Kamlesh and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—Instant criminal appeal was preferred by appellants Kamlesh Kumar and Sheo Kumar. During pendency of the appeal, appellant Kamlesh Kumar expired, therefore, the appeal so far as it related to appellant Kamlesh Kumar was abated vide order dated 10.10.2007.

Challenge in the instant criminal appeal is the judgment and order dated 27.11.1981 passed by II Additional Sessions Judge, Hardoi, in Sessions Trial No. 282 of 1980 (as per lower court''s record the correct Sessions Trial number is A-282 of 1980), arising out of Case Crime No. 143 of 1980, Police Station Mallawan, District Hardoi, whereby the surviving appellant Sheo Kumar was convicted as under:--

"i) For the offence under Section 302 read with Section 34 IPC imprisonment for life;

ii) For the offence under Section 460 IPC, rigorous imprisonment for a period of five years;

iii) For the offence under Section 436 IPC, rigorous imprisonment for a period of two years;

iv) For the offence under Section 201 IPC, rigorous imprisonment for a period of two years, and

v) For the offence under Section 323 read with Section 34 IPC, rigorous imprisonment for a period of one year."

In brief, the case of the prosecution was that in the intervening night of 17/18.04.1980 at about 02.20 AM, a telephonic information was given by Raj Kumar of village Sarfuddinpur to Police Station Mallawan, District Hardoi, informing the police that the fire has spread in the village. This information was reduced in writing in G.D. No. 2 and thereafter SHO PW-5 Ranvir Singh along with some other police personnel went to the said place. After reaching the place of occurrence, the police party made effort to control the fire. Meanwhile, fire brigade also reached there and the fire was subsided. A suspicion was raised in the mind of SHO Ranvir Singh that it is not a case of fire but it is a case of murder. So, he recorded the statement of Smt. Sushila Devi (PW-1) and reduced it into writing and her signatures were obtained on it, thereafter it was sent through one constable to the police station. On the basis of the said statement, the case was registered and the papers relating to the investigation and other papers were sent by the same constable to SHO at the place of occurrence. In her statement, Smt. Sushila Devi had disclosed that deceased Shiv Pyari was her relative. She was having no issue. Hence, the daughter of the complainant (Km. Uma, PW-3) was living with deceased Shiv Pyari for the last 10-12 years and marriage of Km. Uma was also settled by deceased Shiv Pyari. Tilak of Km. Uma was to be sent on 22.04.1980 to village Muriya Khera. In the intervening night of 17/18.04.1980, Km. Uma and Shiv Pyari were sleeping on one cot and the complainant Smt. Sushila Devi along with her two minor children was sleeping on the other cot. There was light of Dibia. In the midnight, appellants Kamlesh Kumar and Sheo Kumar with the help of a rope came down in the courtyard of the house of the deceased Shiv Pyari. Appellant Kamlesh Kumar (dead) was armed with country made pistol and appellant Sheo Kumar was having a torch and a country made pistol. Appellant Kamlesh Kumar caught hold of Shiv Pyari. Shiv Pyari raised alarm. Hearing her alarm, the complainant and her children got up. In the meantime, Shiv Pyari sat on her cot. Appellant Kamlesh Kumar fired with his country made pistol which did not hit her. Thereafter fire was repeated by appellant Kamlesh Kumar due to which she fell down on the cot and died. Both the accused persons pushed the complainant and her children in the southern room and they dragged the dead body of deceased Shiv Pyari in the small room where cow dung cakes were kept and after pouring kerosene oil, it was set ablaze. Appellant Sheo Kumar had poured kerosene oil and appellant Kamlesh Kumar set it at fire due to which the dead body of Shiv Pyari and household goods and also the buffalo were burnt. Both the accused persons after committing this offence ran way through the stairs. It was alleged that in the light of Dibia and torch, the complainant Sushila Devi and Km. Uma had recognized the accused persons. During investigation Dibia, blood stained and plain earth, dari, piece of blood stained cot were taken into custody and their memos were prepared. Three empty cartridges were also recovered by the police and its memo was prepared. Two silver bangles were also recovered and its memo was prepared. Other goods, found in the house, were also taken into custody by the police and were given in the supurdigi of Smt. Sushila Devi and its Fard Ext. Ka-12 was prepared. During incident, Smt. Sushila and her minor son Awadhesh had sustained injuries. They were medically examined at PHC Mallawan in the evening of 18.04.1980. In the medical examination of Smt. Sushila, which was conducted by PW-2 Dr. D.N. Shukla at 05.30 PM, the following injury was found on her person:--

