Rajendra Singh vs State of U.P.

V.P. Mathur, J.—This appeal is directed against the judgment and order passed by Mr. G. R. S. Tandon, the then 1st Additional Sessions Judge, Muzaffarnagar on 2861978 whereby the learned Judge has convicted Rajendra Singh appellant on a charge under Section 302 read with 34 of the Indian Penal Code and sentencsd him to imprisonment for life.

In brief the prosecution story was that the deceased Hoshiar Singh a brahman of villagekinoni, was present in the night between 19/20101970 in the tubewell room outside the village in the Jungle, because the tubewell was running and his son Satypal (PW 1) who is the first informant; was present in the field nearby where the water from tubewell was going. Two other persons Ram Singh and Jagdish Prasad were also present at their respective tubewells giving water to their agricultural fields. At the precise time when this occurrence took place, Jagdish Prasad (PW 6) had also come from his tubewell to the place where Ram Singh (PW 3) was sitting and enjoying Hukka Suddenly Hoshiyar Singh cried. Theories were heard by Satya Pal (PW 1) and the two other witnesses Sam Singh and Jagdish Prasad and they immediately rushed towards the scene of occurrence. The distance of the place of occurrence from the place where Satya Pal was present inside the field, has not been disclosed as 60 to 70 yards in the evidence and it appears that the place where Jagdish and Ram Singh were sitting and smoking was between 60 to 85 paces away from tae tubwell of Hoshayar Singh and it has also been variously stated by the witnesses that Satya Pal was present not very far away from this place. It is contended that by the time that the witnesses reached a few paces from the kotha of Hoshiyar Singh, they saw the appellant Rajendra Singh armed with a Palkati along with an unidentified person who was armed with a kanta delivering blows to Hoshiyar Singh, who was sitting on his charpoy. After committing the murder of Hoshiyar Singh, these two persons ran away from the spot, but the witnesses could see and identify Rajendra Singh; Then Ram Singh was sent to the village to bring people who collected on the spot at about 5 in the morning and Gokul was picked up from out of them to scribe the report at the dictation of Satya Pal. With this report Satya Pal proceeded for the Police Station of Tatavi District Muzaffarnagar within the area of which village kinoni lies and lodged the first information report at 9.15 a.m. on 20101977.

Station Officer Tetavi M. Ratan Singh (PW 8) along with SubInspector Har Phool Singh (PW 5) came on the scene of occurrence without Against the judgment and order dated 28678 passed by Shri G. R. S. Tandon, 1st Addl. Sessions Judge, Muzaffar Nagar in Sessions Trial No. A431 of 1977 losing much of time and it was Har Phool Singh who prepared the inquest memo while Ratan Singh proceeded with the rest of the investigation including the recording of the statements of the witnesses and preparation of the documents. The dead body was brought to the mortuary on 20101977 where post mortem examination was conducted by Dr. S.L. Gupta (PW 2) at 2.00 p. m. vide, report Extka2. The deceased Hoshiyar Singh had suffered so many as 13 injuries on his person, which according to the post mortem report are as follows:

Incised wound 3" X 1/2" x bone deep on left side skull 21/2" above the ear anterior posterior.

Incised wound 1" X 1/4" X bone on left side skull 1" behind the ear, vertebrae.

Incised wound 3/4" X 1/10" X muscle on left side forehead 1/2" above the eye brow horizontal.

Incised wound 3/4" X 1/4" x bone of the right mindable vertical, fating down wards, underlying mandible in clean cut.

Incised wound 21/2" x 1/4" x muscle on the submontat region 3/4" below point of chin, oblique, talking down ward to the right.

Incised wound 21/2" x 1" X muscle on the posterior of neck just above supra sternal notch, transverse, tailing on the left side the medial end of right collar bone is clean cut underneath injury.

Incised wound 1" x 1/10" x muscle on the front of manubrium steoni 1/4" below injury No. 6 transverse. Tailing on left side.

Incised wound 11/2" x 1/2" X bone on the post of manubrium sternal 3/4" below injury No. 7 transverse, right angle in contused, fating on right side underlying manubrium in clean cut completely.

