Sanjay Kumar vs State of U.P.

Virendra Kumar Dixit, J.—This criminal appeal u/s 374(2) Code of Criminal Procedure 1973 against the judgment and order dated 11.01.2007 passed by the learned Additional Sessions Judge Court No. 2, Lakhimpur Kheri in Sessions Trial No. 670 of 2003 whereby the Appellant has been held guilty of charge u/s 302 I.P.C. for committing the murder of Km. Manisha, aged about 7 years, the daughter of the informant and sentencing him for life imprisonment with a fine of Rs. 5000/-only, in default of payment of fine to undergo further rigorous imprisonment of one year.

Thumbnail sketch of the facts of the case is as mentioned hereinbelow:--

The complainant in the instant case is Jagat Pal Raidas who happens to be father of deceased Km. Manisha. The complainant lodged the F.I.R. in question at the police station Kotwali, Lakhimpur on 17.12.2002 at 8.25 a.m.

It is said that on 16.12.2002 he and his neighbours Tulsi Ram and Tula Ram were collecting greedfodder for animals from the field of one Ramadhar Verma and his daughter Km. Manisha was also plucking Bathua with him. At about 4.00 p.m. the accusedAppellant Sanjay Kumar, came there and called her daughter giving pretense of eating sugarcane and had taken her away. After sometime he heard the scream of his daughter as such all of them immediately rushed towards alarm. They entered in the sugarcane crop and saw that the accusedAppellant, Sanjay Kumar was inflicting injuries upon his daughter by the scythe (Hasiya) as such he alongwith Tula Ram and Tulsi Ram tried to apprehend Sanjay Kumar but he managed to escape from the spot alongwith scythe (Hasiya). He had the apprehension that the AppellantSanjay Kumar tried to commit rape upon her daughter and when she made alarm he committed murder of his daughter. Thereafter the complainant alongwith others lifted the body of deceased Km. Manisha and brought it at his house. Due to night and also nonavailability of transport he could not reach the police station for lodging of the F.I.R. Therefore, he lodged the F.I.R. on the next day i.e. on 17.12.2002 and the case was registered as Crime No. 1157 of 2002, u/s 302 I.P.C. and 3(2)(5), Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, (S.C./S.T.) Act, Police Station Kotwali Kheri, District Lakhimpur Kheri. The Circle Officer (District Kheri) as Investigating Officer after investigation filed the chargesheet against the accusedAppellant, Sanjay Kumar, u/s 302 I.P.C. and Section 3(2)(5) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, (S.C./S.T.) Act.

On the basis of the aforesaid chargesheet learned trial court on 22.07.2004 framed charge u/s 302 I.P.C. against the accusedAppellant, Sanjay Kumar, he pleaded not guilty and claimed trial.

During the trial the prosecution in support of its case examined in all five witnesses namely PW1, Jagat Pal Raidas, the complainant, PW2, Dr. S.K. Shukla, who conducted the post mortem of the deceased, Km. Manisha, PW3 Rajendra Prasad, witness of recovery of scythe (Hasiya) PW4, the Investigating Officer, Sri Digambar Kushwaha and PW5, SubInspector R.S. Sachan. The accusedAppellant Sanjay Kumar in his statement u/s 313 Code of Criminal Procedure denied the incriminating evidence appearing against him he pleaded that he has been falsely implicated in this case due to enmity and claimed to be tried. The accusedAppellant side in support of its defence examined one witness namely DW1, Ram Sagar Verma. The learned trial court on appraisal of entire documentary and oral evidence on record held that the charge u/s 302 I.P.C. was proved against the accusedAppellant, Sanjay Kumar who was held guilty of the aforesaid charge and he was sentenced as aforesaid.

Feeling aggrieved by the judgment and order of conviction the accusedAppellant has preferred this appeal before this Court.

We have heard Sri R.S. Tomar, learned Counsel for the Appellant and learned Additional Government Advocate and perused the trial court record.

Learned Counsel for the Appellant, Sri R.S. Tomar contended that the evidence produced in this case is not sufficient and convincing to warrant the conviction of the Appellant. It was submitted that the prosecution failed to make out any case against the accusedAppellant. To crop up this submission he argued that the First Information Report is antetimed; material witnesses are not produced; recovery of scythe itself doubtful; recovered weapon scythe (Hasiya) was not sent for chemical examination and major contradictions between post mortem report and inquest report. Learned Counsel also contended that there is no reliable evidence brought on record to connect the Appellant with the crime, and therefore, he could not be convicted for the offence publishable u/s 302 I.P.C. He further submitted that the learned trial court rendered the impugned judgment merely on the basis of surmises and conjuncture resulting in gross miscarriage of justice in convicting the Appellant. He next submitted that the entire story has been set up for taking aid from Government and according to the informant he got Rs. 75,000/from the Government as compensation. The accused Appellant who is an innocent person, has not committed any crime and he deserves to be acquitted.