"Contusion 3 cm x 2 cm at right knee joint. Reddish in colour. Complain of pain at left shoulder but no injury detected. Injury was simple and caused by blunt object and duration was about 3/4 day."

Injured Awadhesh aged about 7 years was also examined at 05.45 PM and one penetrated wound 0.5 cm x 0.3 cm x bone deep at occipital region 15 cm above neck, margins were irregular and inverted. Injury was simple and caused by some blunt pointed weapon. Duration was about 3/4 day.

The inquest proceedings were conducted in the morning of 18.04.1980 and the dead body was sent for postmortem, which was conducted on 19.04.1980 at 09.30 AM. In the postmortem, ante-mortem burn injuries, on the whole body, were found. Body was completely burnt, charred, roasted and cooked. Only few viscera and bones were present. The cause of death was extensive burn injuries.

The case of appellant Sheo Kumar was that he has been falsely implicated in this case. No one has witnessed this incident. Subsequently Smt. Sushila Devi and her daughter were called from their village and this false case has been concocted against him due to enmity of Srikrishna s/o Putan with Kamlesh. Since he is uncle of Kamlesh hence he has been falsely implicated. It was a case of dacoity by unknown persons..

In order to prove its case, the prosecution has examined PW-1 the complainant Smt. Sushila Devi, PW-2 Dr. D.N. Shukla of PHC Mallawan, PW-3 Km. Uma Devi, PW-4 Dr. N.A. Khan, who has conducted postmortem on the body of the deceased, PW-5 SO Ranvir Singh, the initial investigating officer of this case who conducted the investigation of this case up to 20.04.1980, PW-6 Ram Saran Pandey, who has proved the charge sheet filed by the subsequent Investigating Officer SHO O.P. Srivastava as secondary evidence.

In defence, DW-1 Bhikham Singh has been examined, who has proved the statement under Section 164 Cr.P.C. given by two eyewitnesses. DW-2 is Maiku Lal, who was examined on the point of alibi of Kamlesh Kumar (the other appellant). DW-3 is V.S. Khare, who has proved the G.D. Entry of 17.04.1977 to show that the appellant Kamlesh Kumar had lodged NCR against Srikrishna son of Putan.

Learned trial court, after appreciating the evidence on record, convicted the appellants, as above, hence the instant appeal.

Submission of learned counsel for the surviving appellant is that in the instant case the main allegation of the prosecution was against appellant Kamlesh Kumar (dead) and the presence of PW-1 Smt. Sushila Devi and PW-3 Km. Uma Devi was unbelievable at the place of occurrence but the learned trial court has not considered this aspect. It is submitted that the appellant has come with a definite case that Smt. Sushila Devi and Km. Uma Devi were subsequently called from their village and they were falsely made eyewitnesses in this case. The Investigating Officer PW-5 Ranvir Singh has played a suspicious role in fabrication of the prosecution case.

Learned AGA appearing for State has submitted that learned trial court has correctly appreciated the prosecution evidence and has rightly convicted the appellant. The grounds raised by the counsel for the appellant were also raised before the learned trial court and have been rejected by a reasoned judgment. Hence, the judgment of the learned trial court need not to be interfered with.

The argument of learned counsel for the appellant was two folds. The first is regarding the role of the appellant and the other is regarding the presence of two prosecution witnesses at the time of incident.

There is no doubt to the fact situation that the role assigned to the present appellant Sheo Kumar was that he accompanied the deceased appellant Kamlesh Kumar. He was having a torch and a country made pistol in his hands. The role of firing on the deceased was assigned to co-accused Kamlesh Kumar (dead) and the role of setting the cow dung cakes at fire was also assigned to the co-accused Kamlesh Kumar. It is submitted that it was no where the case of the prosecution that any of the appellants had brought the can of kerosene oil which was used to set fire. It has also been submitted that none of the prosecution witnesses have stated that the kerosene oil was kept in the courtyard of the house which was picked up by the accused persons.

