Rajendra Pasi vs State of U.P. and Others

Rakesh Tiwari, J.—Heard learned Counsel for the appellant and Km. Meena, learned AGA for the respondent-State. Perused the records. This Criminal Appeal is preferred challenging the judgment and order dated 16.10.2014 passed by Special Judge (SC/ST Act), Deoria in Sessions Trial No. 69 of 2001 (State v. Saral Yadav and others), arising out of Case Crime No. 36 of 1994 under sections 302, 201 IPC and section 3(2)(5) of SC/ST Act Police Station Tarkulawa, District Deoria. By the aforesaid judgment impugned, the Trial Court has acquitted the accused Saral Yadav, Upendra Gaur and Balister Gaur - opposite party Nos. 2 to 4 receptively in the aforesaid S.T. No. 69 of 2001.

The order impugned has been assailed by the learned Counsel for the appellant on the grounds that the acquittal of the aforesaid persons is against the evidence on record as the Trial Court, while acquitting the accused, has neither considered the evidence collected by the Investigation Officer during the course of investigation nor has considered the statement of witnesses recorded during the trial. It is argued that there is an undisputed last seen evidence against the opposite party Nos. 2 to 4, who have also been named in the FIR, and that all the prosecution witnesses have supported the prosecution version as the impugned judgment of acquitting the accused opposite party Nos. 2 to 4 being against the evidence on record.

The appellant prays for setting aside the judgment impugned and further for conviction and sentencing of the opposite party Nos. 2 to 4 in S.T. No. 69 of 2001 (State v. Saral Yadav and otters) arising out of Case Crime No. 36 of 1994 under sections 302, 201 IPC and section 3(2)(5) of SC/ST Act P.S. Tarkulawa, District Deoria.

In support of the case, prosecution examined PW-1 - the informant, PW-2 - his sister and PW-3 - his uncle, apart from other formal witnesses.

The learned Counsel for the appellant submits that prosecution had proved its version in the FIR that on 27.2.1994 at about 9 PM, Saral Yadav S/o. Shivnandan Yadav, Upendra Gaur S/o. Patru Gaur, of his village and Balister Gaur S/o. Bilayil Guar of village Kuchaya came to his house. They took his brother Basant with them on the pretext to see dance. When his brother did not return in the night, he in the morning went to the house of Saral Yadav and Upendra Gaur but they showed ignorance saying that they do not know where he is. Then at about 9 AM, on 28.2.1994, he heard that a dead body is in the wheat crop of the agricultural field belonging to Durga Gond. He went there and saw that the deceased was his brother having stale wounds inflicted by knife and that he has full belief that his brother has been murdered by aforesaid persons with whom his brother was seen going by his uncle Bhagwat.

Per contra, learned AGA has submitted that there is material contradiction in the statement of PW-1 and PW-2 as well as PW-3; whereas PW1 and PW2 have, in their evidence, stated that the dead body of Basant was found in the agricultural field; PW-3 stated that the body of Basant (since deceased) was found on canal road. According to learned AGA, question of incident had taken place on 27.2.1994 at 9 P.M., whereas ante timed FIR was lodged by the complainant on 28.2.1994. According to her, there is no motive for the accused persons for committing the offence.

Upon hearing the Counsel for the parties and on perusal of records, it appears that an FIR was lodged by informant that Basant, person belonging to Scheduled Cast was taken by the accused.

The complainant has examined himself as PW-1 In his statement before the Trial Court, reiterated the version of the FIR and further stated that at about 9 AM, on 28.2.1994, he heard that a dead body is lying in the field of wheat crop, near canal road. He with his sister and other persons of the village went there and found that the body of his brother Basant in the field. It was having injuries of knife on his neck, stomach, vest, chest and back. There was a pool of blood near the body. He dictated the written report to a traveller. After satisfying himself that his report has been correctly written on his dictation had put his thumb impression on it, and it was given by him at the police station. The Investigation Officer took the statement of the complainant and thereafter reached at the spot where the dead body was found. PW-1 further stated that his brother Basant (since deceased) had given Rs. 32,000/- to Saral Yadav (accused) for construction of house but on demand for return of the money, Saral Yadav dilly dallied the matter as he was known to indulge in theft, which was opposed by Basant.

PW-2 and PW-3, the sister and uncle of the deceased respectively, also deposed and gave similar statements before the Trial Court regarding going of Basant and of finding his body, substantively as was given by PW-1 - the complainant.

There is no eye-witness of the incident in the instant case. As regards motive is concerned, the statement of witnesses had been recorded in the Court after 15 years of the incident, that Basant (since deceased) had given Rs. 32,000/- to accused Saral Yadav, after keeping the agricultural field on mortgage. The Court of Session found that since there is no motive for murder of Basant in the FIR and there are different versions of motive suggested in the statement given by the witnesses of prosecution in their statement under section 161 Cr.P.C. as well as statement given by them before the Court. Therefore, the motive was not proved.

Ante-timing of FIR has been dealt by the Court below thus: -

On the question of last seen is concerned, the Court below on the basis of evidence came to the conclusion that admittedly the accused persons are said to have taken Basant from his ''house to see dance and his body was found in the agricultural field near canal road. However, no other person of the village has come out and saying that they had seen Basant in going with accused or had seen him at the place where he was alleged to be watching dance, which was an improbability. Merely because the accused taken Basant from his house to see dance in the village they cannot be held guilt, without any other supporting material, only on the basis of this incomplete evidence, which does not have nexus with the offence. It is lastly submitted that the injuries of knife on the calibre of the deceased were not explained. Even the knife, said to have been used in causing of injuries, could not be recovered, therefore, chain of circumstantial evidence is not complete, to point out guilt of the accused, or for the Court to come to a conclusion that it was only the accused, who could have committed the said offence. There is no witness of murder and the only evidence available on record is of last seen which is unsupported by any evidence leading to the conclusion that murder was committed only by the accused and no other. Hence this incomplete chain of evidence, which could not be linked by prosecution with the murder of Basant (since deceased) was not enough for conviction of the accused persons.

The Court below has taken into consideration the period 9.00 PM, when deceased alleged to have left the house with the accused to see the dance, upto 9.00 AM when his body was found and held that on the fateful night and the next day, Basant must have met number of persons, during dance or even before it when he had left with the accused. The evidence on record was insufficient to link the accused persons with the offence and murder of Basant.

The doctor who has conducted the post-mortem was also not produced. The Court below after relying upon a decision of Karnataka High Court in State of Karnataka v. Tulsidaran 2000 (4) Crimes 150, followed in State of Karnataka Vs. Sunagar Brothers, , held that the accused were liable to be acquitted. These decisions lay down that it is necessary for the Doctor to prove his postmortem report. In the instant case, PW-5 the Pharmacist had been produced by the prosecution for proving the postmortem report. He in his statement has stated that he does not recognise the handwriting of the doctor who had made the post-mortem report and is giving statement based on the documents in his possession. Therefore the Court below has rightly found that the post-mortem was not proved.

The material contradictions are apparent in the statements of PWs-1, 2 and 3. The motive provided by the prosecution is also at variance in the statement of its witnesses.

In the circumstances stated above, the Court below appeared to have rightly come to the conclusion that there is nothing to link the last seen evidence. Shubh Lal and Bhagwat, who are related to the complainant, are interested witnesses and are not independent witnesses. It is settled law that reasoning, which is more favourable to the accused should normally be adopted until and unless there is strong and corroborative evidence in the case of clinical evidence, to link the accused with the offence said to have been committed. For all the aforesaid reasons, the appeal is dismissed.