Om Prakash and Another vs State of U.P.

Naseemuddin, J.—This appeal has been filed by Om Prakash, S/o Ganesh Prakash and Santosh S/o Om Prakash against the judgment and order dated 13.8.1991, passed by Sri R. C. Gautam, the then IIIrd Addl. Sessions Judge, Lakhimpur Kheri, in S.T. No. 101 of 1990, whereby the Appellants were convicted for an offence punishable u/s 302/34, I.P.C. and each of them was sentenced to undergo imprisonment for life.

On 10.6.1989 at 00.30 hours an F.I.R. was lodged with the police of Kotwali Dhaurahara, district Lakhimpur-Kheri by P.W. 1 Babboo Lal S/o Mihi Lal, R/o Raipur against the two Appellants, alleging that the same night on 9.6.1989, while he along with his brother Bhaiya Lal and younger brother Ram Khelawan, Chhotey Lal S/o Mool Chand, P.W. 2, Kishori Lal were returning from Dhaurahara Bazar to their village Raipur and reached near the sugarcane field of Peer Ghulam about 8 p.m. then the two Appellants armed with banka, challenging Bhaiya Lal started causing hurt to Bhaiya Lal by means of banka. That out of fear these persons rushed towards the village. That many persons of the village were brought to the spot of occurrence by these witnesses. That these persons found that Bhaiya Lal was lying dead and the miscreants had run away. On the basis of this F.I.R., Ext. Ka-1, Chick Ext. Ka-3 was prepared and case was registered vide Ext. Ka-4. Case was investigated by P.W. 4, Sukh Ram Sonkar S.I. who went on the spot and prepared the inquest report on the dead body and sealed it. The inquest report Ext. Ka-5 and its connected papers Exts. Ka-6 to Ka-9 were sent along with the dead body for post-mortem. Then site map of the place of occurrence Ext. Ka-10 was prepared. Sample of bloodstained and plain earth was taken into custody and sealed and prepared its memo Ext. Ka-11. Some papers (Ext. 2 and 3) were given by Smt. Bitto of which memo Ext. Ka-12 was prepared. Statements of the witnesses were also recorded and autopsy on the dead body of Bhaiya Lal was prepared by P.W. 3, Dr. S. K. Tiwari. After completing the investigation charge-sheet was submitted. Accused denied the allegations and pleaded not guilty to the charge. Accused Santosh was alleged to be a minor. The trial court believed the evidence of the prosecution witnesses and convicted and sentenced the Appellants as above. Feeling aggrieved the present appeal has been filed.

Learned Counsel for the parties were heard and record of the trial court was perused.

The motive of the occurrence as alleged in the F.I.R. was an incident of three years prior to the lodging of the F.I.R. wherein Bhaiya Lal, the deceased was objected to the construction of a Mandir by the two Appellants. Both the sides alleged the land of the Mandir to be their own. It was alleged by the Appellants that Babboo Lal, (P.W. 1) etc. have not been permitting them to offer their prayer in the Mandir. Kishori Lal has been cultivating the land of Babboo Lal. It was further alleged that the dead body of Bhaiya Lal was found in the field of Peer Gulam. That no occurrence as alleged took place. A second motive was brought in evidence regarding the illicit relation of Bhaiya Lal with one Meena, the daughter of Om Prakash Appellant. However, these two motives were simply alleged. The prosecution had examined Babboo Lal and Kishori as the two witnesses of the factum of occurrence. Babboo Lal is the real brother of the deceased and Kishori Lal is alleged to be the person who cultivates the land of Babboo Lal. Other witnesses of factum of occurrence mentioned in the F.I.R. and elsewhere viz. Ram Khelawan, Chhotey Lal etc., were not produced before the trial court.

The occurrence is alleged to have taken place at about 8 p.m. in the night. No source of light was mentioned in the F.I.R. under which the alleged Appellants were seen and identified. The post-mortem report inter alia reveals that 100 gram of food matter recognised as rice was present in the stomach. There was material and gases in the two intestines also. Besides, there were found to be the following ante-mortem injuries on the dead body of Bhaiya Lal:

(i) Incised wound 4 cm. ? 1 cm. ? muscle deep on right side of head 10 cm. above right ear.

