Darshan Singh and Others (In Jail) vs State of U.P.

M. Chaudhary, J.—This is an appeal filed by the accused-Appellants from judgment and order dated 17th of February, 1981, passed by IVth Additional Sessions Judge, Pilibhit in Sessions Trial No. 162 of 1980, State v. Darshan Singh and others Sessions Trial No. 162 of 1980, convicting accused Appellants Darshan Singh, Pal Singh alias Richpal Singh, Baba Singh and Suchcha Singh u/s 302 read with Section 34, I.P.C. and sentencing each of them to imprisonment for life thereunder and accused Surta Singh u/s 201, I.P.C. and sentencing him to four years'' rigorous imprisonment thereunder.

Co-accused Suchcha Singh was reported having died and hence appeal preferred by him or on his behalf stood abated.

Brief facts giving rise to this appeal are that at 12.30 noon on 17th of November, 1979, Gur Dayal Singh lodged an F.I.R. at police station Madho Tanda, district Pilibhit situate at a distance of about 15 kms. from village Paurkhas alleging that criminal litigation was going on between his father Baba Singh on the one hand and Hajara Singh father of Darshan Singh on the other and on that very account, Hajara Singh and his relations were inimical to them ; that at about 9.30 a.m. on 17th of November, 1979, Gur Dayal Singh and his father Baba Singh went to see their harvested paddy crop lying in their field and saw that Darshan Singh and his brother Pal Singh were diverting the flow of water from the canal distributory with shovels towards their field in order to damage their paddy crop lying there ; that then Baba Singh asked them as to why they were diverting the water towards his field and immediately both of them started abusing him shouting that he should be done to death ; that in the meanwhile Surta Singh and Baba Singh sons of Kesar Singh who were cousins of Darshan Singh armed with lathis reached there and all the four started giving shovel and lathi blows to Baba Singh ; that on hearing the hue and cry raised by Gur Dayal Singh and his father Baba Singh, Smt. Jagir Kaur, Gurmej Singh and Sulakkshan Singh rushed to the scene of occurrence and that sustaining the injuries Baba Singh fell down and he rushed for his life leaving the place of occurrence. The police registered a crime against the accused under Sections 307, 323 and 504, I.P.C (Ext. Ka-14) and made an entry regarding registration of the crime in the general diary (Ext. Ka-15).

It appears that at that time station officer, police station Madho Tanda along with the police force were busy in drawing inquest on the dead body of one Sheo Charan Lal at village Gulariya and S.I. Om Prakash Sharma was also present there, that at about 10.00 a.m. Satwant Singh son of victim Baba Singh''s daughter informed the police personnel there that his maternal grandfather was being given shovel and lathi blows by Darshan Singh, Pal Singh, Baba Singh and Suchcha Singh. Immediately on the directions of the station officer police station Madho Tanda, S.I. Om Prakash Sharma along with the police force accompanied with Satwant Singh proceeded to the place of occurrence. On the way as they reached at the culvert of canal at village Sandai they saw a tractor-trolley there and the same was intercepted by the police at the instance of Satwant Singh. That tractor-trolley was being driven by Surta Singh and dead body of Baba Singh was lying on "pual" in the trolley and Darshan Singh, Pal Singh, Suchcha Singh and Baba Singh son of Kesar Singh were sitting therein. The police personnel could apprehend Surta Singh and Darshan Singh after giving beating to them. Then S.I. Om Prakash Sharma taking the tractor trolley in which dead body of Baba Singh son of Sohan Singh was lying and the two persons apprehended went to police station Madho Tanda. Then the crime was altered under Sections 302 and 201, I.P.C. at the police station making Surta Singh also an accused vide GD entry No. 16 at 1.40 p.m. (Ext. Ka-13).

