Faujdar Singh and Another (In Jail) vs State of U.P.

M. Chaudhary, J.—This is an appeal from judgment and order dated 9th of June, 1981, passed by Vth Additional Sessions Judge, Etah in Sessions Trial No. 35 of 1981, State v. Faujdar Singh and another Sessions Trial No. 35 of 1981, convicting the accused Appellants u/s 302, I.P.C. and sentencing each of them for imprisonment for life thereunder.

Brief facts giving rise to this appeal are that at about 9.15 a.m. on 8th of December, 1979, Chandra Pal lodged an F.I.R. at police station Sidhpura, district Etah, alleging that during the night between 7th and 8th of December, 1979 he was staying at the house of his brother Siya Ram at Ram Nagar within the limits of police station Sidhpura district Etah as he had gone there to impress upon his brother Siya Ram that he should not transfer his landed property in favour of Shanti Devi wife of Faujdar Singh. Since Siya Ram had developed illicit intimacy with Shanti Devi he had purchased land measuring nine bighas in consideration of Rs. 18,000 in her name. During the fateful night Chandra Pal along with his cousin Babu Ram and sons Ram Kishore and Hari Om and one Het Singh and Rajpal Singh were sitting in the ''baithak'' of Siya Ram trying to convince him that keeping the interest of his brother and nephews in his mind he should not waste his property by transferring the same in the name of Shanti Devi. At that time a glowing lantern was kept there and one lantern was also hanging by the side of the wall in the verandah diffusing sufficient light. At about 10.00 p.m. Faujdar Singh along with his son-in-law Abhilakh Singh armed with country made pistols reached there shouting that he had brought dishonour to his family and now they will see how he would not transfer his land evoking Siya Ram to open the door. And as Siya Ram opened the door Faujdar Singh fired a shot at him causing injuries to him. Immediately Siya Ram stepped forward to catch hold of Faujdar Singh and in the meanwhile Abhilakh Singh fired a shot at Siya Ram hitting him at his abdomen and sustaining the fatal injuries Siya Ram fell down at the chabutara of Babu Ram and then the miscreants took to her heels. Sustaining the fatal injuries Siya Ram died on the spot instantaneously. The police registered a crime against the accused accordingly on the basis of written report handed over by Chandra Pal at the police station (Ext. Ka-1) and made relevant entry in the general diary regarding thereto (Ext. Ka-3 and Ka-4).

S.I. Nain Singh Sharma to whom investigation of the crime was entrusted went at the scene of occurrence and drew inquest proceedings on the dead body of Siya Ram and prepared the inquest report (Ext. Ka-5) and other necessary papers (Exts. Ka-6 to Ka-8). Then he handed over the dead body in sealed cover along with necessary papers to the constables for being taken for its post-mortem. He also inspected the site of occurrence and prepared its site plan map (Ext. Ka-11). Then he collected blood-stained and simple earth, picked up pellets, wads etc. lying on the spot and sealed them in separate packets and prepared their memos (Exts. Ka-9 and Ka-10). The Investigating Officer also recorded statements of the witnesses and did other necessary things.

Autopsy conducted on the dead body of Siya Ram by Dr. Daya Shanker, Medical Officer District Hospital Etah, on 9th of December, 1979 at about 3.00 p.m. revealed ante-mortem firearm wound of entry 2 cm. ? 2 cm. ? cavity deep on left side of abdomen 4 cms. away and at 2 O''clock position to umbilicus and loops of intestines protruding out. Besides it, the post-mortem also revealed two ante-mortem firearm wounds of entry on right nipple each measuring 0.5 cm. ? 0.5 cm. ? skin deep and an ante-mortem firearm wound of entry on left wrist. On an internal examination peritoneum was found punctured and haematoma present in the layers of abdominal wall. The stomach contained semi-digested food about 6 ozs. Small intestines were found grossly lacerated at places. The doctor removed two wads and 13 pallets from inside the wounds. The doctor opined that the death was caused as a result of shock and haemorrhage on account of ante-mortem injuries about one and a half day ago.

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

The accused pleaded not guilty denying the alleged occurrence altogether and stating that they were got implicated in the case falsely on account of enmity as accused Faujdar Singh had lodged an F.I.R. at the police station that Chandra Pal and his son Ram Kishore had stolen his she-buffalo.

