Barkat vs State of U.P.

Amar Saran, J.—This criminal appeal from jail has been preferred against the judgment dated 192005 passed by the Sessions Judge, Siddharth Nagar convicting and sentencing the appellant Barqat to imprisonment for life under Section 302 I.P.C.

On account of inability of the appellant to engage a Counsel, an amicus curiae Sri Dharmendra Singhal was appointed on his behalf who has been heard, and has ably assisted this Court. We have also heard the learned AGA and perused the judgment and record.

The prosecution case was that in the night of 26/2722004 Smt. Meena, wife of informant Narad was done to death in her hut which was located on the Bandh in village Mahratha. After the informant returned from Bombay (where he had been working for the past six months) on telephonic information about the murder, he lodged the report of the incident on 232004 at 10 a.m. at P.S. Mishrauliya.

He further mentioned in the report that the appellant who was a Rajasthani Tractor Driver and was doing the work of levelling the bandh, had been residing on the bandh for the past two months. He used to roam around the village and had been casting an evil eye on the deceased Smt. Meena, the wife of the informant. In the night of 26/2722004, a relation of the informant Ramadin had come to their place. Smt. Meena had given him food and made him sleep in the hut. A lantern was burning in the hut as usual. At about 1 a.m., the appellant came to his door and tried to wake up his wife. When Smt. Meena called out as to who it was then Barqat entered the hut. Soon thereafter, the sound of someone being strangled was heard by the informant''s bhabhi Smt. Amrawati and the visiting relation Ramadin. They proceeded in the direction of the sounds lighting torches and found Barqat running out towards the west from the hut. When they entered the hut they found Smt. Meena lying dead and then Amrawati and Ramadin ran behind Barqat flashing torches and the villagers Ram Niwas and others also followed him. But Barqat gave out a threat that if any one came near him, he would meet the same fate. Thereafter he fled from the spot. As the witnesses were initially very scared, they did not disclose the whole version to him but after he had made enquiries about the matter he was lodging the said report.

The report was registered at P.S. Mishrauliya in the presence of PW8 S.I. Ram Daras Yadav who was the SHO of the Police Station and a case under Section 302 I.P.C. was registered at case crime No. 83 of 2004. He commenced the investigation of the case and entered the nakal chik report in the case diary and recorded the statements of the scribe Narpati and the informant Narad. He thereafter proceeded to the spot alongwith the informant where he recorded the statements of Amrawati and made a spot inspection and prepared recovery memos of a torch of one Ramnivas and a lantern of the informant Narad, and the torch of Smt. Amrawati (Ext. Ka8 and 9) which were given in the supurdagi of the Ramnivas and the informant on 332004. He entered the postmortem report in the CD and after arresting the accused produced him in Court. He recorded the statement of the accused on 433004. He again visited the village Mahratha where he recorded the statement of Ramadin and prepared the Fard of the torch of this witness. He also recorded the statement of inquest witnesses Nandu, Moti and Ram Sewak. On 832004 he received the original inquest and other papers which were entered in the CD.

Prior to this on 2722004, the informant''s father Moti had given information about the death of Smt. Meena at the police station on the basis of which inquest and postmortem was done on the deadbody.

On 1332004 he again got engaged in the investigation of the case and after completing the investigation and on the basis of the statements of the witnesses recorded, postmortem report, site plan etc. he submitted the chargesheet under Section 302 I.P.C. vide chargesheet No. 45 of 2004. He proved the writing of Constable Ram Dayal who prepared the chik FIR. The Fards of taking the torch and lantern in possession are in his hand writing (Exhibit Ka8 and 9), the site plan (Exhibit Ka 10) and the inquest (Exhibit Ka3) were in his hand writing. He also prepared the other papers for postmortem which was conducted earlier on the body of Meena Devi, aged about 25 years, by Dr. J.P. Singh, PW 5, on 2822004 at 4 p.m. at District Hospital Siddharthnagar. It showed that the death had taken place about 24 to 40 hours earlier. Rigor mortis was present in the lower limb although it had passed off from the upper limb. There was no decomposition. There was bleeding from the nose, mouth and left ear. The following antemortem injuries were present on the body of the deceased :

(1) Contusion 4 x 3 cm below right eye, bluish.