Then S.I. Om Prakash Sharma drew inquest on the dead body of Baba Singh inside the police station, prepared the inquest report (Ext. Ka-2) and other necessary papers (Exts. Ka-3 to Ka-5) and entrusted the dead body in a sealed cover along with necessary papers to constables Uma Shanker and Jagdish Chandra for being taken for its post-mortem. Thereafter the Investigating Officer collected blood stained ''pual'' from the tractor-trolley and prepared its memo (Ext. Ka-6).

Thereafter S.I. Om Prakash Sharma, the Investigating Officer went to the scene of occurrence, inspected the site and prepared its site plan map (Ext. Ka-7). He also collected blood stained and simple earth from the place of occurrence and prepared its memo (Ext. Ka-8). He also recorded statements of the witnesses and did other necessary things.

Autopsy on the dead body of Baba Singh son of Sohan Singh conducted by Dr. R. C. Maheshwari Medical Officer District Jail, Pilibhit, on 18th of November, 1979, at about 1.00 p.m. which revealed the below noted ante-mortem injuries:

(1) Lacerated wound 1 cm. ? 0.5 cm. ? 0.5 cm. on the bridge of nose in the centre. Clotted blood present.

(2) Lacerated wound 4 cm. ? 1 cm. ? bone deep on the left side of head about 7 cm. above the left eye-brow and 10 cm. above the left ear. Left temporal bone fractured.

(3) Lacerated wound 1.5 cm. ? 0.5 cm. ? muscle deep on the left index finger on top. Clotted blood present.

(4) Contusion 2 cm. ? 1 cm. on left upper eyelid.

(5) Contusion 2 cm. ? 1 cm. on right upper eyelid.

(6) Abraded contusion 2 cm. ? 1 cm. on left leg about 5 cm. below the left knee joint. Left tibia bone fractured.

(7) Lacerated wound 2.5 cm. ? 1 cm. ? bone deep anteriorly on right leg in the middle.

(8) Contusion 4 cm. ? 3 cm. on right upper arm laterally in the middle.

On an internal examination haemorrhage was found present between the skull and dura matters and meningeal vessels ruptured. The doctor opined that the death was caused due to shock and haemorrhage as a result of ante-mortem injuries about one day ago.

The Investigating Officer took search of the house of accused Darshan Singh and picked up a spade lying near the fodder cutting machine which was quite big in size and it appeared that on its blade there were blood stains. He prepared recovery memo of the blood stained spade (Ext. Ka-10).

After completing investigating the police submitted charge-sheet against the accused accordingly.

After framing of the charge against the accused the prosecution examined Gur Dayal Singh (P.W. 1), Gurmej Singh (P.W. 2), Smt. Jagir Kaur (P.W. 3) as eye-witnesses of the occurrence. Testimony of the remaining witnesses examined by the prosecution is more or less of formal nature. P.W. 2 constable Jagdish Chandra to whom dead body of Baba Singh along with necessary papers was handed over for being taken for its post-mortem has stated he said fact. P.W. 5 S.I. Om Prakash Sharma who investigated the crime and submitted charge-sheet against the accused has proved the police papers. Dr. R. C. Maheshwari who conducted autopsy on the dead body of Baba Singh on 18th of November, 1979 at 2.30 p.m. has proved the post-mortem report.

The accused pleaded not guilty. Accused Pal Singh, Suchcha Singh and Baba Singh denied the occurrence altogether stating that they were got implicated in the case falsely on account of enmity. Accused Surta Singh and Darshan Singh denied their arrest by the police as alleged by the prosecution. They stated that they were assaulted by deceased Baba Singh and his nephew Puran Singh with sword and ''lathi'' and they hurled lathis in their self-defence. They got their injury reports proved by Dr. R. C. Maheshwari (P.W. 6) who medically examined them in District Jail on 18th of November, 1979.

Medical examination of accused Darshan Singh by Jail Doctor, District Jail Pilibhit on 18th of November, 1979 at 5.17 p.m. revealed below noted injuries:

(1) Abraded contusion 10 cm. ? 12 cm. on the left side of abdomen in lower 2/3rd region, about 11 cms. away from the umbilicus reddish in colour.