Per contra learned A.G.A. appearing on behalf of the State, has contended for correctness of the view taken by the learned trial court and argued that the testimony of the prosecution witnesses remained intact. That the prosecution evidence on record proved the prosecution case beyond any shadow of doubt and the sentence of conviction awarded to the Appellant by the learned trial court does not require any interference by this Court.

In order to appreciate the aforesaid rival contentions of the learned Counsel for the parties, we have independently scrutinized the oral and documentary evidence on record with utmost care.

10.(i) PW1, Jagat Pal Raidas, the complainant who has stated on oath that on the day of the occurrence, he and his daughter Km. Manisha aged about 7 years went to the field of one Ramadhar Verma. His daughter was plucking Bathua and he was collecting greenfodder for the animals. Tula Ram and Tulsi Ram were also collecting greenfodders for animals with him in the field of Ramadhar. At about 4.00 p.m. the Appellant Sanjay Kumar came near the sugarcane field and has taken away his daughter Manisha after giving pretence of eating sugarcane. After sometime he heard the scream of his daughter. He alongwith Tula Ram and Tulsi Ram ran towards the sound of alarm and entered into the sugarcane crop. They saw that the accusedAppellant, Sanjay was inflicting blows upon his daughter by the scythe. The accusedAppellant managed to flee away from the spot. His daughter died on the spot. Due to night and nonavailability of transport he could not go to the police station on the same day. Next day he went to the police station and lodged the F.I.R. by submitting written complaint which is Ext. Ka1.

(ii) In the crossexamination he had stated that at the time of sun set he went to collect green fodder for animals. He collected green fodder rapidly and returned to his house. That field of sugarcane crop was situated in north west side of the land where he was collecting green fodder for the animals and at the time of occurrence he was collecting green fodder near west south boundary mark of the field and his daughter was plucking Bathua near the east north boundary mark of the land. These two places were shown by him to the sub Inspector. When he heard the cry of his daughter at that time sun was setting. After hearing the cry of his daughter he ran towards the east side. He heard the sound of alarm only once. He heard the cry of his daughter at the place where he was plucking green fodder for the animals. He started searching of his daughter and when he heard the sound of trampling of sugarcane he entered into the field of sugarcane and he saw the dead body of his daughter and told about the incident to the villagers. He also brought the dead body of his daughter from the place of occurrence to his house with the help of the villagers. After consulting with his family members in the presence of many other villagers and because the accusedAppellant has killed his daughter it was opined that the F.I.R. should be registered against him. He did not call village watchman in the night. He went to the police station to lodge the F.I.R. at about 78 a.m. and reached there after about 21/23 hours. At the police station he narrated the story of occurrence to the SubInspector. The SubInspector went to his house and prepared the papers. The SubInspector reached his village near about 1.00 p.m. or 1.30 p.m. and after that he did the Likhapadi. That at the police station SubInspector has taken his thumb impression on a paper.

11.(i) PW2, Dr. S.K. Shukla, who was posted as Orthopedic Surgeon at District Hospital, Lakhimpur Kheri stated on oath that he conducted the post mortem of the body of the deceased, Km. Manisha and the following injuries were noticed on the person of the deceased:-

1) Punctured wound 1.5 cm. X 1 cm. X muscles and vertebra deep on left side of neck, 3 cms. below left ear underlying carotid found cut.

2) Punctured wound 1.5 cm. X 1 cm. X muscles X vessels deep on left side of neck and front 5 cms. below chin from midline underlying carotid and jagular vein found cut.

3) Punctured wound 1.5 cm. X 1 cm. X muscles and vessels deep on right neck, 2 cm. from midline underlying right carotid cut.

Vaginal smear prepared and sent to Pathologist, District Hospital Kheri for examination.

He has prepared the post mortem report of the deceased Km. Manisha which is Ext Ka2. He has further stated that the death of the deceased was caused due to shock and haemorrhage as result of antemortem injuries sustained by her. The death of the deceased could be possible by the injuries caused by scythe (Hasiya) and the time of death could be at about 4.00 p.m. on 16.12.2002. The age of the deceased was near about 7 years at the time of her death.

(ii) In his crossexamination the witness stated that injury Nos. 1, 2 and 3 were caused by sharpedged pointed weapon. These injuries could also be caused by spear. No other injury was found on her body except above mentioned three injuries. That the time of death of the deceased could be at 8.00 p.m.