(2) Contusion size 1.5 cm x 1 cm over upper lip and near nose.

(3) Swelling around neck and face bluish colour.

(4) Conjctivea Echymosed.

(5) Abrasion size 2 cm 1 cm on right cheek. 2 cm anterior to right ear.

(6) Tongue bitten and lacerated in between teeth.

Internal examination revealed that the neck was swollen. On cutting the skin there was haemorrhage and clot under the skin and muscular places anteriorly. Pleura, larynx, bronchi, right and left lungs were congested. The buccal cavity, teeth, tongue and pharynx were congested with bleeding. The stomach contained partially digested rice. The small intestines contained digested matter and gas. The large intestines contained faecal matter with gas. The bladder was partially filled. Death appeared to have taken place within 3 to 5 hours of the last meal and the cause of death was asphyxia.

After submission of the chargesheet the case was committed and charge were framed by the learned Sessions Judge on 2472004 under Section 302 IPC against the appellant, who pleaded not guilty and claimed to be tried.

The prosecution has examined 5 witnesses of fact viz. PW 1 Narad (husband of the deceased), PW 2 Moti (fatherinlaw of the deceased), PW 3 Ramadin, PW 4 Ram Bharat, PW 7 Smt. Amrawati.

PW 5 Dr. J.P. Singh, who conducted the postmortem on Smt. Meena, PW 6 Constable Ram Dayal, who prepared the chik FIR PW 8 SI Ram Datt Yadav were the formal witnesses of this case.

PW 1 Narad has stated that he was one of four brothers who were all working as labourers in Bombay. He was in Bombay from six months prior to the incident. At his home, his Bhabhi, mother and father, little children and his wife resided. The whole settlement of the village was located on a bandh. On receiving telephonic information on 2722004 about the death of his wife he reached home from Bombay. Some persons of Rajasthan had come with tractors to the village bandh for the purpose of repairing it. One of the tractor drivers was the appellant Barqat. The villagers disclosed that Barqat used to visit all the village houses but his character was unreliable.

On 2622004 his relation Ramadin had come to his house who was fed by his wife and made to sleep in the hut. The villagers disclosed that a lantern was burning as usual and at 1 a.m. Barqat came to his house and tried to wake up his wife. As Barqat had evil intentions towards his wife, his wife cried out, ''Who is it''? His sisterinlaw overheard this conversation. After that Barqat entered the hut. Thereafter his sisterinlaw and relation Ramadin who had heard the sound of someone being strangulated rushed out with torches and saw Barqat running away. After that his Bhabhi and Ramadin entered the hut where they found his wife lying dead. On the cries of his Bhabhi and Ramadin, the villagers Ram Lal and Ram Niwas arrived there. They also tried to pursue Barqat with torches but he gave out some threats and then escaped. All his family members were extremely afraid, hence in the written report given by his father on 272 2004 all the facts were not mentioned. On enquiries thereafter from his family and other villagers, he got the report scribed by Narpati (Ext. Ka1). He signed and handed it over at PS Misraulia.

PW 2 Moti the father of the informant, Narad has stated that his four sons were working in Bombay. The deceased Meena had a small baby in her lap. Some months prior to the incident, persons with tractors had come from Rajasthan for the purpose of repairing the bandh and were staying there. Barqat, a tractor driver, did not use to sit in his house. Meena had a hut separate from his. His other daughterinlaw used to reside in another hut. On the night of incident, his relation Ramadin had come to their place and was staying in Meena''s hut. In the night in question Amrawati and Ramadin had seen Barqat running away from Meena''s hut. On their cries a lot of villagers arrived. Later they saw Meena lying dead on her cot and blood was emanating from her nose and mouth. He stated that he dictated a report to Shobhnath Chaudhary the next morning and handed it over at the police station. As he was extremely disturbed and under shock he did not mention the entire facts in his report (Ext. Ka 2). After his son arrived from Bombay, he made enquiries about the true facts and then lodged the FIR of this case. He was also an inquest witness alongwith others in the inquest of his daughterinlaw Meena and gave a statement to the investigating officer.

