Dhanpat and Ors vs State of U.P.

Madan Mohan Lal, J.

This is an appeal against the judgment and order dated 1631978 passed by Sri M. N. Asthana, the then II Addl. Sessions Judge, Banda by which he has convicted Dhanpat, Jugdeo, Pancha and Ram Pal appellants under Sections, 147, 364 and 302 IPC and has sentenced each of them to undergo one year R.I. 7st years R.I. and life imprisonment respectively thereunder and has convicted Birja and Yadu Nandan under Sections 148, 364 and 302 IPC and has sentenced each of them to undergo 1 years R.I. 7 years R.I. and imprisonment for life respectively thereunder.

Dhanpat, Jagdeo and Birja appellants are real brothers, Ram Pal and

Yadu Nandan appellats arc their nephews, and Pancha appellant is their cousin.

On account of a consolidation case etc., there was an old enmity between

Jagmohan deceased on one hand and Dhanpat and Jagdeo appellants on the

other.

According to the case of the prosecution on 25101974, at about sen

set, when Jagmohan deceased carrying a bundle of grass on his head was com inn

from his residential house to his cattle house in village Miyan Brauli, P. S.

Babcrue, district Banda, Dhanpat appellant, armed with the ''lathi'' was found

standing infront of his own cattle house, which fell in the way. On seeing

Jagmohan deceased Dhanpat appellant shouted that the enemy has come by chance

(T fti & 3?T n?T) and that he should be caught hold of whereupon Jagdeo,

Pancha and Ram Pal appellants, carrying ''lathi and Birja and Yadunandan,

carrying barchcha came out of the cattle house. They caught hold of Jagmohan

deceased and alter causing him some injuries took him inside the cattle house.

After some time all these six appellants took away dragging Jagmohan deceased

from the cattle house towards the Jungle in the west. A noise was raised by

Jagmohan deceased which attracted his cousin Shiv Mohan informant, his wife

Smt. Devratiya, his children Jai Karan, Ram Karan and Smt. Shiv Dulari and

others to the place of occurrence. They tried to save Jagmohan deceased but due

to the threats of the appellants they could not do the same.

Shiv Mohan went to P. S. Baberue, situate at a distance of live miles,

where he lodged the report of the incident on the same day at 11.30p.m. The

l.O. came to the place of occurrence on the same night when the informant gave

an additional report about the fact that at the time of the incident Jagmohan

deceased was carrying a gun, a belt of cartridges and a sum of Rs. 50 etc., which

was looted by the appellants when Jagmohan deceased was taken by them in the

cattle house.

In support of its case the prosecution examined ten witnesses. P.W. 1 Shiv Mohan informant, P. W. 2 Smt. Devratiya P. W. 3 Jai Karan and P. W, 4 Smt. . Shiv Dulari are the eye witnesses. P.W. 5 Uma Shanker Pandey was the Head Moharrir at P. S. Baberu. He deposed that on 25101974 at 11.30 p.m. Shiv Mohan had come to the police station to lodge the report of the incident on which he had registered this case under Sections 147, 148, 323, 342 and 364 1PC. He further deposed that on 261074 on the return of the I. O. from the place of occurrence, he had, at 8.20 a.m. registered this case under Sections 302, 201 and 404 IPC as well. P. W. 6 Head Moharrir Ati Raj Singh was a formal witness. P. W. 7 Man Mohan Tiwari had originally sighted the dead body of Jagmohan. He gave information of the same to the I. O. who then made the recovery of the said dead body in presence of P.W. 7 Man Mohan Tiwari. P.W. 9 Shyam Sunder Nigam was an Arms Clerk. He deposed that a licence for possessing a gun had been issued in the name of Jagmohan deceased.

The post mortem examination of the dead body of Jagmohan was conducted by Dr. S. C. Pandey, the then Dy. C. M. O. Banda, on 271074 at 11.45 a.m. He found the following antemortem injuries on the said dead body :

Lacerated wound 5 cm x 1� cm x bone deep on left side of head about 9 cm above left ear.

Lacerated wound 7 cm x 1.5 cm X bone deep on right side of head

about 8 cm above right ear.

Contusion 8 cm X S cm top and back of head.

Contusion 8 cm x 6 cm ground right eye and on right cheek.

Maxilla bone broken into several pieces on right side, antemortern.

Punctured wound 5 cm X 5 cm X muscle cavity deep at the junction

of body part cartilaginous part of bone Nasalseptiurn and cartilagionus

is broken.

Punctured wound 2 cm x 5 cm X oral cavity deep about 1 cm

below right angle of mouth.

. Contused wound 1 cm x cm on the lower lip.