PW3 Rajendra Prasad, who is said to be witness of recovery of scythe (Exhibit1) stated on oath that on 22.12.2002 SubInspector of police came to his village alongwith the AppellantSanjay and asked the Appellant before him about the scythe which was used in the commission of crime. He further stated that the scythe (Exhibit1) was neither recovered nor it was sealed in his presence. At this stage, the witness was declared hostile by the prosecution.

(ii) In the crossexamination by learned Counsel for the accused, the witness stated that the police came to his village on the next day of the occurrence. The accusedAppellant was in his house right from the day of occurrence. The police apprehended Sanjay from his house, thereafter, the police prepared the inquest report of the dead body of the deceased. In his crossexamination he has also stated that the villagers who went to search the deceased brought the body of the deceased in the night at about 11.00 p.m.

PW4, Digambar Kushwaha, who investigated the case stated that he recorded the statements of the witnesses and also inspected the place of occurrence. He prepared the siteplan of the place of the occurrence. The siteplan of the place of occurrence is Ext. Ka4. Accused Sanjay Kumar was arrested by the Inspector on 21.12.2002. He recorded the statement of accused Sanjay. Accused, on 22.12.2002 Sanjay told that the scythe used for the murder of Manisha can be recovered on his pointing. The scythe (ExtI) was recovered from the sugarcane field on the pointing out of the accusedapplicant on 22.12.2002 in the presence of publicwitnesses Vinod Kumar and Rajendra Kumar and other police personnel. Recovery memo of scythe (ExhibitI) was prepared by SubInspector R. S. Sachan in the presence of witnesses on his dictation.

(I) PW5 SubInspector, R.S. Sachan, stated on oath that he was posted as SubInspector at Police Station Lakhimpur Kotwali on 17.12.2002. The F.I.R. was recorded at the police station on 17.12.2002. He went at the place of occurrence on directions of Circle Officer, Lakhimpur. He prepared inquest report (ExtKa10) of the deadbody of Km. Manisha before the witnesses and sealed the deadbody of Km. Manisha and handed over to C/Kailash Pratap Singh and village Chaukidar Ram Pal in sealed condition to carry to the hospital for post mortem. He also prepared photolash, challanlash, letter to R.I., letter to C.M.O for postmortem and specimen seal. These documents are in his hand writing and signatures which are marked from ExtKa11 to Ext. Ka15. He also took plainsoil and bloodstained soiled from the place of occurrence and prepared the memo in his hand writing and under his signatures which is marked as Ext. Ka5.

On 22.12.2002 the scythe (ExtI). was recovered from the sugarcane filed on pointing out of accused Sanjay. It was blood stained. Recovery memo of scythe was prepared by him in the presence of witnesses on the dictation of the Investigating Officer at the place of recovery.

(ii) In crossexamination the witness stated that inquest report (Ext. Ka10) of the dead body of the deceased was prepared by him on the oral direction of Investigating Officer. He did not obtain the signatures of Investigating Officer on the inquest report. The inquest report was prepared at the residence of the complainant. Ten injuries were found on the body of the deceased. He had not taken in possession the blood stained clothes of the deceased. He went at the place of occurrence with the Investigating Officer. The accused was not arrested by him.

D.W.1 Ram Sagar Verma stated on oath that the informant Jagat Pal and accused Sanjay are residents of his village. On the day of occurrence Jagat Pal and one Tula Ram worked at his house from 8.00 a.m. to 6.00 p.m. Sanjay was also working with Jagat Pal. He paid the wages to Jagat Pal and Tula Ram at 6.30 p.m. He also paid Rs. 400/only as wages of Sanjay to Jagat Pal. Near about after half an hour he heard the noise of the villagers that wolf has taken away Manisha, the daughter of Jagat Pal. He went with Jagat Pal in search of Manisha. The dead body of Manisha was found in the sugarcane crop of Santu at about 11.00 p.m.

At the very outset, before proceeding to consider the arguments of learned Counsel for the accusedAppellant and learned Additional Government Advocate, we feel it imperative to mention the observations made by the Hon''ble Apex Court in the case of Ashish Batham Vs. State of Madhya Pradesh, of the judgment: "Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between may be true and must be true and this basic and golden rule only helps to maintain the vital distinction between conjectures and sure conclusions to be arrived at one the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."