(ii) Incised wound 25 cm. ? 2 cm. ? bone fractured right side of head 3 cm. above right ear. Membranes and bones are divided.

(iii) Incised wound 20 cm. ? 2 cm. on the right temple and right side of neck and bone just above right ear pinna extending from front of right ear pinna to back of neck on right side (Note underneath by No. 38.4 fracture of temporal parietal and middle cranial fossa found).

(iv) Incised wound 3 cm. ? 1/2 cm. ? muscle deep on left side head 7 cm. above right ear.

(v) Incised wound 8 cm. ? 3 cm. ? bone deep on right scapular area, horizontal direction (scapula fractured).

(vi) Incised wound 7 cm. ? 1 cm. ? muscle deep on right side back of chest in middle part, vertical and oblique.

(vii) Incised wound 6 cm. ? 2 cm. ? cavity deep on the left side chest 7 cm. below left nipple left axilla fractured and pleura and lung congested.

(viii) Incised wound 3 cm. ? 1 cm. ? muscle deep on palmer side of left wrist.

(ix) Incised wound 14 cm. ? 1/2 cm. ? bone deep in left palmer, extending from root of thumb to base of little finger.

(x) Incised wound 7 cm. ? 1 cm. ? bone deep in left palm at the base of index finger.

(xi) Incised wound 15 cm. ? 3 cm. ? bone cut in right fore-arm back aspect and inner back, muscles, vessels and both bones of fore-arm divided.

(xii) Incised wound 2 cm. ? 1 cm. on right fore-arm and proximal of wrist. Brain, membranes were congested, pulpy and divided, middle cranial fossa fractured.

The cause of death was shock and haemorrhage as a result of ante-mortem injuries.

The post-mortem was conducted on 11.6.1984 at 5.20 p.m.

The above datas of the injuries and food matter have to be looked into with the fact that the occurrence took place near abadi and in the open field while the deceased and other persons were returning back from Dhaurahara Bazar in the night. In the F.I.R. no source of light was mentioned but the source of light was introduced in the statements of the two witnesses of fact of occurrence. It was mentioned that there was moon-light under which the Appellants were identified. The very fact that it was stated that the assailants were identified and recognised in the moon-light shows that the occurrence took place in the night. The abadi of the village is away by about 50 paces according to P.W. 1 from the field and rasta of occurrence. None of the persons which included the real brother had intervened and had tried to rescue the victim. P.W. 1 says that when he returned along with the villagers at the place of occurrence he had found the victim dead and that he had reached the spot of occurrence immediately after the occurrence. By this he perhaps means that when the occurrence started and all the persons ran away then P.W. 1 came along with the villagers on the spot i.e. he returned after leaving the occurrence in middle. He says that he dictated the F.I.R. at 11.30 p.m. in the night. He clarified that the report was written after three hours of the incident and that thereafter he started for the police station along with two others viz. Chhotey Lal Chaukidar and Chhotey Lal, S/o Mool Chand. As to why F.I.R. was written in the village after three hours has not been explained. P.W. 2 stated that when he had started along with others for the village from the Bazar then the sun had not set and it was after ten minutes that it became night. The distance of the village from the Bazar is three miles. So there is no doubt that it was dark. If the occurrence had been seen, then there was no reason to delay the writing of the F.I.R. by three hours. This is important in this case because if the F.I.R. was dictated at 11.30 p.m. then the language of the F.I.R. would have been such which would have indicated that the occurrence took place on that day (viz. today). In the F.I.R. the word used is that the occurrence took place yesterday. If the F.I.R. had been written at 11.30 p.m. then the natural thing was to write that the occurrence had taken place today. The writing that the occurrence took place yesterday means that the occurrence was not witnessed by any one and the F.I.R. was written later on and was ante-timed. It was introduced in the evidence of the two witnesses that the two Appellants caught hold of the victim aged about 28 years by holding one hand each and caused injuries by another hand by means of banka. One of the Appellants is a minor and the other Appellant is aged 50 years. Had it been so then it would not have been possible to cause so much injuries of such dimension in presence of kith and kin of the victim only 50 paces away from the abadi. There would have been certainly resistance from the victim as well as from the real relation and others who were present on the spot. It may be mentioned that the story of the prosecution is that these persons were returning after shopping and the victim had money and vegetables etc. and other persons had also material with them but none of these things including the money with victim was recovered from his body at the time of preparation of the inquest report. Moreover, it is alleged in the F.I.R. that all the witnesses had run away towards the village out of fear and thereafter had returned along with others and found the victim dead. The witnesses say that these persons continued standing and continued to witness the occurrence and that P.W. 1 ran away from there. Another thing was introduced to the effect that the Appellants were also saying that Bhaiya Lal be killed. This thing was never alleged originally. The occurrence took place on the road initially but P.W. 2 says that no blood had fallen down on the rasta. He says that blood was found only at the place where the dead body was found. These facts show that none of these two persons were present on the spot or in any case the occurrence took place some time in the darkness and nobody could be seen. If there had been a source of light, be it moon-light then this fact would have been mentioned in the F.I.R. It was the sixth night of shuklapaksha and full moon was away by about 8 days.