PW 3 Ramadin deposed that he was related to Moti. On the night of the incident after taking his food he was sleeping in the hut of Amrawati. The deceased Meena was sleeping in the adjoining hut alongwith her little daughter. At about mid night he heard the sound of someone trying to strangulate her coming from Meena''s hut. On hearing the noise he came out with Amrawati and on flashing his torch he saw Barqat coming out of the hut. He chased Barqat, but could not apprehend him after Barqat threatened to kill them. Barqat was a tractor driver from Rajasthan. He was staying alongwith other tractor drivers at the bandh in village Mahratha. One or two days after the incident he left the village. After 4 or 5 days he came back to the village to find out about the cremation ceremonies. The investigating officer who had come on that day recorded his statement. As he had not brought his torch that day he could not show him his torch which had three cells.

PW 4 Ram Bharat has disclosed that at about 1 a.m. on the night of incident there was a loud cry from the house of Moti Lal and Narad. He went in that direction alongwith other villagers. Then Moti''s daughterinlaw Amrawati disclosed that Barqat, who belonged to Rajasthan and had come for repairing the bandh, had murdered Narad''s wife and run away. He had not seen Barqat running away but he was giving his evidence on the basis of information received from Amrawati. When he went inside the hut he saw Narad''s wife lying dead. He had gone to the police station for giving the information. Thereafter the investigating officer had come at about 3 or 3.30 p.m. for conducting the inquest. Some of the persons, who were present at the spot, were appointed inquest witnesses, one of whom was this witness. According to the inquest witnesses, death did not appear to be natural but it appeared to be a case of murder. Hence the body was sealed and sent for postmortem. He attested his signature on the inquest (Ext. Ka3). Barqat had been working at that bandh for the past three months.

PW 7 Smt. Amrawati has deposed that in the night of incident she was in her hut. Her husband was in Bombay. Her relation Ramadin had come to her house. She and the deceased Meena had fed Ramadin and made him sleep in the hut. She was sleeping in the inner part of the hut whereas Ramadin was sleeping in the outer part. Meena was sleeping in the adjoining hut. Her motherinlaw and fatherinlaw were sleeping in the hut which was located below the bandh. Two months prior to the incident persons had come on tractors from Rajasthan for doing mud work on the bandh. The tractor drivers, including Barqat, and contractors used to reside on the bandh. Some of the Tractorwallas used to reside in the empty huts of her pattidars.

In his spare time Barqat used to roam about at the doorsteps of different villagers. Sometimes he used to come even to warm himself on the fireplaces set up by the villagers. He had an evil eye and indulged in teasing the villagers including the deceased Meena. On that account Meena had even scolded him. On the night of incident a lantern was burning in the huts of Meena and PW 7 Amrawati. At about 1 a.m. Barqat had come outside Meena''s hut and he was calling out her name, whereupon PW 7 had woken up. Meena had questioned as to who it was. Later there was silence but when this witness heard the sound of someone being throttled, then she alongwith Ramadin went in the direction of Meena''s hut. They saw Barqat running out from the hut. After that they entered Meena''s hut where they found her lying dead. Then they chased raising an alarm. Then he gave out threats that he would kill these persons. Thereupon the witnesses returned. No action was taken till the morning out of fear. Her fatherinlaw had gone to the police station to disclose that Meena had died. When her dewar Narad returned from Bombay, he was informed about the incident. Then he lodged the First Information Report in the police station. The Investigating Officer interrogated this witness who disclosed the incident to him.

The other three formal witnesses are Dr. J.P. Singh, who has conducted the postmortem on 2822004, as earlier described above, PW 6 Constable Ram Dayal, the chik writer who prepared the chick report (Ext. Ka5) on the basis of the report (Ext. Ka1) lodged by Narad which was scribed by Narpati and assigned a crime number to the case. He also made the relevant necessary entries in the general diary (Ext. Ka6). Prior to this, after the death of Meena, the informant''s father Moti had given a written report scribed by Shobhnath Chowdhury on 272 2004, which was entered at 14.30 hours in the general diary (Ext. Ka7). The steps taken for the investigation by PW 8 Ram Daras Yadav, the Investigating Officer of this case, have already been detailed hereinabove. The statement of the appellant, Barqat, under Section 313 CrPC was of complete denial. He merely stated that he had been falsely implicated due to enmity. He claimed to have no knowledge of the prosecution documents and how they were prepared. He did not lead any evidence in defence.