The next and main argument of the learned counsel for the appellant was regarding the presence of the two eyewitnesses i.e. PW-1 Smt. Sushila Devi and PW-3 Km. Uma Devi. Both these witnesses have supported the case of the prosecution. Learned counsel for the appellant has also drawn our attention towards several contradictory statements of the witnesses. Admittedly Smt. Sushila Devi was the resident of other village i.e. village Kalyanpur and Km. Uma Devi was her daughter. The prosecution has come with a definite case that at the place of occurrence, a suspicion was raised in the mind of Investigating Officer that it is a case of murder. It is nowhere the case of the prosecution that after arrival of the police any information was given by Smt. Sushila Devi to the Investigating Officer as to how the incident took place. It is nowhere the case of the prosecution that before the suspicion crept into the mind of the SHO, Smt. Sushila Devi or Km. Uma Devi made any effort to disclose the incident to the Investigating Officer. It was only after the suspicion of the Investigating Officer that the statement of Smt. Sushila was reduced into writing and on the basis of the same, the first information report was registered. PW-3 Km. Uma Devi in her cross examination has stated that after the incident in the morning she along with her mother and two brothers went to their native village Kalyanpur. They were accompanied by Srikrishna son of Putan. They reached their village at 09.00 AM in the morning. The Investigating Officer in his evidence has stated that he had prepared the site plan on the pointing out of the complainant Smt. Sushila Devi and Km. Uma Devi at about 12.00 in the noon. So two statements do not reconcile. If these witnesses reached their village at 09.00 AM then there was no occasion for the Investigating Officer to prepare site plan at 12.00 in the noon at their pointing out. This inconsistency supports the defence theory that these witnesses were actually brought to the village of incident by Srikrishna son of Putan and they reached there by 09.00 AM and thereafter prosecution case was cooked up. This fact also finds support from the statement of PW-5 wherein he has stated that he made effort to record the statement of several persons living in the vicinity but they were not available. It also suggests that the persons living in the vicinity were apprehending their false implication in this incident at the hands of the police so they absconded. Such an apprehension could have been the result of the fact that by that time the case of the prosecution was in embryo and it was not given any shape. Delayed medical examination of Smt. Suhila also lends support to the defence theory in absence of any explanation for delayed medical examination. The purpose of presence of PW-1 Smt. Sushila Devi and PW-3 Km. Uma Devi, as disclosed by the prosecution, was that Tilak was to be sent on 22.04.1980 and in that connection, PW-1 Smt. Sushila Devi had come to the village and made purchase of the gifts to be sent in the Tilak ceremony. The said items were kept in the room. She has also given the details of the items which were purchased for the said purpose and has also stated that Rs. 1,600/- were also to be given in the Tilak and the same were also kept in the house. But perusal of the supurdiginama of the goods (Ext. Ka-12) which were given in the supurdigi of PW-1 Smt. Sushila Devi by PW-5 Ranvir Singh does not contain the description of any such item which was to be sent in the Tilak of PW-3 Km. Uma Devi nor any burnt utensil was recovered. The statement of Km. Uma Devi was recorded after more than one year of the incident but even by that time her marriage was not solemnized. So the absence of items which were purchased for being sent in Tilak makes the defence case probable that the story of sending Tilak on 22.04.1980 was a false story created only to show the presence of the two witnesses in the house of the deceased Shiv Pyari.

In the inquest report, the opinion of the Panchs was mentioned as under:--

Initially the word ''Bandook'' was written in place of ''Tamancha'' which was crossed and word ''Tamancha'' was substituted. It is really strange to note that none of these Panchs were the witness of this incident but in spite of that they have given an opinion that the fire was shot by the country made pistol and not by gun. The appellants had an specific defence that they have been falsely implicated at the behest of Srikrishna son of Putan and it is pertinent to note that Srikrishna son of Putan and Putan both were the witnesses in the inquest proceedings. Apart from it, Srikrishna was the person who, as per the evidence of PW-3 Km. Uma Devi, had taken them to their native village. The aforementioned opinion of the Panchs shows the interest of the Investigating Officer to build up the case of the prosecution.

