Har Parsad and Another vs State of U.P.

G.S.N. Tripathi and R.K. Singh, JJ.—Appellants Har Prasad and Ram Khelawan were found guilty on the charges u/s 302/34, I.P.C. and u/s 201, I.P.C. vide the judgment and order dated 30.4.91 passed by the learned Sessions Judge, Sonbhadra in S.T. No. 44 of 90, State v. Har Prasad and Ram Khelawan and were sentenced to undergo life imprisonment on the charge u/s 302/34, I.P.C. and 3 years'' R.I. on the charge u/s 201, I.P.C. Both the sentences have been ordered to run concurrently.

The prosecution case started on the basis of a written F.I.R. lodged by Sri Chet Singh, S/o Shiv Narain Gaur, deceased. The incident is said to have taken place on 4.8.90 at 6 p.m. The report was lodged on the following day on 5.8.90 at 18.05 p.m. The distance of police station is 37 Kms.

It has been alleged that the complainant''s father Shri Shiv Narain (deceased) had gone to graze his cattle in the jungle. He did not return till 5 p.m. Therefore, an anxiety arose in the mind of the complainant and he went out along with others in search of his father. His companion Sri Vishwa Nath, complainant''s uncle was accompanying him. They found Dhansa, P.W. 3 coming there running. He told the complainant and others that the accused Ram Khelawan and Har Prasad, were pressing the neck of Shiv Narain under a Mahua tree with a lathi. But he himself could not collect strength and muster courage to go there and prevent the accused from doing so. Therefore, he informed the complainant and others. Jai Lal and Udai Raj also came there running and all of them went towards the place of occurrence. After going on the hillock they saw that both the accused were pressing the neck of deceased Shiv Narain and thereafter murdering him, they threw the dead body in a ditch. It was around 6 p.m. It started raining. Thereafter and darkness set in Shiv Narain''s dead body could not be recovered. Next morning, i.e., on 5.8.90, the complainant along with others, including Dyali Pradhan went to the spot. The dead body was floating. It was taken out of the water and placed under a tree. There was injury around the neck of the deceased and also on the chest and stomach. Due to enmity, the accused have committed this murder.

On the basis of the written F.I.R., Exhibit Ka. 1, the chik report was prepared at the police station by Constable Sri Ashok Kumar Dubey, on 5.8.90 at 18.05 p.m. He registered the case.

The I.O. Sri Chandra Prakash Singh, P.W. 9. took the investigation in his hands immediately and copied the chik and G.D. entries in the case diary. After taking police force with him, he started for the place of occurrence, where he reached in the same night. But due to want of proper light, he postponed the panchayatnama business for the next morning. Meanwhile, he recorded the statement of Vishwa Nath Gaur. The investigation started at about 6 a.m. on 6.8.90. The I.O. prepared the panchayatnama and other relevant document. The clothes belonging to the deceased were also sealed on the spot. Thereafter he entrusted the dead body to Constable Sri Uma Shankar Rai, P.W. 7, in a sealed condition. He produced the same before the doctor in a sealed condition and identified the same.

Dr. P. N. Singh then attached to P. H. C., Dudhi conducted the post-mortem examination on the dead body on 6.1.90 and collected the following datas:

Contusion 6 cm. ? 3 cm. on both sides of neck just above the cartilages/brown in colour. Margins were congested, highly depressed.

Contusion 7 cm. ? 5 cm. on the front of right shoulder just below right humerus head.

Contusion 15 cm. ? 8 cm. on the middle of chest above the manurium.

On internal examination, the doctor found that ring of trachea was fractured. Both the lungs were deeply congested. The stomach was congested and empty. Large intestine was full with faecal matters and congested. Small intestine was congested. In the opinion of doctor, the cause of death was asphyxia due to strangulation. Dr. Singh, P.W. 6 repelled the suggestion of the accused that the death of deceased was due to drowning.