Incised wound 11/2'' x 1/2" X bone on the front of body of sternum 1''''below injury No. 8. Transverse, right angle is contused. Fatting out side. Outer fable of the underlying sternum is clean cut.

Linear abrasion 1" on the middle 1/3 of right collar bone vertebrael.

Incised wound 3" x 1" X bone on back of left hand transverse, 2nd to 5th metacarpal shuffs clean cut completely.

Amputation of the left index finger at the level of metacarpal phalange joint. With the fingers is attached only a tag of skin left on the front part. Margin on either side clean cut. 13. Incised wound 1" x 1/2" x bone on the part and inner aspect of persugnal phalnyx of left thumb, transverse, underlying bone clean cut completely.

The stomach and its contents contained 2 ozs. of fluid material, while the two intestines were half full.

In order to prove its case, prosecution has examined in all eight witnesses and out of them Satya Pal (PW 2) and Jagdish Prasad (PW 6) are the eyewitnesses of the occurrence, while Dhanpat (PW 7) has been examined to show that there was a motive which impelled the appellant to commit this occurrence.

The occurrence undoubtedly took place at dead of night. According to (PW 1) Sat Pal it was some where in between 12 mid night and 1.00 a. m.

This is also the version given by the witnesses. The moon chart which we had an occasion to look into, shows that moon had already set in the night of 19101977 at 11.40 p.m. (2340 hours). Obviously at the time when the occurrence took place, there was no moon light available. In all such cases in which the occurrence takes place during night, the question of light is always of prime importance and the prosecution simply blames the Investigating Officer in this for his lack of care, when he has failed to mention any light either in his inspection note or in the site plan. He has of course supported the other prosecution witnesses by saying, that there were two bulbs presentone inside the kotha where the occurrence took place and one above the roof. Be that as it may the site plan as well as the statement of PW 3 Ram Singh will show that this kotha is a low building, which is only 5 or 7 feet in height and in front of it towards east where the only door exists, there is a Chhappar which is about 21/2 feet wide. A Chappar is never a straight thing it always has a slant and therefore, we are unable to appreciate the prosecution witnesses when they say that they could see what was happening inside the koiha, even when the light might have been there, due to this chappar. It may also be mentioned here that according to PW 3 Ram Singh, alround the place of occurrence up to a long distance, there were standing crops of Chart, Makka and Eekh and the height of chad crops was of a man''s height, while the makka crop was slightly lower in height than the height of a man and eekh crops were even higher than the height of a man. This is the situation, which was present allround the scene of occurrence at the time when this occurrence allegedly took place.

There can be no dispute or doubt about the place of occurrence. The murder undoubtedly took place inside the tube well Kotha Hoshiyar Singh, because the dead body was found there. The blood was taken from there and it was sent to the Chemical Examiner also. The place of occurrence is not disputed, even by the appellant. But the question is whether in the circumstances that were available on the spot, the witnesses could have seen the culprits and identified them.

Sat Pal (PW 1) says that the place where he was irrigating his fields is about 60 to 70 yards away from his tubewell. He does not say as to on which side of the tubewell, this place is. He says that he heard the cries of his father, raised an alarm himself and rushed. Ram Singh (PW 3) tries to support Sat Pal and says that he also heard the cries of Hoshiyar Singh and he along with PW 6 Jagdish Prasad ran, fast following Sat Pal. During crossexamination however, he has tried to add that he had heard cries of Hoshiyar Singh as well as of his son, but he has not spoken about having heard the cries of Satpal in his statement made to the Investigating Officer. In this manner these two persons along with Jagdish Prasad ran towards the place of occurrence. According to Ram Singh, from a distance of about 15 to 20 yards, he challenged the culprits and then the culprits came out and ran away. It means, therefore, that according to these two witnesses inspite of the fact that Hoshiyar Singh had cried and in response Satpal had also raised an alarm, the culprits whoseover they may be, were foolish enough to remain inside the kotha till the arrival of the witnesses. The only object could be to expose themselves to view. With this lack of intelligence no body can be credited.