After framing of the charge against the accused the prosecution examined Chandra Pal (P.W. 1) and Ram Kishore (P.W. 3) as eye-witnesses of the occurrence. P.W. 2 constable Ram Saran is one of the two constables to whom dead body of Siya Ram in a sealed cover along with necessary papers was handed over to be taken to mortuary for its post-mortem. P.W. 4 Dr. Daya Shankar Medical Officer District Hospital, Etah, who conducted autopsy on the dead body of Siya Ram has proved the post-mortem report stating that the ante-mortem injuries found on the dead body of Siya Ram were sufficient to cause his death in ordinary course. P.W. 5 S.I. Nain Singh Sharma who investigated the crime proved the police papers.

On an appraisal of the parties'' evidence and after hearing the parties'' counsel the learned Additional Sessions Judge recorded conviction of the accused sentencing each of them to imprisonment for life thereunder.

Feeling aggrieved by the impugned judgment and order, the accused preferred this appeal for redress.

None appeared for the Appellants though represented on record by Shri P. C. Sharma and Ashok Kumar Singh, Advocates. We heard the learned A.G.A. The appeal is being decided on merits.

A perusal of the record goes to show that relying upon the testimony of two eye-witnesses, namely, P.W. 1 Chandra Pal and P.W. 3 Ram Kishore, the learned Additional Sessions Judge recorded conviction of the accused. However, we are unable to find ourselves in agreement with the findings recorded by the court below for the following reasons:

A perusal of the impugned judgment and the evidence adduced by the prosecution goes to show that there are material variations in the statements of the two eye-witnesses, namely, P.W. 1 Chandra Pal, brother of the deceased and his son Ram Kishore (P.W. 3) going to the very root of prosecution case rendering their evidence unworthy of credence. P.W. 3 Ram Kishore, nephew of the deceased stated that his ''tau'' Siya Ram had illicit intimacy with Shanti Devi wife of Faujdar Singh and for the last two years prior to the occurrence, he had been giving all his earnings to her, that a few months ago he got some land purchased in her name from someone by paying the consideration therefore himself, that Faujdar Singh was insisting upon Siya Ram to transfer his land in the name of Shanti Devi as by keeping illicit relations with her, he had brought disgrace to his family and that, therefore, he asked his father Chandra Pal who resided at Samothi to come there and make his brother Siya Ram understand the situation. P.W. 1 Chandra Pal stated that at the time of occurrence, he used to reside at Samothi and his brother Siya Ram at Ram Nagar and that his son Ram Kishore also used to reside at Ram Nagar in order to look after his cultivation. He further stated that his brother Siya Ram got nine bighas of land purchased from Ramveer in the name of Shanti Devi for a consideration of Rs. 18,000 paid by him and that thereafter Faujdar Singh and his son-in-law Abhilakh Singh started pressurizing Siya Ram to transfer his land in the name of Shanti Devi as by keeping illicit relations with her, he had brought dishonour to his family and that the fateful day, he had gone to Ram Nagar to talk to his brother thereabout. He sated that Siya Ram paid Rs. 8,000 to Ramveer before execution of the sale deed and Rs. 10,000 were paid by him to Ramveer in the office of the Sub-Registrar at the time of the execution and registration of the sale-deed. But he could not withstand his cross-examination as he admitted in his cross-examination that sale deed of nine bighas of land was not executed by Ramveer in favour of Shanti Devi in his presence nor it was scribed in his presence. He could not tell as to who were the witnesses of the sale deed or as to when the sale deed was executed and registered. However, P.W. 3 Ram Kishore stated in his cross-examination that when he learnt that his ''tau'' Siya Ram purchased some land in the name of Shanti Devi, he informed his father to come to Ram Nagar and as his father came to him and asked him as to when the sale deed was executed and for how much consideration, he told his father that ''tau'' purchased the land in the name of Shanti Devi for Rs. 18,000 and that then his father replied that he had no knowledge thereabout. Further, P.W. 1 Chandra Pal brother of the deceased stated that at about 9-10 p.m. the alleged night, they all were sitting in the ''baithak'' of Siya Ram conversing together that Faujdar Singh and Abhilakh Singh armed with country made pistols reached there, that he had seen them coming towards them from the window in the ''baithak'' when they were at a distance of some ten paces therefrom and that both the miscreants were coming shouting that they would kill him and on reaching at the door of the ''baithak'', they asked to open the door whereas P.W. 3 Ram Kishore stated that there was a window in the baithak, but its door leaves were closed and while they were conferencing together sitting in the ''baithak'', they were not in a position to see as to what was going on outside and that both the accused reached there quietly and on reaching at the door, they evoked Siya Ram to open the door. These inconsistent and incongruent statements of both these eye-witnesses go to show that they are not truthful and straightforward witnesses, and hence implicit reliance cannot be placed on their interested testimony. Furthermore, a perusal of the check report and G.D. Entry regarding registration of the crime (Exts. Ka-3 and Ka-4) goes to show that Chandra Pal himself handed over written report of the occurrence at the police station, but this witness Chandra Pal (P.W. 1) stated in his cross-examination that in the morning, he got the report of his brother''s murder scribed by his son Ram Kishore and sent him to the police station to hand over the report to the police there. It again goes to show that P.W. 1 Chandra Pal is not a truthful and straightforward witness.