After sending the dead body, the I.O. recorded the statement of witnesses. The accused were arrested on 7.8.90 around 10.30 p.m. Their statements were recorded. They told that they would be able to make available the deceased personal goods from their house, which belonged to the deceased and, thus, after recording their statements, proceedings u/s 127 of the Evidence Act were adopted. From the possession of the accused, a lathi, Dhoti, Ganji etc. were recovered at their instance. Memos for the same were prepared. Thereafter, P.W. 10, Lalta Prasad Pandey, S.O. took the investigation in his hands. He recorded the statements of remaining witnesses and perused the Sulahnama (Compromise) between the parties and submitted a charge-sheet, Exhibit Ka. 15.

The prosecution has examined the following evidence to prove its case.

P.W. 1 is the complainant Chet Singh. He has supported the case as taken in the F.I.R. and has alleged that some months prior to the incident, the accused Har Prasad had injured the she-buffalo of the complainant and caused damage to its feet. Consequently, the she-buffalo died within a week thereafter. Thereafter, Panchayat was convened by the father of the complainant and accused Har Prasad undertook to give him a he-calf of a cow and further undertook to pay Rs. 300 as fine, which he did not comply with, of course, he handed over the calf to the deceased, on repeated requests, the accused did not pay the amount of fine. But they were extremely enraged with the complainant and wanted to teach him a lesson. In this background and for this motive, he committed the crime. He has also proved the documents prepared in his presence, by the I.O.

P.W. 2 Jai Lal was present when Dhansi informed the complainant about the impending murder of his father at the hands of the accused. He, along with others proceeded towards the spot and from a distance, saw that the accused were carrying the dead body of the deceased and, ultimately, dumped in a ditch nearby and, thereafter, ran away in a dense forest. Next day, the dead body was recovered. Other part of his evidence is the same as done by P.W. 1.

P.W. 3 Dhanshah is the person who informed the complainant with regard to the activities of the accused against his father. He was present at the time of recovery of the dead body also. Thereafter, in his presence, the I.O. recovered some clothes belonging to the deceased.

P.W. 4, Dev Baran Singh is the Pradhan of the village. He has deposed that in a Panchayat presided over by him, the accused was punished for the death of the cattle of the complainant. In the Panchayat, the accused undertook to give a he-calf and a fine of Rs. 300 to the deceased. The matter was brought in black and white and the written document was signed by both the parties. He was present at the time of extrication of the dead body from the ditch. I.O. prepared the panchayatnama and other relevant documents and sent the dead body in his presence, in a carriage to the district headquarters for post-mortem examination etc.

P.W. 5 Sri Chandrabhan Singh has deposed that the accused had conveyed him that they were very much aggrieved by the conduct of the deceased and they would murder him.

P.W. 6 Dr. P. N. Singh had proved the post-mortem report as well as other relevant documents, connected with that.

P.W. 8 Constable Sri Ashok Kumar Dubey prepared the Chik and G.D. entries.

P.W. 7 Constable Sri Uma Shankar Rai conducted the dead body from the spot in a sealed condition and identified the same before Dr. P. N. Singh, P.W. 6.

P.W. 9 S.I. Sri Chandrabhan Singh conducted the investigation upto near its end, when P.W. 10 Sri Lalta Prasad Pandey took the investigation in his hands and after completing the formalities, submitted a charge-sheet against both the accused.

Accused in their statements u/s 313, Cr. P.C. have denied the allegations against them and have said that on account of enmity, they have been implicated falsely. The accused have led no evidence in their defence.

After conclusion of the trial after hearing learned Counsel for the parties, the learned trial court came to the conclusion that the charges under Sections 302/34, I.P.C. and 201, I.P.C. have been proved against the accused beyond a shadow of reasonable doubt. He, accordingly, convicted and sentenced them as noted above.

Both the accused are in Jail. They have sent this Jail appeal as they have no counsel of their own. Sri D. N. Wali learned Senior Advocate was appointed as amicus curiae on behalf of the accused on 8.8.97. He has argued the case very-well today. The learned State Counsel has tried his best to rebut the arguments of the learned Counsel Sri Wali.

We have heard learned Counsel for the parties and gone through the record. We find that there is much force in this appeal and it deserves to be allowed.