Non-recovery of any money or items allegedly purchased from the market also shows that the victim may also have gone to the market or may not be returning from the market. The inquest report Ext. Ka-5 shows that in the column of weapons or articles recovered from near the dead body firstly something was written and then there is cutting of the writing and it was mentioned that those items are mentioned on the back of the paper, but nothing was recovered from near the dead body and nothing was written on the back side. In the column of opinion of the panches it was mentioned that the opinion was differing from panch to panch about the cause of the death. The F.I.R. appears to have been taken down ante-timed. Except for the place where the dead body was lying in the field blood was not found at the place where the occurrence took place on the road or in the pit by the side of the road.

The story of the prosecution is such that it is highly improbable. When so many persons were there and there was a minor boy and an old man of about 48 or 50 years and there was no fire-arm with assailants ; and the manner of occurrence is that the assailants were catching hold of one hand each, and were first dragging and were then using banka, then there was a very easy thing for so many alleged persons present to have at least intervened when the abadi was alleged to be only 50 paces away from the open field. There is no doubt that the occurrence took place in the night and that is why in the evidence only the light of moon was introduced, whereas moon-light was not mentioned in the F.I.R. obviously because full moon was away by 8 or 9 days on that day. The conduct of the alleged persons present on the spot creates doubt about the probability of the story. The F.I.R. also appears to be ante-timed. Although the inquest report was prepared in the morning at 6.30 a.m. but the post-mortem took place on the next date i.e. 11.6.1989, at 5.20 p.m. Dead body, according to Ext. Ka-6, was sent for post-mortem on 11.6.1989 at 8.15 a.m. The dead body reached the doctor P.W. 3, Dr. S. K. Tiwari on 11.6.1989, as per his statement on oath. This difference shows that the dead body was not sent at 8.15 a.m. on 10.6.1989. This means that the entire matter has been made ante-timed.

In view of above discussion it appears that the F.I.R. was ante-timed. The witnesses appeared to be not present at the time of occurrence, the time of occurrence and manner of occurrence and story of the prosecution appear to be improbable. The occurrence appears to have taken during night when there was no source of light. The timing of the inquest report had also been ante-timed. There was made no recovery from near the dead body. There was no blood available at the place where initially occurrence started. The blood was found only in the field where the dead body was found. The story of catching hold of one hand each by the two Appellants and then inflicting blows in presence of so many young persons is highly improbable. The story of challenge by the Appellants was also introduced which also appears to be improbable. The learned trial court in our opinion should have gone into intrinsic worth of the story of the prosecution and should have given the benefit of doubt to the Appellants of this case of alleged night occurrence. According to the prosecution there was enmity which is a double edged weapon and cuts both ways. The prosecution has failed to prove the case beyond reasonable doubt. The Appellants are not found guilty of the charge of murder framed against them. They are entitled to acquittal. Their appeal deserves to be allowed. The appeal is allowed. Conviction and sentence under appeal are set aside. Appellants Om Prakash and Santosh are acquitted of the charges framed against them.

Appellant Santosh is on bail. He need not surrender to his bail bonds. His bail bonds are cancelled and sureties discharged. Appellant Om Prakash is in jail. He shall be released forthwith if not wanted to be detained in any other case.