(2) Incised wound 4 cm. ? 0.5 cm. ? 0.3 cm. on the back left side about 11 cms. above the left sacroliac joint. Margin regular. Clotted blood present around the wound.

(3) Abraded contusion 14 cms. ? 11 cms. on back left side in lower 1/3 region, reddish in colour.

(4) Contusion 5 cm. ? 4 cm. on the right buttock in the centre. Red in colour.

(5) Contusion 7 cm. ? 3 cm. on the right thigh medially in upper 1/3rd region. Red in colour.

(6) Contusion 5 cm. ? 4 cm. on right side of the abdomen, about 12 cms. away from the umbilicus.

The doctor opined that all the injuries except injury No. 2 were caused by some blunt and hard object and injury No. 2 by sharp weapon, and all the injuries simple in nature and about one and a half days old in duration.

Medical examination of accused Surta Singh at about 5.22 p.m. the same evening revealed below noted injuries on his person:

(1) Contusion 2 cm. ? 1 cm. on the left index finger on the dorsal surface. Red in colour.

(2) Abraded contusion 1 cm. ? 1 cm. on the left hand on the dorsal surface, about 2 cm. above the left little finger.

(3) Contusion 12 cms. ? 11 cms. on back of left in lower 1/3rd region. Red in colour.

(4) Contusion 10 cms. ? 10 cms. on the left buttock. Red in colour.

(5) Contusion 8 cm. ? 6 cm. on the right buttock. Red in colour.

The doctor opined that all the injuries were caused by some blunt and hard object, simple in nature and about one and a half days old in duration.

On an appraisal of the evidence on record and hearing the parties'' counsel the learned Additional Sessions Judge held the accused guilty of the charge levelled against them and convicted them and sentenced each of them as stated above.

We have heard learned Counsel for the Appellants and the learned A.G.A., for the State and gone through the record.

After going through the impugned judgment and record of the case, we are of the view that the learned trial Judge failed to appreciate the testimony of P.W. 1 Gur Dayal Singh and P.W. 3 Smt. Jagir Kaur the eye-witnesses in its true perspective and to advert other fatal infirmities in the evidence relied on by the prosecution.

Testimony of P.W. 1 Gur Dayal Singh, son of the deceased and the first informant does not appear to be reliable and worthy of credence as his conduct is not natural and probable. He deposed that at about 9.30 a.m. the alleged morning he and his father Baba Singh went from their house towards their fields and as they reached at the berm by the side of canal they saw that Darshan Singh and Pal Singh taking shovels diverted the water towards their field and as his father asked them to desist both of them shouted that he should be caught hold and done to death ; that on hearing their shouts Suchcha Singh and his brother Baba Singh armed with lathis emerged from the house of Darshan Singh and came to the scene of occurrence and as they started giving blows to his father he hastened away towards his house and then went to the police station Madho Tanda to lodge an F.I.R. of the occurrence. According to this witness said incident was witnessed by Gurmej Singh, Sulakkshan Singh and Smt. Jagir Kaur. Thus, Gur Dayal Singh was not all alone at the scene of occurrence. Neither of the assailants was armed with any firearm. Sulakkshan Singh was the real brother-in-law of Puran Singh, real nephew of the deceased. But strangely enough Gur Dayal Singh, son of the victim neither raised any hue and cry nor did he try to save his father and rushed away leaving his father to be beaten and done to death by the assailants. In the instant case, the police station was situate at a distance of 15 kms. from the place of occurrence. Had the police station or police outpost been situate at a distance of 2-3 furlongs from the place of occurrence he might be justified so that on being informed the police personnel might reach the spot in time and apprehend the miscreants. It is difficult to digest that young son aged about 38-40 years would remain a mute spectator seeing that his old father was being given blows by the assailants with shovels and lathis and run away leaving his father helpless at that place. Under the circumstances, presence of Gur Dayal Singh at the scene of occurrence appears to be doubtful.