(a) In the instant case It has been argued by the learned Counsel for the Appellant that the F.I.R. is antetimed. We have carefully considered the aspect whether the F.I.R. is antetimed. From perusal of the F.I.R. (ExhibitKa8) it transpires that the distance of police station from the place of occurrence is about 16 kilometers and the F.I.R. was lodged at 8.25 a.m. on the next day of occurrence i.e. on 17.12.2002. The informant PW1, Jagat Pal has stated that on the next day of the occurrence he went on foot to lodge the F.I.R. at about 78 a.m. in the morning and it took about 2 1/2 3 hours in reaching the police station meaning thereby he reached the police station between 9.30 a.m. 11.00 a.m. It is very natural that if a person travels on foot 16 kms. and if the informant, as stated by him, has started from his house in the morning at about 78 a.m. then in normal course he will reach police station between 9.3011.00 a.m. it creates doubt about the timings of lodging of F.I.R. In view of the statement of informant PW1, Jagat Pal, we are of the considered view that the F.I.R. was lodged antetimed.

(b) There are major contradictions in the prosecution story itself. The informant, PW1, Jagat Pal has stated that after hearing the scream of his daughter he rushed towards the field of sugarcane and saw that the accusedAppellant was inflicting injuries upon his daughter Km. Manisha by the scythe. But in the crossexamination he has stated that when he reached the spot he saw the dead body of his daughter. PW1, Jagat Pal has further stated that he saw the dead body of his daughter from the distance of 2025 paces whereas in the site plan (Ext Ka4) prepared by the Investigating Officer Sri Digambar Kushwaha, the distance between the informant and other witnesses and the place of occurrence is shown about five paces. We found major discrepancies in the examinationinchief and crossexamination of P.W.1.

(c) According to the prosecution story there were three eye witnesses of the occurrence namely Jagat Pal, Tulsi Ram and Tula Ram. But the witnesses Tulsi Ram and Tula Ram were discharged by the learned trial court on the application of informant himself. Thus there is no eye witness account of the occurrence except the sole testimony of the informant PW1, Jagat Pal who is father of the deceased. It is well settled law that the evidence and credibility of eye witness cannot be discarded merely on the ground that he is either partitioned or interested or closely related to the deceased. But on the same time it is the pious duty of the court to consider the testimony of sole eye witness with utmost care.

(d) In the inquest report (Exhibit Ka10) it was found that there were ten injuries on the external part of the body of the deceased. But in the post mortem report (Exhibit Ka2) only three injuries as punctured wounds have been mentioned. PW2, Dr. S.K. Shukla, who has conducted the post mortem of the body of the deceased has stated that he has noticed only three punctured wounds injuries on the person of the deceased and in his crossexamination he has categorically stated that no other injury was found on her body. It creates doubt about the number of injuries found on the body of the deceased and in the result genuineness of inquest report and the post mortem report itself is doubtful.

(e) According to the prosecution story there were two witnesses namely PW3, Rajendra Prasad and one Vinod Kumar of the alleged recovery of scythe (Ext1) which was used in the commission of crime. From the prosecution side only one witness namely PW3 Rajendra Prasad was produced who has stated on oath that the scythe Exhibit1 was neither recovered nor it was sealed in his presence. The witness was declared hostile by the prosecution. The witness in his crossexamination has stated that the police apprehended the accusedAppellant from his house and thereafter the inquest report of the dead body of the deceased was prepared. He also stated that the accusedAppellant was in his house right from the day of occurrence. Though the witness PW3, Rajendra Prasad has been declared hostile but it is well settled law that his entire testimony cannot be discarded at all. PW4, Investigating Officer Sri Digambar Kushwaha and PW 5, Sub Inspector Sri R.S. Chauhan stated on oath that on 22.12.2002 the scythe (Exhibit 1) was recovered on the pointing out of accusedSanjay from the sugarcane field of one Santu in the presence of public witnesses namely Rajendra Prasad and Vinod Kumar. The recovery witness of the scythe PW3, Rajendra Prasad has not supported the case of prosecution and has stated that the scythe (Exhibit1) was not recovered in his presence while the other witness Vinod Kumar was not produced by the prosecution to corroborate the version of police officials. PW3, Rajendra Prasad, has stated that the police arrested the accused from his house on 17.12.2002 at about 2.30 p.m. and thereafter the inquest report was prepared. The alleged recovery was made from the sugarcane field after six days which is an open space assessable to public and which was very close to the place of occurrence where the dead body of the deceased was found. It seems to be unnatural that the police officials could have missed the weapon and would wait for six days, when the purported information was given by the accused, clearly not believable. We are of the considered view that the recovery of the scythe (ExhibitI) as stated by the prosecution is doubtful.

