Raja Din vs State of U.P.

Vinod Prasad, J.—Appellant Rajadin son of Samay Din through this jail appeal has questioned his conviction u/s 302, I.P.C. and sentence of imprisonment for life recorded by 1st Additional District and Session''s Judge, Muzaffar Nagar vide his impugned judgment and order dated 22.7.1997 passed in S.T. No. 37 of 1995 (Crime Number 83 of 1994) u/s 302, I.P.C., Police station Ratan Puri, district Muzaffar Nagar.

The thumbnail description of the factual matrix of the case is that Appellant is a resident of village Kalyanpur under police circle Ratan Puri, district Muzaffar Nagar. Deceased Sagir Ahmad was his own son. On 5.8.94 Appellant alongwith his deceased son was sleeping on the second floor of his house when two people climbed on the said floor at 4.30 a.m. and one of them assaulted Sagir Ahmad on his neck with knife and the other knifed the Appellant (informant) causing him injuries. Sagir Ahmad-son of the Appellant died instantaneously. The Appellant (informant) raised hue and cry, which attracted many villagers. But the assailants took to their heels and managed to escape before their arrival. Appellant (informant) got the F.I.R. scribed through Mahak Singh son of Shish Ram of his village and sent it to the police station Ratan Puri situate at a distance of 4 km. through Allah Banda P.W. 1 who lodged it at 8.05 a.m. that day itself as Crime Number 83 of 94 u/s 302/307, I.P.C. Head Constable Suresh Pal Singh P.W. 4 prepared the chik F.I.R. (Ex. Ka-2) and G.D. No. 8 (Ex. Ka-3). Fahim Khan S.O., P.W. 5 took up the investigation. During investigation the Investigating Officer recovered blood stained and plain earth from the spot and also recovered a blood stained knife at the pointing out of Abid, another son of the Appellant from a box from the house of the Appellant. The box was got open by Abid and the recovered knife was alleged to have been used in the commission of crime by the Appellant. The blood stained earth and the knife were sent for chemical examination and the report of the chemical examiner (Ex. Ka-13) dated 26.4.1995 indicates that it could not be deciphered that the recovered knife contained human blood. The autopsy on the dead body of Sagir was conducted on 5.8.1994 by Dr. Alok Shukla P.W. 6 who found four incised wounds on the body of the deceased. Theses injuries were:

Incised wound 6 cm. x 2 cm. on neck trachea deep on right side neck 6 cm. above clavicle bone.

Incised wound 1.5 cm. x 1 cm. skin deep on the right side neck 2.5 cm. above injury No. 1.

Incised wound 1.5 cm. x 1 cm. muscle deep 1.5 cm. Above clavicle bone.

Incised wound 2 cm. x 1 cm. muscle deep left side chest just below the clavicle bone in the middle.

The carotid artery and neck muscles and trachea were found cut on internal examination.

After completing the investigation the Investigating Officer submitted the charge-sheet (Ex. Ka-12) on 18.8.1994 against the Appellant.

During the trial to bring home the guilt of the Appellant the prosecution examined six witnesses out of whom Allaha Banda P.W. 1, Smt. Bano P.W. 2 (Wife of the deceased), Abid Raja P.W. 3 (Brother of the deceased and son of the Appellant) were witnesses of fact. Suresh Pal Singh P.W. 4 (Head Constable), Fahim Khan S. O. P. W. 5 (Investigating Officer), and Doctor Alok Shukla P.W. 6 (Post Mortem Doctor) were formal witnesses.

The defence of the Appellant u/s 313, Cr. P.C. was that of denial and false implication. He also denied dictating the F.I.R. and sending it for lodging through P.W. 1. He also stated that his injuries were examined at P.H.C. Khatauli. In his defence he examined Dr. Som Dutt Sharma D.W. 1 to prove his injury report which shows that the Appellant was examined on 5.8.1994 at 10.05 a.m. and had sustained an incised wound 3 cm. x 1.5 cm. x depth not probed on right side abdomen. The margins of the injury were clean cut and the injury was fresh in nature and was dangerous to life.

The trial Judge-1st Additional District and Session''s Judge, Muzaffar Nagar found the case of the prosecution proved beyond all reasonable doubt. He mainly relied upon the testimony of P.W. 2 Smt. Bano, wife of the deceased and daughter-in-law of the Appellant and found her to be wholly reliable witness. Relying on her testimony the trial court convicted the Appellant for offence u/s 302, I.P.C. and sentenced him to life imprisonment, which has resulted into this appeal.

We have heard Sri Vinay Saran, learned amicus curiae on behalf of the Appellant and the Sri Amar Jeet Singh, learned A.G.A. on behalf of State.

Sri Saran contended that in this case the prosecution has failed to bring home the guilt of the Appellant and he has been falsely implicated in the case. He contended that P.W. 2 Smt. Bano on whom the trial court has placed much reliance is not a reliable witness at all and no conviction can be recorded on her testimony. He contended that her evidence is so unnatural and surreal that it is hazardous to base any conviction on such an unreal testimony. He further contended that P.W. 3-Abid had turned hostile and did not support the prosecution case and hence the only evidence against the Appellant is that of P.W. 2 who is inimical, partisan and interested witness. He further contended that no independent witness had come forward to support the prosecution version and this fact shows the falsity of the prosecution case. He further submitted that the injury sustained by the Appellant was of such a nature that it could not have been manufactured and in fact the Appellant was admitted in the hospital in a critical condition as has been admitted by Investigating Officer P.W. 5 that he could record the statement of the Appellant only on 8.8.1994 as he was operated upon and was unconscious. He concluded by arguing that the impugned judgment cannot be sustained and deserves to be set aside and the appeal deserved to be allowed as the Appellant is entitled to acquittal.