Secondly, motive imputed for the alleged crime that accused Faujdar Singh being apprehensive that Siya Ram may not transfer his land in favour of Shanti Devi made murderous assault at Siya Ram does not appeal to our minds. Because the accused were not going to be benefited by eliminating Siya Ram. Rather landed property of Siya Ram would have devolved upon Chandra Pal on his death. Further, in absence of any convincing evidence, it does not inspire confidence that a married lady aged about 45 years or so (accused Faujdar Singh gave his age as 50 years and accused Abhilakh Singh as 27 years in their statements recorded u/s 313 of the Code of Criminal Procedure) having young married daughter would have entangled with an old man aged about 60 years (age of Siya Ram as stated by P.W. 1 Chandra Pal).

Thirdly, according to the prosecution case at about 10 p.m. the fateful night when Siya Ram was assaulted by Faujdar Singh and Abhilakh Singh, one Het Singh, Raj Pal, Chandra Pal Thakur and Babu Singh were present there as they were conversing together in the ''baithak'', but prosecution did not examine any of them as an independent witness in its support. Babu Singh who happens to be the cousin of Chandra Pal (P.W. 1) did not come forward to support the prosecution case probably because it was not the truth.

Fourthly, F.I.R. of the occurrence was lodged at the police station with much delay as the alleged offence took place on 7th of December, 1979 at about 10 p.m. and the F.I.R. of the occurrence was lodged at the police station Sidhpura next day i.e., 8th of December, 1979 at about 9.15 a.m. whereas the police station is situate at a distance of only five miles from the place of occurrence. P.W. 1 stated that because of fear he did not go to the police station to lodge F.I.R. soon after the murder. The explanation offered for not lodging F.I.R. of the occurrence at the police station soon after the incident does not appear to be plausible and convincing, as the occurrence did not take place at some dead hour of night. Moreover, Chandra Pal brother of the deceased was not all alone and according to P.W. 1 Chandra Pal himself one Het Ram, Raj Pal Singh and Chandra Pal Thakur were also present besides his cousin Babu Ram and two sons Ram Kishore and Hari Om at that time. Unexplained delay of some 9-10 hours in lodging the F.I.R. is fatal to the prosecution case and thus the F.I.R. loses all its corroborative value.

Lastly, from a perusal of Form No. 13 (Ext. Ka-7) which is usually known as ''chhitthi ravangi'' time of sending dead body to the police Head Quarters has not been mentioned in the relevant column and on its back, time of reaching the dead body at the police Head Quarters and the time of sending dead body to the mortuary therefrom has not been mentioned distinctly in the column meant therefore which goes to show that F.I.R. was not lodged at the police station at the time it purports to be. Further, if the F.I.R. was lodged at the police station at about 9.15 a.m. and inquest proceedings concluded and dead body in a sealed cover along with necessary papers handed over to the constables for being taken for its post-mortem at 12.30 noon, it should have reached the police headquarters situate at the distance of 35 kms. the same afternoon. But a perusal of the document aforesaid (Ext. Ka-7) goes to show that the dead body reached the police headquarters next day, i.e., on 9.12.1979. Furthermore, P.W. 5 S.I. Nain Singh Sharma to whom investigation of the crime was entrusted and who investigated the crime could not tell in his cross-examination as to when special report of the crime was sent after registration of the case at the police station to the higher authorities. All these facts lead to the irresistible conclusion that the F.I.R. of the occurrence was not in existence by the time the inquest proceedings were concluded and was recorded later on after due deliberations and consultations.

In view of above infirmities and incongruities, the evidence furnished by the prosecution is too shaky, suspicious and fragile to furnish a sound foundation for conviction of the accused. We, therefore, find that prosecution has failed in establishing the guilt of the accused convincingly and satisfactorily beyond reasonable doubt. Since the judgment of the trial court is based on mis-appreciation of evidence and is somewhat perfunctory, it cannot be sustained in law and is liable to be set aside. The appeal is, therefore, allowed and conviction and sentence recorded against the accused are hereby set aside.

The accused are hereby acquitted of the charge levelled against them. They are on bail. Their bail bonds are hereby discharged.