Chandrika Prasad vs State of U.P.

Jagdish Bhalla, J.—This appeal is directed against the judgment and order dated, 451984 passed by the Sessions Judge, Kheri in Sessions Trial No. 278 of 1983 convicting the appellant under Section 304, Part (II) I.P.C. and sentencing him to four years ''rigorous imprisonment.

On 2231981 at about 10.00 a.m. on F.I.R. was lodged at Police Station Maigalganj, district Kheri under Section 308, I.P.C. inter alia mentioning therein that on2131981 at about 6.00p.m., which was the day of the Holi festival, the villagers were visiting at the house of Kamta P.W. 2 as it was the first Holi after the death of the father of Kamta. Roop Rani P.W. 1 was sitting at her entrance and Sobran P.W. 3, Ajodhi P.W. 4, Ummed and Pancham (deceased) were near the entrance of the house. The deceased Pancnam was embracing Ummed. Accusedappellant Chandrika armed with lathi reached there from a Galiyara towards east and said to Pancham "My enemy, the chance has come" and gave a lathi blow on the head of Pancham deceased who fell down. Kamta P.W. 2 scolded the accused Chandrika who ran away from the spot. Sobran P.W. 3, Jodhi P.W. 4 and others were the eyewitnesses of this incident. Pancham deceased who had fallen down became unconscious although there was no bleeding. Roop Rani tried her level best to arrange for a bullockcart to take Pancham to police station but she could get it the next morning when Pancham was escorted to the police station Maigalganj and an FI. R. of the incident was lodged by Roop Rani, as slated above. Pancham was, thereafter, taken to the hospital at Sitapur where he was examined on 2231981 by Dr. K.K. Misra P.W. 6 who prepared the injury report (Ext. Ka3). However, Pancham died on 2831981. After the death of Pancham'' the offence was converted in to Section 302, I.P.C.

Learned Counsel for the appellant submitted that there is a delay in lodging the first information report as the occurrence took place on 21 31981 at 6.00 p.m. whereas the report was lodged on 2231981 at 10.00 a.m. The explanation given by Roop Rani P.W. 1 for lodging the delayed F.I.R. is that she could not arrange the bullockcart as she was alone and thereafter it became dark. With regard to this explanation of nonavailability of the conveyance there are material contradictions in the statement of P.W. 1 Roop Rani. From the statement of P.W. 1 it appears that Kamta P.W. 2 who is her nephew had one bullockcart and on the date of occurrence the bullockcart was at the residence of Kamta. Further it has been admitted that between Maigalganj and Fatehpur there is Bus service till 8.00 O''clock in the night. With regard to the fact of darkness Roop Rani has admitted in her statement that sunset took place after almost one hour of the incident. In the circumstances it appears that there is inordinate delay in lodging the first information report and thereafter there was a considerable delay in recording the statements of the material witnesses which creates suspicion to the prosecution story.

It has been further submitted that P.W. 1 Roop Rani was present along with other witnesses at the time of the incident as well as at the police station but her statement was not recorded at the police station but was recorded in the evening at her house when the police party led by the Investigating Officer visited the village. No explanation has come to justify the nonrecording of the statement at first appearance and for recording it later on at her residence. On the other hand delay in recording the statements of other eyewitnesses who were easily available also creates suspicion. In this connection learned Counsel for the appellant has placed reliance on the case of Ganesh Dhawan Patel and another v. State of Maharashtra, 1979(16) ACC 11 (Sum.): 1979 SCC (Cri) 1, wherein the Hon''ble Supreme Court has held as under:

Para 15. "As noted by the trial Court, one unusual feature which projects its shadow on the evidence of P.Ws. Welji, Pramila and Kuvarbai and casts a serious doubt about their being eyewitnesses of the occurrence, is the unduedelay on the pan of the Investigating Officer in recording their statements. Although these witnesses were or could be available for examination when the Investigating Officer visited the scene of the occurrence or soon thereafter, their statements under Section 161, Cr. P.C. were recorded on the following day."

Para 29. "Thus, considered in the light of the surrounding circumstances this inordinate delay in registration of the F.I.R. and further delay in recording the statements of the material witnesses, cast a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story."