It was argued by Sri Dharmendra Singhal, learned amicus curiae that the report submitted by Moti, father of the informant, on 2722004 at 2.40 p.m. (Ext. Ka7) was indeed the FIR of this case, as it clearly mentioned that Meena had died an unnatural death. The subsequent report lodged by Narad on 23 2004 at 10 a.m. was not the FIR which could only be used for the purpose of contradiction under Section 145 CrPC of the Indian Evidence Act, and could not corroborate the version of the informant Narad. As it was signed it could not be read even under Section 161 CrPC, as it was in the teeth of Section 162 CrPC, which prohibits statements to police officers being signed.

Secondly, the version which emerged immediately after the incident i.e. on the morning of 2722004 mentioned in the report of Moti, only mentioned that Moti''s daughterinlaw Meena, aged 25 years, had gone to sleep in her hut after cooking and eating her food. In the morning when his elder daughterinlaw, Subhawati, went to wake her up, she was found lying dead on her cot and she was bleeding from her mouth and nose. His two sons had gone to Bombay for the sake of livelihood and were not present at home. Meena''s maternal home was at Basdila where information was sent. Meena''s father was also at Bombay but her mother Phuljhari was in the village because of which there was delay in lodging the report by Moti. It is argued that there is no mention of the story about the complicity of Barqat in this report or information given by Moti which raises a doubt about the credibility of the version mentioned in the Narad''s FIR and the version given out by the witnesses Narad, Ramadin and Smt. Amrawati. So far as witness PW 4 Ram Bhagat was concerned, it was argued that in any case he stated that he arrived at the place of incident after the accused had run away and admittedly he claimed to have given the information on the basis of hearsay evidence which is legally inadmissible. It was also suggested that Amrawati and Ramadin were unreliable witnesses and Ramadin was a man of loose character, who was having illicit relation with Smt. Amrawati and was also intending to have illicit relations with the deceased Meena, who might have resisted his overtures, whereupon he murdered her by strangulating her and implicated the appellant Barqat to save his own skin.

It was further argued by the learned amicus curiae that this was a case of circumstantial evidence and the evidence must unerringly point to the guilt of the accused and should be incapable of any other reasonable and plausible explanation. In case, there is any weakness in the link of the chain of circumstances, reliance should not be placed for recording the conviction of the accused.

Learned AGA, on the other hand, argued that there were clear and consistent statements of PW 3 Ramadin and PW 7 Amrawati and that they had seen the appellant running away with the help of torch lights and had immediately thereafter found the deceased lying dead in her hut, when they had reached the place of incident on hearing the sound of someone being strangulated. PW 4 had arrived soon after the incident and was told about the involvement of the appellant in the incident. There was no disclosure about the incident in the report lodged by Moti because initially the witnesses who were labourers appeared to have taken no action against the appellant because of the fear of the police. The postmortem was consistent with the version of Smt. Meena having been throttled. The report lodged by Moti on 2722004 was only an information given to the police and it was not an FIR mentioning that a crime had been committed. There was no reason for falsely implicating the appellant as no enmity between the appellant and the prosecution witness has been shown.

After carefully considering the arguments of the learned Counsel for the appellant and the learned AGA for the prosecution and examining the evidence in depth, we think that the appeal deserves to be allowed and the conviction of the appellant Barqat set aside.

It was argued by the learned Counsel for the appellant that the application dated 2722004 (Ext. Ka2) submitted to the SHO, PS Misraulia, signed by Moti and scribed by Shobhnath Chowdhury on the basis of which an entry was made in the general diary by rapat No. 19 (Ext. Ka7), which specifically mentioned that Smt. Meena was found lying dead in her hut and blood was emanating from her mouth and nose and requesting for appropriate action in the matter, could not be said to be merely a cryptic report or telephonic information but in fact it constituted information under Section 154 CrPC because it disclosed the commission of a cognizable offence and the relevant general diary entry was made in respect of the said information by PW 6, Constable Ram Dayal. The said information was indeed essential for setting the criminal law in motion. There appears to be substance in this contention.