Further, a perusal of the check report goes to show that F.I.R. of the occurrence was lodged by Gur Dayal Singh at police station Madho Tanda at 12.30 noon the same day. P.W. 1 Gur Dayal Singh stated that after returning from the police station at about 3.00 p.m. he learnt that the tractor-trolley in which dead body of his father was being taken by the miscreants was intercepted and two of them were arrested by the police and that then he again went to the police station and reached there at about 4 or 4.30 p.m., stayed at the police station also in the night and next day after post-mortem he took the dead body of his father from Pilibhit to his village. He deposed that his statement was recorded by the Investigating Officer at his house at about 3.00 p.m. the very day the incident took place. However, P.W. 5 S.I. Om Prakash Sharma, the Investigating Officer who drew inquest on the dead body of Baba Singh deposed that the day after completing the inquest proceedings he proceeded from the police station to the scene of occurrence at 4.30 p.m. and reached there at 5.30 p.m. and Gur Dayal Singh met him at his house. But as mentioned above P.W. 1 Gur Dayal Singh stated that at about 3.00 p.m. he learnt in the village that the police recovered dead body of his father in a tractor-trolley and arrested two of the culprits he again went to the police station and reached there at about 4-4.30 p.m. that very evening and then stayed at the police station and next day went along with the dead body to Pilibhit. A perusal of the inquest report goes to show that inquest proceedings were concluded that very day at 3.40 p.m. Thus, it is unintelligible and incomprehensible as to how the statement of Gur Dayal Singh could be recorded by the Investigating Officer at his house in the evening that very day. P.W. 5 S.I. Om Prakash Sharma further deposed that after reaching the place of occurrence and recording statement of Gur Dayal Singh he inspected the site and prepared its site plan map at the pointing out of Gur Dayal Singh. But in view of the above statement of Gur Dayal Singh it is unintelligible and unfathomable as to how the Investigating Officer could prepare the site plan of the place of occurrence at the pointing out of Gur Dayal Singh, the first informant. A perusal of the site plan map goes to show that it is not shown therein as to from which point Gur Dayal Singh had witnessed the assault at his father nor did he show the direction in which he hastened away. In the face of these inconsistencies and incongruities reasonable doubt arises as to the reliability of the evidence of this witness Gur Dayal Singh.

Testimony of P.W. 2 Gurmej Singh has been rightly discarded by the court below. Admittedly this witness Gurmej Singh is resident of Newada Shyampur situate within the limits of police station Jahanabad. He stated that he was residing at Pilibhit city since one year prior to the said occurrence, that the alleged morning he was going to Raipur for purchasing straw (bhoosa), that at about 9.30 a.m. as he accompanied with Sulakkshan Singh reached near village Paurkhas and was proceeding on the berm by the canal side he saw Darshan Singh and Pal Singh giving blows to Baba Singh with shovels and Suchcha Singh and his brother Baba Singh with lathis and sustaining the injuries Baba Singh fell down and then all the four assailants took away the dead body towards the house of Darshan Singh and that thereafter he and Sulakkshan Singh proceeded for Raipur. But he could not withstand the cross-examination as he stated in his cross-examination that at the time of incident he was at a distance of about one and a half furlongs from the place of occurrence and that thereafter he saw Darshan Singh and Pal Singh giving shovel blows to Baba Singh and each of them gave one or two blows from backside of the shovel to Baba Singh hitting him at his head. However, a perusal of the post-mortem report goes to show that the doctor found only one injury on the head of the deceased. Looking to the size of the head injury (lacerated wound 4 cm. 1 cm. ? bone deep) we are of the view that it could not be caused from the back side of shovel blade. Further he stated that he had visited the house of Baba Singh deceased at Gajraula Khurd earlier. Thus, admittedly he was acquainted with Baba Singh, the victim since before. Sulakkshan Singh who was accompanying this witness Gurmej Singh happened to be the real brother-in-law of the victim''s real nephew Pooran Singh. It is highly improbable and inconceivable that close relation of the victim and the person acquainted with the victim after seeing that Baba Singh was done to death by the assailants and the dead body also taken up by them towards the house of accused Darshan Singh would leave that place silently for their destination. Both of them did not raise any hue and cry and kept standing there as mute spectators. Neither of them even cared to inform at the house of the deceased that his dead body was taken over by the assailants. This conduct of this witness is highly improbable and unnatural. In view of these circumstances presence of P.W. 2 Gurmej Singh at the place of occurrence becomes all the more doubtful.