Punctured wound 1 cm x 0.5 cm x 2 cm on left cheek 3 cm from outer angle of left eye of 5''0 clock position to it.

Contusion 5 cm x 5 cm around left ear an 11 cm X l cm x through

and through its width on the lower part of left ear.

Left maxilla broken in several pieces.

Left lower jaw broken near mandibular epicendyle.

Contusion 7 cm x 3 cm top of right shoulder.

Contusion 5.5 cm x 3 cm outer aspect of right.

Contusion 3 cm x 2 cm outer aspect of right elbow.

Contusion 6 cm x 3 cm middle of back of right forearm.

Simple fracture of both bones of right forearm beneath No. 16.

Contusion 6 cm x 6 cm back of right hand. The metacarpus of

middle fingle of right hand has simple fracture.

Abraded area 36 cm X 32 cm covering whole of back both halves and both shoulders.

Contusion 14 cm x 6 cm left buttock.

Multiple contusion in an area of 19 cm x 6 cm back of outer side of

left arm.

Contusion 10 x 5 back of left forearm lower third.

Abrasion 1 cm x 1 cm front of left wrist. injuries

On internal examination the doctor found fracture of left sphenoid bone. There was also fracture on left middle cranial fossa. In the stomach there was about 4 ounces of semidigested food. According to the doctor the death had occurred due to coma and haemorrhage, as a result of aforesaid anternortem injuries.

The investigation of this case was made by Deo Dutta Dixit S 0 This case was registered in his presence. He started investigation at once '' He immediately left for the place of occurrence where he searched for the accused persons. On 26101974 at about 8.30 a.m. when the I.O was returning after searching for the accused persons'' he got an information that the dead Jagmohan was lying at the Dera'' one of Man Mohan, where he found the sad dead body. Retook the dead body in possession and prepared the panchati nama and other formal documents thereof. He also found blood at the different places, including ''rasta in front of the door of the house of Dhanpat appellant He took samples of bloodstained and unstained earth. The I. O recorded the statements of the witnesses On 18111974 the I.O. arrested one Laxmi and recovered the aforesaid looted gun of Jagmohan deceased from his possession.

The appellants in their statements denied the case of the

prosecution. They further stated that they have been falsely implicated in this due to enmity. The appellants did not examine any witness in defence.

11 The learned trial court did not believe the case of the prosecution, against Laxmi who had been charges under Section 412, IPC and acquitted n of the same. He also found that the charge under Section 395 IPC had not been proved against the appellants. He however found appellants guilty under Sections 147, 148, 364 and 302 and has accordingly convicted and sentenced them as aforesaid. Aggrieved by the same the appellants have filed this appeal.

We have heard learned counsel for the appellants and the State and have perused the record carefully.

As already observed the prosecution took up a case and also produced evidence to the effect that just before the sunset on 251074 when Jagmohan deceased was passing m front of the cattle house of Dhanpat appellant, all the six appellants caught hold of him and after giving him some beating took him inside the cattle house and then after some time they took him dragging out of the said cattle house in the jungle towards the west of the village, It is also stated that this incident was seen by own wife, two sons, one daughter and a cousin of the deceased, besides Inder Ahir etc. They had also tried to save deceased but could not do the same due to the threats advanced by the In our view when the own family members had seen the appellants carrying away Jagmohan towards west of the village, then most normal course taken by them should have been to take all possible steps to rescue Jagmohan P W 4 Smt Shiv Dulari daughter of the deceased, has admitted in her evidence that in her village Phool Chand, Baijnath and Kamta had licensed guns with them and after the aforesaid incident none of these persons was contracted for help We are of the opinion that even when the said licence holders were not approached for help then the next best thing, the family members could do was to rush for police help and to save Jagmohan from the clutches of the appellants with the help of the police. The record show. hat the same was also not done.

14 This incident took place on 25101974 just before the sunset On that date sun had set at :.27 p.m. P.W. 1 Slav Mohan informant has admitted in his evidence that the distance between the place of occurrence and police station was live miles and that out of the same there was a ''kachcha1 road for 23 furlongs only and the remaining distance was covered by metal road. In spite of the same the report of the incident was lodged at P. S. at 11.30 p.m. i e, after an interval of six hours. In our view the aforesaid distance of five miles could have easily been covered even on foot in about an hour. The fact that the informant and the other family members of the deceased neither approached the licenceholders of the village nor immediately rushed to the police station shows that they had probably not seen the appellants catching Jagmohan deceased or taking him away dragging.