Jagdish Prasad (PW 6) state; that he heard the criss of Satpal only and did not hear any body else crying and by the time that he reached the place of occurrence he saw two persons running away. We could not identify any one of them. It was Satpal and Ram Singh who said that they had identified one of the culprits as Rajendra Singh and he promptly agreed with them. This was his statement on the first date when he was examined in Court. On the next date, he took a some resault and started saying something different. Then he started dittoing the something as told by the two earlier witnesses and said that he also correctly identified Rajendra Singh and also saw actual assault on Hoshiyar Singh inside the kotha. In our opinion, the evidence of these three witnesses is unacceptable for the simple reason that there was no moonlight available and the light of the bulbs even it was present there, it could not have helped the witnesses in seeing that was happening inside the kotha and we also are of the opinion that the culprits would not have remained inside the kotha or near about the scene of occurrence even after hearing the challenge given by Satpal. The site plan will further show the place where Ram Singh and Jagdish Prasad are said to have been sitting as shown by letter ''B''. This is towards the south east of the kotha of the deceased. Naturally when these two witnesses allegedly rushed on hearing the cries, they would have gone towards the north from where they were and it has also come in evidence that Satpal was also following the same rasta a little a head of them. Naturally in this situation the culprits on hearing the cries of the witnesses, would have managed to run away and in that processes their backs would have been towards the witnesses and not their faces and they could not be recognised. The testimony of Jagdish Prasad appears to be correct when he says that the witnesses could at the most see that two persons were running away from the kotha of the deceased and naturally it was impossible to identify them and this is the reason why he in the first examination inchief outright said that he could not identify any one of them and not even Rajendra Singh. PW 7 Dhanpat Sharma was examined to prove that a starter of the tubswell engine was stolen from the kotha of the deceased some time back and 3 or 4 days after this theft Satyapal had gone to Rajendra Singh in presence of this witness to pay him Rs. 60 which was deemed by way of compensation for the return of the starter, but he also says that no payment was made in his presence. There is no other evidence on the record which is worth reliance to show that in the matter of theft of the starter there was any suspicion on the appellant Rajendra Singh or that he ever demanded any money by way of ran son or that he was paid. Also there is nothing except the testimony of Satyapal to show that any threat was given to Rajendra Singh to the effect that a police report shall be made against his demand for ranson. In our opinion even the story forming the basis of the motive is not made out.

There is extreme delay in the lodging of the report. The occurrence took place near about mid night between 19/20101977. The distance of the thana is only six miles. The first information report was lodged by 9.15 a.m. after almost 9 hours. The evidence is that the village people had already collected on the tube well at the instence of Ram Singh early in the morning at about 5 a.m and inspite of the fact that Gokal had already scribed the first information report at the dictation of Satpal, Satpal did not think it proper to proceed for the thana atonce and lodge the report without delay. There is also another fact which may also be noted that Satpal has admitted that he owned a cycle and that in the village there are 20 to 22 horse tongas which were being also used by village people in regularly coming to the village and going to Muzaffarnagar. No explanation of the delay is forth coming.

One thing very strange about this case is that although in the first information report a slight reference has been made a bout some enmity with Rajendra Singh without detailing it out, there is absolutely no mention of the weapons which the culprits used at the time of the occurrence. If it was a fact that the witnesses had sesn the actual assualt on Hoshiyar Singh and also the culprits with their weapons, there was no reason why the palkati alleged to be with Rajendra Singh and the khata with the other unknown assailaqt were not mentioned in the first information report

Considering the entire facts and circumstances of the case we are of the opinion that the prosecution has miserably failed to prove its case satisfactorily beyond doubt and the conviction of the appellant Rajcndra Singh was neither justified nor called for.

In the result the appeal is ailowed. The conviction of the appellant Rajendra Singh under Section 302/34, IPC and the sentence of imprisonment for life awarded to him are both set aside. He is not found guilty of the offence with which he has been charged and shall stand acquitted. He is on bail and need not surrender. His bail bonds and sureties shali stand discharged.