He has further relied on the case of Ram Ashrit Ram v. State of Bihar. 1981 (18) ACC 31 (Sum.): 1981 SCC (Cri) 324. In para 14 of the above ease the Hon''ble Supreme Court has held that they delay in recording the statements of the eyewitnesses at the earliest opportunity could have given a chance to the complainant party to fabricate false circumstantial evidence at the alleged scene of crime. It does show an attempt on the part of the Investigation" Officer to suppress evidence which would have supported the defence version.

Ummed the son of Basant, according to the F.I.R. was embracing Pancham deceased when the deceased was challenged by the accused appellant. Surprisingly Ummed was neither produced before the trial Court nor his statement was ever recorded by the Investigating Officer. It has also been pointed out that there was no lathi injury on the person of Ummed. It has further been pointed out that at the time of the assault on Pancham deceased one Banwari Chowkidar, a Public servant, was having food at the house of Chandrika accused. Even the accused selected the time when Banwari Chowkidar was present at his residence. It has been contended on behalf of the appellant that it is improbable that in a village where the Chowkidar has influence and exercises his powers as well, the accused will select a lime to attack the deceased when the Chowkidar is present at his (accused''s) residence. As far as this contention is concerned. I am of the considered opinion that it is difficult to read the mind of an accused that under what circumstances he will react and the facts and circumstances force into a particular act or omission. Nonproduction of Chowkidar Banwari leads to various question unanswered. Had it been so the P.W. 1 Smt. Roop Rani, would have easily mentioned this fact in the F.I.R. but for the reasons best known to her she did not disclose this fact in the F.I.R. nor in her statement before the Investigating Officer. Either side could have produced the Chowkidar, but it was not done.

I have no hesitation to appreciate the contention of the learned Counsel for the appellant that nonexamination of the Investigating Officer at the trial without any explanation is a serious lacuna in the case of the prosecution. The prosecution has failed to explain why the Investigating Officer was not produced in support of the prosecution case. In support of this contention the learned Counsel, for the appellant has placed reliance on the case of Ram Dev and another v. State of U.P., 1995 SCC (Cri) 402, wherein it has been held by the Hon''ble Supreme Court that nonexamination of the Investigating Officer of the case at the trial is a serious lacuna in the case resulting in prejudice to the accusedappellant.

It is unfortunate that except 1, Smt. Roopa Rani, all the eyewitnesses were declared hostile in spite of the fact that P. W 2 Kamla was the nephew of the deceased. Learned Counsel for the appellant has also placed reliance on the case of Sakil v. State of U.P J 988 (25) ACC 547, in support of his contention that if the witnesses are declared hostile, confronted with their earlier statement under Section 161, Cr. P.C. and they deny to have made any such statement, then their statement are not believable. Finally only one eyewitness has left i.e. P. W. 1, Smt. Roop Rani. Learned Counsel for the appellant has emphatically submitted that Ummed who was with the deceased at the time of occurrence did not receive any injury. It is not necessary that Ummed should have got some injury because the prosecution case is that only one lathi blow was given to the deceased. According to the case of the prosecution P.W. 1 Roop Rani was an interested witness. According to the defence version the conduct of Smt. Roop Rani P.W.1 is not beyond suspicion and no implicit reliance can be placed on her statement as neither she was present at the spot because has she been present at the spot at least one hour before the sunset, at the time of occurrence, she would have ensured that her husband is taken to hospital without any delay because this would be a natural reaction of the wife but in spite of having all the time and even man power no effort was made to either inform the police or to take the deceased to hospital. Thus, the prosecution has failed to explain the delay. Much emphasis has been given on the day of the occurrence which was Holi day. On the said day there is much more interaction between the people and it is improbable that the accusedappellant would choose such a day for the assault.

In the light of the above discussions a conclusion can be drawn that the prosecution story is full of contradictions and doubts. Further various questions went unanswered on the part of the prosecution e.g. non production of the Investigating Officer that too without explanation, nonproduction of the Chowkidar Banwari and delayed recording of the statement of P.W. 1 Smt. Roop Rani P.W. 1 by the Investigating Officer without any explanation. In the light of the above the view taken by the trial Court cannot prevail and is accordingly liable to be set aside.

The appeal is allowed. The conviction and sentence awarded by the trial Court to the accusedappellant are set aside. The appellant is acquired of the charge under Section 304, (Part II) I.P.C. The bail bonds of the appellant are discharged.