(f ) The alleged scythe (Exhibit1) used in the commission of crime was not sent for chemical examination though it was stated by the Investigating Officer, PW4 that blood stained scythe (Exhibit1) was recovered on the pointing out of accusedAppellant. For the reasons best known to the prosecution the scythe (ExhibitI) was never sent to Forensic Science Laboratory. It indicates the carelessness and negligence on the part of the Investigating Officer and it also creates doubt whether the recovered scythe (Exhibit1) had the stains of human blood specially in the facts and circumstances of the case when the recovery witness of scythe (Exhibit1) PW3 Rajendra has not supported the prosecution case.

(g) The Investigating Officer, PW4, Sri Digambar Kushwaha, stated in his crossexamination that the F.I.R. (Exhibit Ka8) which was lodged on 17.12.2002 was sent by post to the court concerned and was received by the court on 04.01.2003. He has also stated that the F.I.R. (Exhibit Ka8) has signed but the date is missing under his signature which also creates suspense about the actual date of sending the F.I.R. to the court concerned.

(h) The informant P.W.1 Jagat Pal stated that he had the apprehension that the Appellant Sanjay Kumar tried to commit rape upon his daughter and when she made alarm he committed murder of his daughter, Km.

Manisha. Suspicion against the accused on the basis of his motive to commit the crime cannot by itself lead to believe the prosecution story. He has further stated that the dead body of the deceased was found by the informant and villagers in late night from the sugarcane filed and was brought to house of informant and after consultation, the F.I.R. was lodged on the next day against the accusedapplicant. The witness also stated that he did not call the village watchman in the night. It creates suspicion over the genuineness of truthfulness of the story narrated in the F.I.R.(Ext. Ka8).

(i) The post conduct of the accused is also relevant factor to adjudge his complicity in the crime. In the instant case PW3, Rajendra Prasad stated that the accusedAppellant was present in his house right from the day of occurrence. That the police has arrested him from his house on the next day of occurrence although the Investigating Officer PW4, Sri Digambar Kushwaha, stated that the arrest of the accusedAppellant was made on 21.12.2002 but he did not speak about the place from where the accusedAppellant was arrested. The accusedAppellant is the resident of the village where the crime was committed. There is no evidence on record to show that the accusedAppellant absconded from his village after the murder of the deceased, Km. Manisha and as such the conduct is suggestive innocence of the accused. If the subsequent conduct of the accused is at all any indication to his guilt or innocence, post crime conduct of the accused is also wide inconsistent with the guilt of the accused Appellant.

(j) The accused-appellant in his statement u/s 313 Code of Criminal Procedure stated that he was involved in this case due to enmity. He has also stated that he and the informant Jagat Pal were doing labour work at the house of one Ram Sagar Verma who paid his wages of labour work to the informant Jagat Pal but even on demand the informant had not paid it to him and due to this enmity he was falsely implicated in this case. In support of his statement D.W.1 Ram Sagar Verma was examined and he has also stated that he paid the wages of accusedAppellant Sanjay to the informant Jagat Pal. It has been argued from the Appellant''s side that the alleged occurrence took place in the night and nobody had seen the occurrence. In support of his arguments it was submitted that in normal course the injuries on the neck of the deceased shown in the post mortem report could not be caused by scythe and that P.W.2 Dr. S.K. Shukla who conducted the postmortem of the dead body of the deceased stated that the injuries could also be caused by spear and time of death of the deceased could be at 8 p.m.

In the case of Ramesh Babu Rao Devanskar and Ors. v. State of Maharashtra reported in (2009) 1 SCC (Cri) 212, it was observed by the Hon''ble Apex Court that "Enmity, as is well known, is a doubleedged weapon. whereas existence of a motive on the part of an accused may be held to be the reason for committing crime, same time may also lead to false implication.

In view of the facts and circumstances of the case we are unable to accept the submissions of learned Additional Government Advocate appearing for the Respondent State. It is difficult for us to come to the conclusion that it was the Appellant and only the Appellant who was responsible for the murder of the deceased.

The learned Sessions Judge committed a serious error in passing the impugned judgment of conviction and sentence in so far he failed to get into consideration the observations made above.

As rightly contended by the learned Counsel for the Appellant there are several discrepancies, major contradictions and shortcomings in evidence as noticed by us considerably corrode credibility of the prosecution version. On consideration of the totality of the facts and circumstances of the case, we are of the considered view that the prosecution has not established the accusations against the accusedAppellant beyond reasonable doubt and consequently he is entitled to be acquitted.

For the aforesaid reasons, the impugned judgment of conviction and sentence cannot be sustained and it is set aside accordingly. The appeal is allowed. The Appellant who is in custody is directed to be set at liberty and released forthwith unless wanted in connection with any other case.

Office is directed to communicate this order to the court concerned within two weeks along with lower court record.