Bramhanand and Another vs State of U.P.

M. Chaudhary, J.—This is a jail appeal from judgment and order dated 17th of March, 1999, passed by Sri Ram Lal special Judge (E.C.) A.S.J., District Farrukhabad in Sessions Trial No. 692 of 1995, State v. Ram Sahai and Ors. convicting the Appellants u/s 302, I.P.C. and sentencing each of them to imprisonment for life thereunder.

Co-accused Ram Sahai who was also convicted along with the Appellants above named u/s 302, I.P.C. and sentenced to imprisonment for life thereunder also filed Jail Appeal No. 2667 of 1999, Ram Sahai v. State of U. P., but that appeal stood abated as Ram Sahai was reported having died.

Brief facts giving rise to this appeal are that at about 8.35 a.m. on 29th of August, 1995, Smt. Shakuntala lodged an F.I.R. at police station Farrukhabad Kotwali, district Farrukhabad that she was married with Hira Lal son of Ram Sahai some two years ago but since the very inception from her marriage there was a dispute over the family house between her husband Hira Lal on one hand and her father-in-law Ram Sahai and her husband''s younger brothers Ram Asrey and Bramhanand on the other as they did not want that she should reside along with her husband at Harijan Nagla Papiyapur and quarrel had taken place between them several times. On account of fear Smt. Shakuntala started residing at Mukhia Ka Nagla Budhnamau and her husband Hira Lal also used to reside with her but at times he used to visit Papiyapur as he was constructing his own house over the land there. During the night between 28th and 29th August, 1995, Smt. Shakuntala and her husband Hira Lal were asleep in the dilapidated portion of the house as they had come last evening for supervising the constructions. Smt. Shakuntala was sleeping inside the apartment of the dilapidated portion and Hira Lal was asleep in the courtyard in front of the apartment and a lantern was lighted there kept near the door. At about 1.00 a.m. in the night Ram Sahai along with his sons Bramhanand and Ram Asrey reached there and pressed Hira Lal. On hearing the shrieks of Hira Lal, Shakuntala came out in the courtyard and saw Bramhanand giving spade blows to her husband. Thereon she raised hue and cry attracting thereby one Hiralal son of Ghurai Lal, Ram Das and Daya Ram to the scene of occurrence and sighting them the assailants took to their heels. It was also mentioned in the F.I.R. that on account of fear Smt. Shakuntala could not go to the police station to lodge an F.I.R. soon after her husband''s murder.

The crime was registered at the police station against the accused. S.I. Manoj Kumar Awasthi the Investigating Officer visited the scene of occurrence and got the spade thrust into the head of the deceased removed and drew inquest proceedings on the dead body of Hira Lal preparing the inquest report (Ext. Ka-5) and other necessary papers (Exts. Ka-6 to Ka-9). He prepared the recovery memo of the spade recovered and that of blood stained and simple earth collected from the scene of occurrence (Ext. Ka-11). The Investigating Officer also recorded statements of the witnesses and did other necessary things.

Autopsy conducted on the dead body of the deceased by Dr. Yogendra Pratap Medical Officer District Hospital, Fatehgarh on 29th of August 1995 at about 5.10 p.m. revealed three ante-mortem incised wounds on the dead body one 13 cm. - 1.5 cm. cavity deep over left side of head occipital region and underlying bone cut and brain matter coming out and two ante-mortem incised wounds on left side back of neck one 12 cm. - 2 cm. - bone deep and 3rd cervical vertebrae cut and the other 11 cm. - 3 cm. - cervical vertebrae deep 3 cm. below the neck injury aforesaid with margins clean cut. On an internal examination occipital bone on left side was found cut and fractured and brain and its membranes also cut. The doctor opined that death was caused due to shock and haemorrhage as a result of ante-mortem injuries about half a day ago.

After completing the investigation the police submitted charge-sheet (Ext. Ka-12) against the accused accordingly.