Learned A.G.A. contrarily submitted that P.W. 2 is a natural witness and is the daughter-in-law of the Appellant and she had no motive to falsely implicate the Appellant if he was innocent. He further argued that the recovery of knife which was used in the murder from the house of the Appellant also proves his guilt. He further contended that the prosecution has proved its case beyond reasonable doubt against the Appellant and the appeal is meritless and deserves to be dismissed.

Considering the rival submissions, it is perceptible that in this case the only evidence against the Appellant is that of P.W. 2 Smt. Bano (wife of the deceased) as from the evidence of P.W. 1 Allah Banda and P.W. 3 Abid no finding of guilt can be recorded against the Appellant. So far as P.W. 1 is concerned, he is the village chaukidar who had taken the F.I.R. to the police station. He reached the house of Appellant after hearing the news of murder and had seen the Appellant in an injured condition sitting on a cot. He is not a witness of incident and he could not recognize the handwriting of the scribe Mahak Singh. He further deposed that the Appellant did not put his thumb impression on the report in his presence. He did not hear at the spot as to who caused the murder and he did not know about it even later on.

So far as P.W. 3 Abid is concerned he deposed that the deceased was his real brother and the Appellant is his father. He deposed that he was sleeping on the lower floor and the deceased and the Appellant were sleeping on upper floor of the house. He did not hear any commotion in the night and though he saw the torch light in the night but besides that he did not see any thing else. He did not go on the roof nor did he see his brother in an injured condition and his father with knife. He was declared hostile by the prosecution and was cross-examined. In his cross-examination he stated that his statement u/s 161, Cr. P.C. was recorded by detaining him at the police station for four days by the Investigating Officer and by assaulting him. He also denied outrageous assault on P.W. 2 by his father. Thus, his evidence also does not help the prosecution any farther and in fact demolishes its version. Thus, the only witness of fact who remains is P.W. 2, the wife of the deceased and daughter-in-law of the Appellant.

P.W. 2 Smt. Bano--the star witness of the prosecution has stated in Court that the Appellant was a gambler and he wanted the deceased to get his another son bailed out who was arrested in truck loot to which the deceased was not agreeing. At the fateful night of the incident the Appellant tried to molest her so she called the deceased who gave a beating to the accused Appellant and then both of them went on the roof to sleep. This statement of the P.W. 2 regarding molestation overtures by the Appellant is very unconvincing, wholly unnatural and does not inspire confidence at all. If the statement of P.W. 2 is correct, there was no occasion for the deceased to leave his wife alone. Moreover, the statement of the P.W. 2 that she and her husband slept separately and her Devar used to sleep with her is also very un-natural and unconvincing.

The statement of the doctor indicates that the deceased was aged about 30 years and so was P.W. 2, and thus in that age it is difficult to believe that the deceased would leave his wife to sleep with his younger brother and he himself would not sleep with her. Moreover, P.W. 2 is handicapped and that was all the more reason for the deceased not to leave her alone during night. Further, we find that according to her the first discloser statement of the Appellant to the arrived villagers was that two persons had assaulted him and Sagir Ahmad. This statement of P.W. 2 is self-explanatory which shows that the version of the Appellant is correct that two unknown persons had assaulted them. It is important to note that the room where the deceased and the Appellant were sleeping had two openings but had no doors fixed in them and so it was not impossible for an outsider to have an access inside the room. She also stated that the Appellant had knifed himself also in stomach. On hue and cry raised by her at the time of molestation attempt, one or two people had come there but she did not know them. Thus the overall assessment of her evidence shows that this witness is playing on her imagination and in fact she did not witness any incident. Hence, we are unable to treat her a wholly reliable witness and to place reliance on her testimony.

P.W. 5 Investigating Officer of the case has stated that he had recovered the knife at the pointing out of P.W. 3 Abid from a box from the house of the Appellant which was got opened by P.W. 3 himself by the key in his possession and so this recovery cannot be utilized against the Appellant as the same was not made u/s 27 of the Indian Evidence Act and hence we discard the same from consideration. Further, the said evidence has been belied by P.W. 3 himself as he had given statement against the said discovery and denied it completely. There is no other evidence on record against the Appellant. Consequently, we cannot accept on the above judicial scrutiny that the prosecution had succeeded in bringing home the guilt of the Appellant.

Resultantly, this appeal is allowed. The conviction of the Appellant u/s 302, I.P.C. with sentence of life imprisonment recorded by the trial court through the impugned judgment is set aside. The Appellant is acquitted of the charge levelled against him. He is reported to be in Jail. He shall be set at liberty forthwith if he is not wanted in any other case. The C.J.M., Muzaffarnagar shall report compliance within one week.

Sri Vinay Saran, advocate who argued the appeal, as amicus curiae shall get Rs. 1,500 as his fee.

Certify the judgment to the lower court immediately.