Regarding the testimony of P.W. 3 Smt. Jagir Kaur, she deposed that at about 8-9 a.m. the alleged morning she had gone to pass faeces in her field towards the canal and after attending the call of nature she was going towards the canal and as she reached the canal side she heard some commotion and saw Suchcha Singh and Baba Singh giving lathi blows to Baba Singh and Darshan Singh and Pal Singh shovel blows and that thereafter they took up the dead body of Baba Singh. She admitted in her cross-examination that prosecution was launched against her husband and four sons u/s 307, I.P.C. at the instance of Hajara Singh, father of accused Darshan Singh. She further admitted that Dilip Singh brother of accused Baba Singh had lodged a report with the police against her son Baldev Singh for burgling his house. Apparently she must be nursing grudge against the accused. P.W. 1 Gurdayal Singh stated that Jhala of Jagir Kaur was at a distance of about 250-300 yards from the place of occurrence. It appears to be correct as admittedly there are fields of Pooran Singh and Surjit Singh in between her fields and that of Gurdayal Singh. A perusal of the site plan map goes to show that the incident took place at the berm in the immediate west of the canal distributory in between the fields of Gurdayal Singh and Darshan Singh. It is difficult to believe that Jagir Kaur an old lady aged about 60 years could visualise the incident and recognise the assailants from a distance of more than 200 yards. Further, P.W. 5 S.I. Om Prakash Sharma stated that after completing inquest proceedings he went to the place of occurrence and reached there at about 5.30 p.m. that very day. He visited the place of occurrence, inspected the site and prepared its site plan map. However, he recorded statement of Jagir Kaur (P.W. 3) next morning at about 8.00 a.m. Admittedly on reaching the village he stayed there till next day. No plausible and convincing explanation has been offered by the Investigating Officer as to why he could not record statement of Jagir Kaur residing at a short distance from the place of occurrence that very evening when he inspected the place of occurrence. Most probably it took time to make her state as to how Baba Singh was attacked and by whom and with what weapons. Thus, P.W. 3 Jagir Kaur is no better than a got up witness.

Further, ocular testimony of the eye-witnesses is irreconcilably discrepant with the medical evidence. All the three eye-witnesses deposed that Baba Singh, the victim was assaulted by the assailants with shovels and lathis. However looking to the size and seat of ante-mortem injuries Nos. 1, 4 and 5 found on the dead body we are afraid if these injuries could be inflicted with any of the weapons assigned to the culprits. According to the prosecution case out of four assailants, two gave shovel blows to Baba Singh but no incised wound was found on the dead body.

Further, P.W. 1 Gurdayal Singh deposed that his sister''s son Satwant Singh used to reside with him in his house and at the time of the incident he saw Satwant Singh near his house. P.W. 5 S.I. Om Prakash Sharma, the Investigating Officer deposed that at about 10.00 a.m. the day on which Baba Singh was murdered he was present with the station officer at village Gulariya as he was drawing inquest proceedings on the dead body of Shiv Charan Lal that Satwant Singh informed the police personnel there that his maternal grandfather Baba Singh was being given blows by Darshan Singh, Pal Singh, Suchcha Singh and Baba Singh with shovels and lathis and that then on the directions of the station officer he along with the police personnel accompanied by Satwant Singh proceeded to the place of occurrence and on the way intercepted tractor-trolley driven by Surta Singh at the instance of Satwant Singh. It is unintelligible and unfathomable as to how Satwant Singh could perceive that the police personnel were present at village Gulariya and he should rush to them for help. The prosecution did not examine Satwant Singh so that he could explain as to how he could perceive that the police personnel were present at village Gulariya and he should go there to contact the police. But this material witness was not examined for the reasons best known to the prosecution.