In this case, the F.I.R. is said to have been lodged at 5.8.90 at 18.05 p.m. Indicating the incident to be of 4.8.90 at 7 p.m., the distance of the police station from the place of occurrence is 37 Kms. On 4.8.90, the accused allegedly murdered Shiv Narain and threw the dead body in a ditch, which was very deep. It started raining thereafter, therefore, none could manage to stay at or near the place of occurrence or at the place where the dead body was thrown. There was nothing unnatural if the witnesses returned to their houses on account of darkness, depth of the ditch and continuous rainfall. It was the peak season of monsoon when the incident is said to have taken place. The admitted position is that on 5.8.90 in the morning, the complainant and others went near the ditch and they saw the dead body floating. They arranged to take out the dead body and when it was taken, it was completely naked as the clothes had already been removed by the accused in the previous evening. Thereafter ,the complainant went to lodge the report.

The complainant, P.W. 1 Sri Chet Singh is the son of the deceased in this case. He states in page 2 of his Examination-in-Chief that next morning at about 6 a.m., he along with several other persons of the village, including village Pradhan arrived on the spot and the dead body was fished out from the ditch. Thereafter, he got the F.I.R. scribed from Sri Ram Baran and proceeded towards the police station along with his uncle Sri Ram Prasad. According to the F.I.R., the total distance was 37 Kms. but the complainant states at page 2 in the Examination-in-Chief that the total distance to be covered was 20 Koes, i.e., 65 Kms. and it had to be negotiated on foot. There was jungle also in between. In the cross-examination at page 2, P.W. 5 Sri Deo Karan has admitted that at the time when the dead body was fished out, the accused Har Prasad and Ram Khelawan were also present. It was only after the dead body was recovered that the accused went away from the spot. If it were a fact that in the previous evening, the murder had taken place and it was witnessed by the complainant and others, it is difficult to believe that the accused would have been present at the time of recovery of the dead body. This shows that all that has been stated about the incident of previous evening, i.e., relating to the murder and throwing away the dead body, is nothing but a produce of a fertile mind. This throws the entire prosecution story to a dust-bin. Sri Ashok Kumar Dubey, P.W. 8 who prepared the Chik and G.D. states that the complainant had reached the police station at 18.05 p.m. on 5.8.90.

The I.O. Sri C. P. Singh, S.O. has stated at page 2 of his Examination-in-Chief that due to paucity of proper light, he postponed the panchayatnama business for the next morning and thus he started the panchayatnama work at about 6 a.m. on 6.8.90 and that kept him busy upto 8.30 a.m. on 6.8.90. Thereafter, he despatched the dead body.

P.W. 7, Sri U. S. Rai conducted the dead body from the spot in a sealed condition to the Doctor, who performed the post-mortem examination. He states that the place of occurrence is about 65 Kms. from the police station Duddhi, where the report was lodged, although it was addressed to Outpost Incharge, Muirpur, which is about 40 Kms. from the spot and it was this distance of 40 Kms., which was being negotiated for lodging the report.

It seems that the F.I.R. was not ready at the time when the panchyatnama was prepared. The reasons are in myriads.

A look at the original panchayatnama shows that the crime number was originally not noted at the top. But it was done after some time in a different ink. Another peculiarity is that the incident is shown to have taken place on 5.8.90 at 18.05 hrs. and the I.O. started from the police station and reached the spot on 5.8.90 and started the investigation at 6 p.m. In it, the date of the report was written something else. But taking the recourse of overwriting, it was made as 6.8.90. The place of occurrence is shown to be 70 Kms, whereas in the F.I.R it has been written as 37 Kms. The I.O. had simply to copy the distance from the Chik and G.D. Had he done so and if the F.I.R. was lodged by that time, this mistake would not have occurred. Not only this, the date of starting the investigation was originally noted as on 5.8.90 but it was changed to 6.8.90. There is apparent overwriting on the same. In column No. 3, it was to be written. According to the report, i.e., the manner of the assault had to be noted. This was written as strangulation, whereas in the F.I.R., there is also a mention that the dead body was thrown in a ditch. This fact is omitting from the panchayatnama. The time when the panchayatnama was concluded, is not mentioned towards the end of the panchayatnama.