The accused pleaded not guilty denying the alleged occurrence altogether. They stated that Smt. Shakuntala was not legally wedded wife of Hira Lal and since she was not of sound character they used to criticise her and on that account she was annoyed with them, that on the alleged night someone murdered Hira Lal and in the morning they learnt that Hira Lal was murdered and that then Ram Sahai himself went the police station Kotwali to inform the police thereabout and thereon the Sub-Inspector accompanying with him went to the scene of occurrence and that thereafter Smt. Shakuntala who resided at Mukhia Ka Nagla Budhnamau was called therefrom and then the Sub-Inspector got the report scribed by one Ashok at his command implicating the accused in the case falsely.

In order to bring the charge home to the accused the prosecution examined Hira Lal son of Ghurai Lal (P.W. 1), Daya Ram (P.W. 2) and Smt. Shakuntala (P.W. 3) as eye-witnesses of the occurrence. Dr. Yogendra Pratap Medical Officer (P.W. 4) who conducted autopsy on the dead body proved the post-mortem report. H.M. Sheo Avtar Pandey (P.W. 5) who prepared check report on the basis of the written report handed over by Shakuntala at the police station proved the F.I.R. (Ext. Ka-3) and G.D. entry regarding registration of the crime (Ext. Ka-4). S.I. Manoj Kumar Awasthi (P.W. 6) who investigated the crime and submitted charge-sheet against the accused has proved the police papers. Out of three eye-witnesses examined by the prosecution P.W. 1. Hira Lal and P.W. 2 Daya Ram did not support the prosecution case as both of them stated in their examination-in-chief that they did not witness the murder of Hira Lal son of Ram Sahai and that it was only in the next morning that they learnt that Hira Lal was murdered in the night. However, P.W. 3 Smt. Shakuntala, wife of the deceased supported the prosecution case as disclosed in the F.I.R. and relying upon her solitary testimony learned Additional Session Judge held the accused guilty of the charge levelled against them and the accused were convicted u/s 302, I.P.C. and sentenced to life imprisonment thereunder by the impugned judgment and order.

Feeling aggrieved by the impugned judgment and order the Appellants preferred this appeal from jail for redress.

We have heard Sri L. K. Pandey learned Amicus Curiae for the Appellants and Sri Shekhar Yadav learned A.G.A. for the State.

We have gone through the record and the impugned judgment and order and given our anxious consideration to the findings recorded by the learned Additional Sessions Judge but we do not find ourselves in agreement therewith for the following reasons: First, F.I.R., of the case lodged at the police station Farrukhabad Kotwali, is much delayed as the alleged incident took place at about 1.00 a.m. during the night between 28th and 29th of August, 1995 but F.I.R. of the alleged murder was lodged at the police station next morning at about 8.35 a.m. whereas the police station is situate only at a distance of three kms. from the place of occurrence. P.W. 3 Smt. Shakuntala the first informant stated in her examination-in-chief that she did not go to the police station to lodge an F.I.R. of the said occurrence with the police in the night on account of fear. She also stated that she was all alone in her house and in the morning she got report of the occurrence scribed by one Ashok and then went to the police station Farrukhabad Kotwali and handed over the written report to the police there. However, she stated in her cross-examination that she had got the report scribed by Ashok in the night itself. Even if she did not go to the police station to lodge F.I.R. of the occurrence in the night on account of fear she could have gone to the police station well in the dawn and lodged F.I.R. of the occurrence with the police there by 5.30 a.m. or so as the incident took place in the month of August and the police station is situate at a distance of three kms. only from the place of occurrence. The unexplained delay of some three hours in lodging the F.I.R. with the police at the police station is fatal to the prosecution case as the F.I.R. loses all its corroborative value and authenticity.