The investigation too is not just and fair. After intercepting the tractor-trolley driven by Surta Singh in which dead body of Baba Singh was lying and arresting two of the miscreants S.I. Om Prakash Sharma along with the tractor-trolley taking the two persons arrested went to the police station where the crime was altered under Sections 302 and 201, I.P.C. arraying Surta Singh also an accused involved in the crime vide GD entry No. 16 at 13.40 p.m. the same noon. He himself mentioned all the details in the general diary in his hand. He also proved the copy of the said GD entry (Ext. Ka-13). However, a perusal of this GD entry goes to show that S.I. Om Prakash Sharma did not mention the time of proceeding from Gulariya leaving the space for mentioning the same subsequently. Probably by that time he was not sure how the time was to be adjusted assimilating all the situations. He did not prepare any recovery memo of the dead body of Baba Singh at the place of recovery nor did he prepare any site plan map of the place where he intercepted the tractor-trolley in which the dead body of Baba Singh was laid. Satwant Singh accompanied the Investigating Officer to the police station but he did not record the statement of Satwant Singh at the police station itself that very day. He recorded the statement of Satwant Singh next day. All this smacks of something foul.

Admittedly the Investigating Officer did not send blood stained ''pual'', blood stained and simple earth, blood stained shovel allegedly recovered from the house of Darshan Singh and blood stained clothes of the deceased to Forensic Science Laboratory for serologist''s opinion if they contained human blood and if so of the same blood group. Had these articles been sent for the serologist''s opinion and had these articles been found containing human blood of the same blood group it would have been a valuable piece of evidence in support of the prosecution. But unfortunately the needful was not done.

Alleged recovery of the big shovel by the Investigating Officer lying near fodder cutting machine in the house of Darshan Singh is of no avail to the prosecution for two reasons: (i) the shovel was not sent for the serologist''s opinion if it contained human blood and if so of which blood group, and (ii) it was not shown to the doctor who conducted autopsy on the dead body at the time of recording his statement in the Court for his opinion if any of the ante mortem injuries found on the dead body could be caused with that very shovel.

The injuries found on the person of accused Darshan Singh and Surta Singh are not of a serious nature. Further, it is also doubtful if the accused abovenamed sustained injuries in the said incident as P.W. 5 S.I. Om Prakash Sharma stated that both these accused were arrested by him by giving beating to them after intercepting the tractor-trolley driven by Surta Singh. Hence the defence version that they hurled lathis on Baba Singh and Pooran Singh in their self defence is repelled.

In view of the doubtful features and other infirmities in the prosecution case and evidence as discussed above, we are of the view that the learned trial Judge failed to take note of certain telling factors emerging from the evidence on record. These are so many imponderables and improbabilities in the prosecution case and evidence that it is not safe to hold the accused guilty of the charge levelled against them. The accused are therefore given benefit of doubt and they are entitled to acquittal.

The appeal is allowed and the impugned judgment and order convicting Appellants Darshan Singh, Pal Singh alias Richchpal Singh and Baba Singh u/s 302 read with Section 34, I.P.C. and sentencing each of them to imprisonment for life thereunder and convicting Appellant Surta Singh u/s 201, I.P.C. and sentencing him to four years'' rigorous imprisonment thereunder are hereby set aside. The accused Appellants are acquitted of the charge levelled against them. They are on bail. Their bail bonds are hereby discharged.

Certified copy of the judgment along with record of the case be transmitted to the court below for necessary compliance under intimation to this Court within two months from the date of receipt.