If this be the position, then the socalled written FIR dated 232004, which was registered at the said police station at Crime No. 83 of 2004 under Section 302 IPC in which the informant Narad, husband of the deceased Meena, had nominated the appellant as the accused, would come within the interdict of Section 162(1) CrPC as it would amount to being a written statement given by a person to a police officer in the course of the investigation which was signed.

However, as laid down in the case of State of U.P. v. M.K. Anthony, AIR 1985 SC 48 and State of Rajasthan v. Teja Ram, AIR 1999 SC 1776, even if the said FIR by Narad was to be excluded from consideration, however, that would not bar this witness Narad (PW 1) from giving evidence in the case, even though the FIR may not be amenable for use in corroborating the testimony of this witness in Court.

Quite apart from the question of admissibility or inadmissibility of Narad''s FIR, the main problem that the version given in this FIR and deposed to thereafter by Narad was that immediately after the incident on the next morning, in the information that was given by Moti, father of Narad and father inlaw of the deceased Meena, it was only mentioned that Smt. Meena had gone to sleep in her hut the previous night after preparing and consuming food. That her deadbody was seen lying on her cot the next morning and blood was coming out of her mouth and nose. However, there is no mention in the said FIR as to why the information about his other daughterinlaw Smt. Amrawati (PW 7) and visiting relation Ramadin having heard the sound of someone being strangled and thereafter of having seen Barqat come out of the hut of the deceased Meena in the night of incident i.e. 26/2722004 who fled issuing threats after the witnesses tried to apprehend him and thereafter when they entered Smt. Meena''s hut, they found her lying dead there were not mentioned in his FIR. The version on the other hand, in the initial information given by Moti was that his elder daughterin law Subhawati found Smt. Meena lying dead on her bed the next morning. This is totally inconsistent with the version that Amrawati and Ramadin had witnessed the incident in the night and on their hue and cry villagers had got attracted, and that it was not possible that if their version was true, why it would not have been mentioned in his information to the police given by Moti on 2722004. Even in the inquest which was conducted after he had given the information to the police on 2722004 of which Moti was an inquest witness there is no disclosure of the appellant having been seen the previous night coming out of the hut of Smt. Meena. Also although in the examinationinchief in his deposition PW 2 Moti states that prior to the night of the incident his relation Ramadin had arrived who had stayed in Meena''s hut and that Amrawati and Ramadin had seen Barqat running away from Meena''s hut in the night of incident. However, in his crossexamination again he returns to the version given in his application dated 2722004 that in the morning his elder daughterinlaw raised a cry on discovering the deadbody of Meena and thereafter Amrawati also obtained information of the incident. Then they all rushed there and found Meena lying dead on her bed with blood coming out of her mouth and nose. He was unable to state how she had died. He further states that after his son Narad had come from Bombay on telephonic information and had asked Moti as to how Meena had died and he answered that Meena had died in her sleep.