Secondly, P.W. 3 Smt. Shakuntala, the first informant mentioned in the written report handed over at the police station that since the relations of her husband Hira Lal on one hand and father-in-law Ram Sahai and his sons Bramhanand and Ram Asrey on the other were strained she used to reside at Mukhia Ka Nagla Budhnamau within the limits of police station Fatehgarh and her husband Hira Lal used to visit Harijan Nagla Papiyapur now and then in order to supervise the constructions of his house and that the fateful night she and her husband Hira Lal went there and supervised the constructions and in the night she slept inside the dilapidated apartment of the house and her husband in the courtyard in front of that apartment. Learned Counsel for the Appellants argued that had Smt. Shakuntala been present along with her husband Hira Lal at Papiyapur the F.I.R. should have been lodged at the police station soon after the murder of her husband and hence the possibility could not be ruled out altogether that Smt. Shakuntala was not present at her husband''s place at Harijan Nagla Papiyapur and after the murder of Hira Lal she was called from Mukhia Ka Nagla Budhnamau and that it was thereafter that the report was scribed at the instance of the Investigating Officer. The said argument advanced by the learned Counsel for the Appellants is not devoid of any force.

Thirdly, there are material contradictions and inconsistencies in the statement of P.W. 3 Smt. Shakuntala which go to the very root of the case as she stated in her examination-in-chief that on hearing the shrieks of her husband as she went out in the courtyard and saw that her husband was being assaulted she raised hue and cry but none of the witnesses reached the scene of occurrence at the time of assault as they reached there after a little while but at another place she stated that none had reached at her house in the night and she kept crying the whole night all alone.

Fourthly, the dead body of Hira Lal was found lying on the ground. A perusal of the post-mortem report also goes to show that the doctor conducting autopsy on the dead body mentioned therein that dried clotted blood at places over body mixed with mud was found. A perusal of the statement of P.W. 3 Smt. Shakuntala goes to show that her father-in-law Ram Sahai owned a big house and sufficient land and had allocated a portion of the house along with the land to his son Hira Lal and on that land Hira Lal was getting his house constructed. It looks somewhat unbelievable that a person having sufficient means would sleep on the ground in the night without any cot or bedding, pillow or dohar etc. It all goes to show that Hira Lal was not murdered in the manner alleged by the prosecution.

Fifthly, motive attributed for the alleged crime has not been established satisfactorily. P.W. 3 Shakuntala stated in her deposition that she was married with Hira Lal son of Ram Sahai some 2-3 years ago and a daughter was born to her out of the wedlock but she expired. She also stated that her father-in-law Ram Sahai owned a house and he had allocated a portion including some land to her husband and on that very land Hira Lal was constructing his house. She also stated that her ''devar'' Bramhanand who was married had also got sufficient land and his younger brother Ram Asrey was unmarried at the time of the incident. Considering all these circumstances it is difficult to believe that Ram Sahai along with his sons Bramhanand and Ram Asrey would have murdered his son Hira Lal only because he had married with Shakuntala who was allegedly not of sound character. It is a quite different matter that Shakuntala was already married with one Luxmi resident of Nagla Budhnamau and had got three children from him and then married with Hira Lal and on that account her father-in-law Ram Sahai might have some annoyance but it is difficult to believe that he along with his younger sons would go to the extent to murder his son Hira Lal on that account.

Lastly, the blood stained spade was not produced before the doctor appearing in the witness box for his opinion if the ante-mortem injuries found on the dead body could be caused by that very spade.

Thus, in view of the above infirmities and incongruities in the prosecution case and evidence, we are of the opinion that implicit reliance cannot be placed on the interested and solitary testimony of P.W. 3 Smt. Shakuntala, wife of the deceased whose presence is doubtful at the place of occurrence at the time of the incident. We, therefore, find that the prosecution failed to bring charge home to the accused beyond reasonable doubt. The accused Appellants are, therefore, held not guilty of the charge levelled against them and entitled to acquittal. Hence, conviction and sentence recorded against the accused are hereby set aside.

The appeal is allowed and the impugned judgment and order convicting the accused and the sentence awarded to them is hereby set aside. Both the accused Appellants are hereby acquitted of the charge levelled against them. They are in jail. They shall be released from the jail forthwith if not wanted to remain therein in any other case. C.J.M., Farrukhabad, shall do the needful.

Rs. 1,000.00 (Rs one thousand) shall be paid to Sri L. K. Pandey Amicus Curiae for the Appellants as his legal fee.

Office to send copy of the judgment to the court below along with record of the case for compliance immediately. Compliance report within one month from the date of receipt of the copy of judgment.