In the letter to the R.I., Exhibit Ka 9, there is an overwriting in the letters letter 1 before 805. That is meant for showing the time of the F.I.R. at the back of it the column meant for showing the receipt of the dead body at the police headquarters, is completely blank. The distance of the headquarter from the place of occurrence had to be noted in column No. 3. There is an overwriting in it and the distance is written as 70 Kms. All these differences have occurred simply because the F.I.R was lodged after considerable delay.

Dr. P. N. Singh conducted the post-mortem examination on 6.8.90 at 4 p.m. The dead body was received at the R.I. headquarters at 4 p.m. on 6.8.90. Why the dead body reached so late at about 4 p.m. is not explained. Had the deadbody, been despatched as alleged by the I.O. at about 8.30 in the morning, it could not have taken such a lot of time. This again indicates that the F.I.R. was not ready at 18.05 p.m. on 5.8.90, as alleged. Thereafter, so much delay was caused in reaching the dead body from the place of occurrence.

Regarding the incident of 4.8.90, although several persons, including the complainant claimed to be eye-witnesses, but on a close scrutiny, it appears that they had been seen the incident at all, nor could they normally seen it. According to F.I.R. Dhansha, P.W. 3 was coming running towards the complainant and he met them at about 6 p.m. He informed him that the accused were committing the murder of his father by pressing his neck. The post-mortem report shows that there were only three contusions on the dead body of the deceased. The ring of trachea was fractured. For causing only such a few injuries, the accused would have taken not more than 5 minutes only. In this 5 minutes, P.W. 3, Dhansha saw the incident and came running upto the place where he met the complainant. According to him, it was about 5 p.m. when he saw the incident and ran towards the complainant. Shiv Narain was about 65 years, an old man. According to the complainant, at page 4 of his statement, he learnt about the murder of the deceased from Dhansha at 5.30 p.m. The place of occurrence (Dandu-Ki-Pahari) was about 3 Kms. from the complainant''s house. Therefore, Dhansha had to cover this distance. That would take not less than an hour. Even then, according to the complainant, after receiving the information, he reached near the spot and saw the accused committing the murder of his father. It is impossible that the accused would take so much time in order to provide an opportunity to the complainant''s side to come near the place of the occurrence and see the incident with his own eyes and the complainant and the witnesses would avail this opportunity and go near the place of occurrence and see the accused persons throwing the dead body in a ditch. The complainant states at page 1 of his Examination-in-Chief that at about 6 p.m., he and others went to the hillock and from there, they saw the accused carrying the naked dead body of his father towards the ditch and they threw the dead body in the ditch and thus the complainant gathered the first-hand information regarding the incident. It is impossible to believe it. A 5 minutes job was made to be completed in about one hour according to the prosecution, as if the accused were waiting for the witnesses to come there and see the incident with their own eyes. Hence we find that neither the complainant nor Dhansha saw the incident on 4.8.90 at 6 p.m. That is why, so much delay was caused in reporting the matter and it is alleged to have been reported at the police station on 5.8.90 at 18.05 hrs. This is the first major reason why we reject the prosecution story as it has been framed.