The evidence of PW 3 Ramadin is also not very reliable for establishing complicity of the appellant in the incident. Admittedly, his visit to the place of incident was a matter of chance. If he had indeed heard the noise of Meena being throttled and thereafter he alongwith Amrawati had seen the appellant running away from the hut of Meena and thereafter entered Meena''s hut finding her dead there, then these facts being absent in the information given by Moti to the police the next day is the principal reason for disbelieving this version being set up by this witness, PW 3 Ramadin as also the version of PW 7 Amrawati. He also claims to have gone away the next day after the incident and to have mysteriously reached the place after 4 or 5 days, apparently for the purpose of performing Meena''s last rites when the Investigating Officer happened to reach there and who recorded his statement under Section 161 CrPC. His torch was never produced because he had stated that he had not brought his torch on that date. There is some reason to suspect the character of this witness because whilst this witness and Amrawati have deposed that he slept in Amrawati''s hut on the night of incident Moti, PW 2 has stated that he slept in Meena''s hut, and as suggested to this witness in the background of the circumstance that the husbands of these women were away in Bombay the needle of suspicion also pointed against this witness. If he wanted to have illicit relations with Meena who may have resisted, he could also have decided to strangle her, and to have implicated the appellant to save his own skin. But these would be matters for speculation. What we are only required to examine here is the adequacy and the reliability of the evidence for establishing the complicity of the appellant in this crime. Admittedly, this witness is resident of another village, Sunauli Bazar, and he was a mere visitor who sometimes used to come to village Maharatha where the incident took place and there was no good reason for this witness to know the name of Barqat. His explanation that he knew Barqat''s name because the villagers called him by that name, does not appear to be very convincing. As he has stated that he was not acquainted with Barqat prior to the incident, he is unable to state as to who were the other villagers who had gone to see the deadbody in the night. He further states that he had told Moti about having seen Barqat running out of the hut but he disclaims any knowledge about what Moti wrote out in his report, and admittedly this vital information was missing from Moti''s report lodged next day at 2.30 p.m. which contained the version that the deadbody of Meena was found on her cot next morning by his elder daughterinlaw, Subhawati. All these circumstances, create grave doubts about veracity of the version of this witness having seen Barqat running out of Meena''s hut at about 1 a.m. the previous night, whereupon he had entered her hut and found Meena''s deadbody.

So far as PW 4, the labourer Ram Bharat is concerned, he states that at about 1 a.m. on hearing an alarm from the house of Moti and Narad he had reached there and Moti''s daughterinlaw Amarawati had disclosed to him that Barqat, who was resident of Rajasthan and was engaged in laying mud on the bandh, had murdered Narad''s wife and run away. Admittedly, he arrived after the incident. His evidence is, therefore, in the nature of hearsay which is inadmissible in view of Section 60 of the Indian Evidence Act. He was also an inquest witness after the Investigating Officer arrived at the spot at about 3 or 3.30 p.m. in consequence of the report of Moti and that the inquest witnesses and others had only deposed that this was a case of unnatural death and, thereafter, the body was sent for post mortem. This version of the incident that the appellant had been seen running away from Meena''s hut the previous night is conspicuous by its absence in the inquest report. He states that he learnt about the name of Barqat because the villagers took his name but he did not know the name of any other tractor drivers from Rajasthan who were present at the time in the village.

So far as PW 7 Amrawati is concerned, the principal criticism of her evidence is the same as that of Ramadin that if indeed she had known about the presence of Barqat at the time of incident and had seen him running away from Meena''s hut where after she had seen Meena lying dead on her cot in her hut, she would have certainly disclosed the said information to Moti and it would most certainly have found mention in Moti''s report. From her deposition that in his free time Barqat used to roam about in different houses and tease the villagers and that Meena had scolded him, may have given rise to suspicion in her mind that Barqat had murdered Meena after her deadbody was discovered in her cot in her room and blood was coming out of Meena''s mouth and nose the next morning. It is difficult to accept her explanation and it is only owing to fear that they did not initiate any proceedings. This fact is incorrect as indeed Moti had gone to the police station, lodged the FIR and it was considered to be a case of unnatural death as blood was coming out of Meena''s mouth and nose and inquest and postmortem were conducted on the body. We, therefore, think that her disclosure to Narad only after he returned, implicating the appellant, appears to be a belated disclosure and that the appellant appears to have been implicated out of suspicion and the alleged FIR by Narad was based on suspicion rather than on any legal evidence.

For all these reasons, no reliance can be placed on the testimony of these witnesses, principally on the ground that the version of the appellant having been seen coming out of the hut of Meena on the night of the incident appears to have seen the light of the day after 4 or 5 days after the incident when the report was lodged by Narad on 232004. In these circumstances, it is not very material as to why Barqat is being nominated if he is not involved in the offence. Any case has to be based on legal evidence and merely because no reason can be suggested why a particular accused has been falsely implicated cannot provide a ground for convicting such an accused if there is no reliable evidence to establish the complicity of the particular accused in the offence in the first place.

In this view of the matter, this appeal succeeds and is allowed. The judgment of the Court below is set aside. The appellant is acquitted of the charge. He is in jail. He shall be release forthwith unless wanted in any other case.