There can be no dispute about the fact that the F.I.R. in this case was

not lodged promptly. When the F.I.R. is not lodged promptly then it becomes the duty of the prosecution to explain the delay. The prosecution in this case neither in the F.I.R. nor in the evidence tried to explain as to how and why the F.I.R.. was not lodged in time.

F. I. R. in a criminal case is an extremely vital and valuable piece of

evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the stand point f the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present al i lie place of occurrence. Delay in lodging the F.I.R.. quite often results in embellishment which is a creature of after thought. On account of delay, the ort not only gets bereft of the advantage of spontaneity danger creeps in of introduction of coloured vision, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay and the lodging of the F.I.R. should be satisfactorily explained. See AIR 1973 SC 501 Thullia Kali v. State of Tamil Nadu. At the risk of repetition we may suite that when the F.I.R. was lodged with delay and the delay in lodging the K I.R. had not been explained, it would be unsafe to base conviction of the appellants upon the evidence produced by the prosecution.

There is another material improvement made in this case which shake

our confidence in the truthfulness of the case set up by the prosecution. Although

there was not a word in the F.I.R. that at the time of the incident Jagmohan

deceased was carrying any gun or ammunition yet at the stage of the evidence the

prosecution introduced the case that Jagmohan deceased was carrying a gun and

a belt of cartridges, besides a cash of Rs. 50 which were looted by the appellants.

The said gun was said to have been recovered from one Laxmi who was charged

under Section 412, l.P.C. Learned trial Court found the case against Laxmi under

Section 412, l.P.C. as false ''inter alia on the ground that after the death of Jug

inohan the said gun was found to have been deposited in the Maikhaha, Bancla.

The learned trial court also found that the charge under Section 395, I. P.C. levelled

against the appellants was not proved and accordingly they were acquitted of the

same. Furthermore it may be observed that after the F.I.R. had been lodged and

investigation had started the informant had given an additional report Ex. Ka. 1

in the I.O. in the village on 25101974 to the effect that Jagmohan deceased was

carrying a gun, a belt of cartridges and a sum of Rs. 50 which he has not been

able to get. When the said wordings are read in the context of the statement

made by P.W. 2 Smt. Devratiya in his crossexamination that on the second day,

the I.O. had searched for the gun in her house and that when the gun was not

traceable, the I.O. got the report of the same written from her son, it becomes

clear that none had seen at the time of the incident that Jagmohan was carrying any arm or ammunition or that when Jagmohan deceased was taken out of the cattle house by the appellants, he was not carrying the said gun and ammunition, meaning thereby that the gun and ammunition had been looted in the cattle house itself. This discrepancy and contradiction as well leads to the inference that the aforesaid eyewitnesses examined in this case had not at all seen the incident.

All the eyewitnesses examined in this case are the kith and kin of the

deceased. P.W. 1, Shiv Mohan informant is the cousin, P.W. 2 Smt. Devratiya is

the wife, P.W. 3 Jai Karan is the son and P.WV4, Smt. Shiv Duiari is the daughter

of Jagmohan deceased. P.W. 4 Smt. Shiv Duiari was married in another village at

the time of the incident. According to her she was not interrogated by the I.O.

All these four eyewitnesses would not have seen this incident had they been

present at their house P.W. 1 Shiv Mohan has stated that as per chance he was

standing at the door of one Ram Bhawan when he saw this incident. It does not

stand to reason as to why all the family members of Jagmohan deceased, i.e., his

wife, two sons and the daughter, had come out from their residential house to the

cattle house. It is not a case where no independent witness was present. It was

stated in the F.I.R. that this incident was seen by Inder Ahir etc. but none of

those persons had been examined in this case. In view of the aforesaid short

comings and discrepancies in the case of the prosecution, it shall not be safe to

rely only upon the evidence of these interested and inimical witnesses. It may not

be out of place to state here that according to the prosecution the appellants had

committed this crime due to enmity. Enmity is a doubleedged weapon. Whereas

persons can commit crime due to enmity. It is also equally possible that due to

enmity persons may be falsely implicated in a case. We are of the view that in

this case it shall not be safe to base conviction of the appellants upon the evidence

of the aforesaid family members of the deceased, to the exclusion of the indepen

dent witnesses who were also present.

To sum up, therefore, we are of the opinion that the prosecution has

failed to make out its case against the appellants or any of the appellants beyond

reasonable doubt.

Accordingly this appeal is allowed and the convictions and sentences

of Dhanpat, Jagdeo, Pancha and Ram Pal appellants under Sections 147, 364 and

302, I.P.C. and convictions and sentences of Birja and Yadu Nandau appellants

under Sections 148, 364 and 302, l.P.C. are set aside.

The appellants are on bail. They need not surrender to their bail

bonds, which hereby stand discharged.