places. It is said that all the six accused bad badly assaulted Jagir Singh at the spot so much so that he was profusely bleeding and soon thereafter the assailants dragged him up to their huts. If that was so, it was but natural that some blood must have also fallen on the way through which the deceased was dragged. Surprisingly enough no blood was found on the way, which makes the prosecution story regarding dragging of Jagir Singh doubtful. It may be that Jagir Singh might have been assaulted at that spot or the blood found at the spot might be of some other person or Jagir Singh might have been reached or taken to the huts of the accused in some other manner; however, the prosecution theory that Jagir Singh was dragged frbm the place of occurrence upto the place where the dead body was found appears to be highly doubtful and in any case the prosecution version in that respect does sot inspire confidence.

It is also noteworthy that the medical evidence does not categorically show that the occurrence must have taken place at about 11 a. m. and the possibility that it might have taken place during the night or early hours of the morning cannot be ruled out. Dr. Siddh Gopal PW 7 who conducted the post mortem examination on 28.9.76 at 4 p. m. found that rigor mortis had passed off from the body but the decomposition had cot started. He stated in para 13 of his statement that rigor mortis could have passed any time between 18 to 36 hours after death. He further stated that decomposition starts after about 36 hours, and hence it was possible that the death of Jagir Singh might have occurred in the early hours of 27.9.76. Similarly Dr. S.K. Jaiswal (PW 3) who had examined the injuries of Smt. Gyan Kaur on 27.9.76 at 15.30 p. m. stated that the injuries were 1/2 day old, which means that they were more than 6 hours old, otherwise he would have mentioned that the injuries were fresh. Consequently the medical eviden ce does not rule out the probability that this occurrence might have taken place during the preceding night or in the early hours of the morning as suggested by the defence.

There are other circumstances which go to indicate that the first information report was not prepared till the Investigating Officer had visited the spot and held inquest and that originally the police had shown this case as one Under Sections 147/148/149/364/302 IPC and it was not shown as a case Under Sections 323/324 IPC and that these sections were shown in the first information report at a later stage. A perusal of the Fard regarding taking of blood stained earth, Bori Tat, Dhoti sword etc. (Ext. Ka 14), shows that this case being Crime No. 306 was Under Sections 147/148/149/364/302 IPC. There is no mention of Sections 323/324 IPC in this recovery memo. We find similar entries in the inquest report (Ex. Ka 13), which shows that the case was recorded Under Sections 147/148/149/364 IPC. If it was a fact that the first information report has been recorded at 14.10 hours and that the Investigation Officer had proceeded for the spot after the first information report had been lodged and the case had been registered, and that he prepared the recovery memo and the inquest report after reaching the spot, it was but natural that Sections 323/324 IPC would have also been mentioned in" the recovery memo and the inquest report. There could be no other reasons why these sections would have been left out from these documents. This can only be explained on theory that on receiving information that the dead body of Jagir Singh was lying near the huts of the accused, the Investigating Officer went to the spot and prepared the recovery memo and the inquest report or he might have received information that Jagir Singh was missing and when bis dead body was recovered he only thought it to be a case Under Sections 147/148/149/364/302 IPC and that is only these sections were mentioned in the aforesaid documents. However, lateron, it was decided that Smt. Gyan Kaur should be shown as an eye witness and hence the first information report was recorded subsequently, in which Sections 323/324 IPC w''ere also added. The relevant point is that if this was a fact that Smt. Gyan Kaur was also an eye witness and had received injuries during the course of this occurrence and if this was a fact that the first information report had been recorded at the time alleged by the prosecution and a case Under Sections 323/324 IPC had also been registered, there was no earthly reason why these sections would not have been mentioned in the recovery memo and the inquest report, while all other sections were mentioned therein. This was a very relevant consideration. The omission of Sections 323/324 IPC from the recovery memo and the inquest report clearly shows that till these documents were prepared, the first information report had not come into existence and it was not intended to show Smt. Gyan Kaur as an eye witness and as an injured person. In all probability it was ingenuity of the Investigation Officers'' mind that subsequently he decided to show Smt. Gyan Kaur as an eye witness, and, accordingly, he either got certain minor injuries fabricated on her person or a false injury report was obtained and thereafter the first information report was prepared Under Sections 147/148/149/363/323/324 IPC containing averments that she was an eye witness and had received injuries in this occurrence. In any case, the absence of Sections 323/324 IPC from the recovery memo and the inquest report are strong circumstances, which clearly point out that Smt. Gyan Kaur had not received any injuries in this occurrence.

The above important circumstances make the entire prosecution case highly doubtful. They clearly go to show that Smt. Gyan Kaur neither witnessed this occurrence nor received any injury at the hands of the assailants. We have already shown above that it was highly improbable that if she had been at the spot, she would not have cared to see as to where the assailants were taking her husband, especially when it was broad day light and the occurrence took place in open fields where she and other witnesses could have followed the assailants even from a considerable distance. If the prosecution can go to the extent of fabricating documents and obtain false injury report or manufacture injuries and if the first information report was prepared subsequently after incorporating Sections 323/324 IPC showing Smt. Gyan Kaur as an eye witness and an injured witness, it is not possible to place any reliance on the prosecution theory. It is also noteworty that Smt. Gyan Kaur categorically stated in para 31 of her crossexamination that the injuries received by her were caused by accused Gurbax Singh and Balkar Singh. According to the prosecution case, Gurbax Singh was armed with a Kanta while Balkar Singh was armed with Sooja. The injury report of Smt. Gyan Kaur, however, shows that she received minor abrasions, contusions and swelling, all of which were caused by blunt weapon. Only one accused viz. Kainail Singh is said to have been armed with lathis and she does not say that she was assaulteed by Karnail Singh. This further confirms that she had not received any injury in this occurrence and that in all probability some injuries were got manufactured on her person or a false injury report was obtained.

The above facts and circumstances totally demolish the prosecution case and go to show that the occurrence did not take place in the manner alleged by the prosecution and that Smt. Gyan Kaur was neither an eye witness nor she received any injury in this occurrence. No value can be attached to the statement of other two so called eye witnesses. PW 2 J as want Kaur was the own daughter of Smt. Gyan Kaur. She had not received any injury in this occurrence. Her presence at the spot was not free from doubt. The testimony of PW 4 Ram Sanehi does not inspire confidence. He was interrogated by the Investigating Officer after about a month of this occurrence. He was resident of village Deoria while this occurrence took place within the boundary of village Behta. He was only a chance witness. He was involved in a dacoity case, in which he was acquitted. In view of the important circumstances mentioned above, much value cannot be attached to his testimony.

In view of the facts and circumstances mentioned above, we are fully convinced that this occurrence did not take place at the time and in the manner alleged by the prosecution and that Smt. Gyan Kaur and other witnesses were not present at the spot nor Smt. Gyan Kaur received injuries at the hands of the Appellants. The prosecution case had not been proved by independent and reliable evidence. On the other hand, it appears that injuries on the person of Snt. Gyan Kaur were fabricated or a false injury report had been obtained and the first information report of this case was prepared subsequently after the Investigating Officer had visited the spot and had recovered the dead body and had prepared the inquest report. The prosecution has utterly failed to prove its case and the learned Sessions Judge was not at all justified in convicting the Appellants. These appeals should, therefore, succeed.

In the result, both these appeals are allowed. Appellant Karnail Singh died during the pendency of the appeal and his appeal has abated. The appeals filed by other five Appellants are allowed and they are acquitted of all the charges levelled against them. They are on bail. They need not surrender to their bail bonds, which are hereby cancelled and sureties discharged.