Learned counsel for the appellant has also argued that both the witnesses of fact have subsequently stated in their evidence that after receiving the fire shot, Shiv Pyari died on the spot and thereafter the dead body was dragged into other room and thereafter, the dead body was set at fire. Though this argument would not have impressed us because both these eyewitnesses were not the expert witnesses to say whether Shiv Pyari died instantaneously or not. But in the peculiar facts of this case where the appellant has come with a definite defence that false story was cooked up, it assumes importance. Prosecution has come with a definite case that Shiv Pyari died because of gunshot injury and her dead body was set at fire while medical evidence completely rules out such story as no sign of firearm injury was found nor postmortem burn injuries were found on the body of the deceased. So in the peculiar facts of this case this suspicion also assumes importance because presence of PW-1 Smt. Sushila Devi and PW-3 Km. Uma Devi has been challenged.

Perusal of the impugned judgment also shows that learned trial court has placed implicit reliance on the statement of PW-3 Km. Uma Devi on the ground that she has also sustained injuries. In paragraph 31 of the impugned judgment in the first line it has been mentioned that she is also one of the injured. While it is nowhere the case of the prosecution that Km. Uma Devi was an injured witness. It is true that PW-1 Smt. Sushila Devi has received one simple contusion on knee. Such an injury could have been caused in the ordinary course of nature by a fall. The other injured Awdhesh was not examined as a witness though his statement under Section 161 Cr.P.C. was recorded by the Investigating Officer. But his injury also does not fit in with the case of the prosecution as he has received one penetrating wound. Apart from it, neither in the first information report nor in the evidence the witnesses have stated that their injuries were caused by accused persons or it was result of a fall only. As stated earlier delayed medical examination also creates doubt about it. As per the evidence of the prosecution the first fire did not hit the deceased and the second fire hit the deceased but the part of the body where the second fire landed was not disclosed by any of the two witnesses nor any sign of firing was found on the body of the deceased. Perusal of the site plan also shows that the house was surrounded by several houses and by the time the police reached the place of occurrence, fire was still present and it was subsided by the police. It has also come in the evidence that Shiv Pyari had cried and raised alarm. Three fires were shot. It is really strange that none of the neighbours made any effort to subside the fire. The appellants are alleged to have gone through the stairs but there is no evidence as to at what point they got down. The condition of the body shows that the body of the deceased remained in fire for a long period. It is nowhere the case of the prosecution that PW-1 and PW-3 were closed in the room. They came out from the room after the accused persons made good their escape. But none of these witnesses have stated that they made any effort to subside the fire by throwing water or in any other manner. This conduct of the witnesses is highly abnormal. They could have asked for the help of other neighbours but no such effort was made by them. Even after arrival of police these two witnesses made no attempt to inform the police immediately. So this aspect of the matter also makes the defence case probable.

Law is settled on the point that the prosecution is bound to prove its case beyond reasonable doubt but on the contrary if the accused comes with a definite defence, then he is only required to show that the defence version is probable. The accused is not required to prove his defence case beyond reasonable doubt. The burden to prove his defence case is not as high as that on the prosecution to prove its case. In the instant case, the defence was successful in showing that PW-1 and PW-3 were subsequently called from their village and a false case was cooked up was probable.

In this case, appellant Sheo Kumar was on bail but because of warrant issued against him, he was sent to jail on 27.08.2015.

Keeping in view the probability of the defence, accused Sheo Kumar, who was not assigned any specific role, becomes entitled to benefit of doubt. Accordingly, this appeal deserves to be allowed and is hereby allowed. Appellant Sheo Kumar is hereby acquitted of all the charges levelled against him. He be set at liberty. He is in custody. He shall be released forthwith if not wanted in any other case.

Office is directed to communicate this order to the court concerned and to send back the lower court record.