Another important feature of the case is that the accused removed all the clothes from the dead body on the spot on 4.8.90 and threw only the naked dead body in the ditch. Thereafter, the accused ran towards the dense forest. Hence they could not be chased. Not only this, these clothes are said to have been recovered from the accused''s, i.e., joint possession, an evidence sought to be introduced u/s 27 of the Evidence Act. This is again an unnatural conduct. The accused chose a totally isolated place for murder nay, they threw the dead body in a deep ditch to avoid evidence against them. But they, all along carried the clothes of the deceased, removed from his body and ran towards a dense forest along with the same. These are the clothes, etc., allegedly recovered from the accused from their joint possession as admitted by P.W. 2 Sri Jai Lal towards the end of the cross-examination at page 5. (Recovery from the joint possession is ipso facto illegal), after a long lapse of time on 8.8.90 at 10.30 p.m. and thereafter, on their pointing out and from their joint possession, these articles were recovered. It appears to be a fair tale prepared by the prosecution and indicates as an act of an insane person, who was knowingly carrying the evidence against him along with him. That is not a natural conduct. It appears to be a product of a legal mind that we are satisfied from the oral evidence regarding the murder, full of lacunas and could not stand the scrutiny by the Judge. Therefore, stepni type of evidence was created to be availed against the accused u/s 27 of the Evidence Act. That makes the entire prosecution story as well as the investigation a totally tainted effort. Hence we reject the theory of recovery from the accused, of the articles belonging to the deceased. The accused had passed through a dense forest. They could have thrown these articles in the jungle or even in the same ditch, where they threw the dead body. It was not an inadvertent act on their part, rather it was a deliberate act on the part of the accused to collect these articles belonging to the deceased. The complainant says at page 2 at top that when he saw the accused carrying the dead body of his father towards the ditch, he shouted towards them. Thereafter, the accused hurriedly threw the naked dead body in the ditch and ran towards the jungle carrying the shoes and lathi belonging to the deceased, with them. It means that this foolish act not repeated after knowing that the complainant and others had seen their activities of murder as well as throwing the dead body. No normal person will act like that. Therefore, overacting on the part of the prosecution in introducing the evidence u/s 27 of the Evidence Act, must be deprecated and condemned.

Dhansa, P.W. 3 was not at all inimical towards the accused or vice versa, he saw the accused committing the murder of Shiv Narain, an aged man of about 65 years at about 5 p.m. He did not request the accused to desist from committing murder. He did not act like a prudent man in making even an appeal to the accused not to murder the deceased. After all, he had no fears from them. He could have appealed from a distance also. But he did not do that. Rather, he chose to cover a distance of about 3 Kms. and then informed the complainant and others, who by chance, were on their way towards the place of occurrence in search of the deceased. Therefore, we find that the presence of Dhansha at the place of occurrence on 4.8.90 between 5 and 6 p.m., is not probable. He had gone to collect wood from the jungle. After he saw the incident, he threw the wood and proceeded towards the complainant''s house. The I.O. did not collect any wood, allegedly collected by Dhansha at or near the place of occurrence. Nay even the axe, which he might have used in cutting the branches of the trees, was not recovered nor it was shown to the I.O. Under these circumstances, there is no legal evidence on the record to convince the Court that Dhansha was present in that region or he could see the incident. Under these circumstances, the total evidence of Dhansha deserves to be rejected as being totally improbable. This way, we reject his evidence. Then we are left with no other substantial evidence to connect the accused with this crime. No doubt, there was enmity between the parties and it could provide a motive for the murder of the deceased. But that would create only a suspicion towards the accused and nothing more. Suspicion is no substitute for evidence. Therefore, the prosecution must fail on this ground firstly and secondly, as observed earlier, the evidence sought to be procured u/s 27 of the Evidence Act for proving the charge u/s 201, I.P.C., also deserves to be rejected, as totally unnatural. The sum total of this analysis is that nobody, including Dhansha saw the incident with his own eyes and the recovery u/s 27 of the Evidence Act, is totally fake.

Taking all these factors into consideration, we come to an irresistible conclusion that the prosecution has totally failed to prove its case against the accused beyond a shadow of reasonable doubt. The learned Sessions Judge did not go deeper into the matter and has come to a wrong conclusion, which cannot be upheld by this Court. The existence of motive and enmity between the parties is not disputed.

The appeal, is therefore, allowed. The judgment and order passed by the learned Sessions Judge are set aside. The accused are in jail. They should be released at once in case they are not wanted in some other case.

We are extremely obliged to Sri D. N. Wali, the learned senior counsel, who has been appointed as an amicus curiae by the Court for rendering a very valuable service towards the dispensation of justice. As a token of this, we order that a sum of Rs. 1,000 (Rs. one thousand only) shall be paid to him as a token of his fees because even the total payment of part of his fees is virtually impossible. The office is directed to make the payment to Sri Wali without fail and without delay, positively within a month from today and inform the Court accordingly.