Sarwan and Others vs State of U.P.

Surya Prasad, J.—This is a criminal appeal against the judgment and order dated 28th November, 1979 passed by the then learned IV Additional Sessions Judge, Agra, in Sessions Trial No. 269 of 1978 convicting and sentencing the Appellants u/s 302 read with Section 149 IPC to undergo imprisonment for life, u/s 147 IPC to 6 months rigorous imprisonment and u/s 148 IPC to one year rigorous imprisonment. All the sentences were directed to run concurrently.

The prosecution case briefly stated is that there was enmity between the deceased Babu Ram and the accused persons because the deceased and his brother Chiranji Lal (PW 1) had been given a Patta in respect of the land by the Gram Samaj and the said land formerly belonged to the accused Sarwan and one Jag Das and was adjacent to the plot of the accused Sarwan towards east. The accused Sarwan is the father of the other accused. The deceased had demolished the Nali that lay between the plots of the accused Sarwan and the aforesaid land of the deceased. The demolition of the said Nali was the cause of the present incident. It is alleged that on 17th October, 1977 at about 7 A.M. the deceased Babu Ram had gone to ease himself towards the Bamba and on return when he reached in front of the agricultural plot of the accused, all the accused emerged, challenged and attacked him (decease) with their respective weapons. The accused Sobaran and Jagdish were armed with a Pharsa and Ballam respectively, whereas the other accused were armed with lathis at that time. The deceased Babu Ram raised hue any cry, hearing which his brother Chiranji Lal (PW 1), Faiyaz Khan (PW 4) and Surendra Kumar (PW 5) rushed to the scene of occurrence and witnessed the incident. The accused fled away towards the jungle. The deceased Babu Ram fell down on the spot. He was, however, taken to the police station Narkhi where the first information report, which was scribed by Om Prakash Pradhan (PW 2), was lodged by the informant Chiranji Lal (PW 1) on 17th October, 1977 at 9.30 A.M. Consequently a case was registered u/s 307 IPC, but later on it was converted into one u/s 302 IPC. The deceased war medically examined by Dr. A.S. Birman at S.N.M. Hospital, Firozabad, on 17th October, 1977 at 11.45 A.M. Dr. A.S. Birman found the following injuries on the body of Babu Ram.

Lacerated wound 4 cm x 1 cm x bone deep on the top of head.

Lacerated wound 4 cm x 1 cm x muscle deep on the back of left forearm 10 cm below the elbow joint.

Traumatic swelling 6 cm x 4 cm on the back part of left forearm 4 cm above the left wrist, Advised X-ray.

Traumatic swelling 5 cm x 4 cm on the back part from forearm, 7 cm below the elbow joint. Advised X-ray.

Incised wound 1 cm x 5 cm x muscle deep on the centre of swelling No. 4.

Traumatic swelling 10 cm x 6 cm on the back right forearm 1 cm above the wrist joint. Advised X-ray.

Traumatic swelling 8 cm x 4 cm on the dorsum of right hand with abrasion 1 cm x 0.5 cm in the centre of swelling No. 6.

Traumatic swelling 12 cm x 10 cm on the front of left thigh in the middle. Advised X-ray.

Lacerated wound 1 cm x 0.5 cm on the left thigh lower and inner part.

Incised wound 1.5 cm x 0.5 cm x muscle deep on the front of left leg upper 1/3rd. Direction downward.

Lacerated wound 1 cm x 0.2 cm x muscle deep on the front of left leg 2.5 cm below the injury No. 10.

Incised wound 6 cm x 1 cm x muscle deep on '' the front of right leg 10 cm below the knee joint.

Lacerated wound 3 cm x 2 cm x muscle deep on the front part of right leg 2 cm lateral on injury No. 12.

Traumatic swelling 8 cm x 6 cm on the back right side lower 1/3rd. Advised X-ray.

Dr. A.S. Birman prepared the injury report Ext. Ka. 13.

The then Naib Tahsildar Firozabad, Sri Bhagwati Prasad Sharma (PW 8) recorded the dying declaration (Ext. ka 21) of deceased Babu Ram on 17th October, 1977 at 2.25 P.M.

On 18th October, 1977 the deceased was shifted to Section N. Hospital, Agra, where he died on 19th October, 1977 at 4.45 P.M. Dr. V. P. Agarwal (CW 1) conducted the post-mortem on his dead body and found the following ante-mortem injuries thereon:

Incised wound 3/4" x 2/4" muscle deep with tail in of the wound on the outer side and outer part and middle of right-arm.

Lacerated wound 3/4" x 3/10" x bone deep on the back of right forearm upper part. The underlined both bones radius and ulna fractured.

Abraded contusion 2" x 13,4 on the back of right forearm lower part with fracture of both bones underlined radius and ulna.

Lacerated wound 3/4" x 1/4" bone deep on the back of right hand near khucker with fracture on head of second metacapal bone.

Lacerated wound 1 1/2" x 3/4" muscle deep on the outer and upper part of right leg.

Lacerated wound 1 3/4" x 3/4" x bone deep on the front or right leg middle part.

Lacerated wound 3" x 1" x bone deep on the front of middle of left leg with fracture of underlined both bones, tibia and fibula.

Lacerated wound 1 1,2" x 1" x bone deep on the inner side lower part near knee of left side. The underlined left famur bone fractured from the lower end.

Stitched wound 1 1/2" on the back of left forearm middle part.

Multiple small abrasions in an area of 3 1/2" x 1 1/2" on the back and lower part of left forearm, the underlined both bones radius and ulna were fractured.

Abrasion 1 1/2" x 1" on the back of chest right side middle part.

Lacerated stitched wound 1 1/2" x 2/10" bone deep on the back of skull.

Mahenhra Prasad Misra (PW 1) who was then posted as Sub-Inspector at the police station Narkhi was entrusted with the investigation into the case. He started investigation into the case on 18th October, 1977 on which date he interrogated the prosecution witnesses. He inspected the place of occurrence and prepared its site plan Ext. ka-14. On 8th November, 1977 C.P. Dube arrested the accused Sarwan, Jagdish and Baldev. On 14th November, 1977 the then Sub-Inspector Jagram Singh arrested the accused Sobaran and Mahendra. On the receipt of the post-mortem report and after completion of the investigation into the case, be ultimately submitted the charge-sheet, Ext. ka-18 against the accused Sarwan, Jagdish, Baldev, Sobaran and Mahendra who subsequently died.

The prosecution examined Chiranji Lal (PW 1), Om Prakash (PW 2), the then Head Moharrir of police station Narkhi Jagdish Saran (PW 3), Faiyaz Khan (PW 4) Surendra Kumar (PW 5), Dr. A.S. Birman (PW 6), the Investigating Officer Mahendra Prasad Misra (PW 7) and the then Naib Tahsildar Bhagwati Prasad Sharma (PW 8) and filed certain documents in support of its case. "The accused pleaded not guilty. They have stated that all the allegations levelled against them are wholly wrong and incorrect. They have displayed their ignorance of many of the facts relating to the prosecution case They have examined the then Judicial Record-keeper, Collectorate, Agra, Kulbir Bahadur Kulshrestha (DW 1), the then Record-Keeper, police office, Agra, Satya Prakash Upadhya (DW 2) Chet Ram Bhaskar (DW 3) and Om Prakash (DW 4) and have relied upon certain documents in support of their contentions Dr. V. P. Agarwal was examined as CW 1 in this case.

Having heard the learned Counsel for the parties and having considered the evidence on the record, the then learned IV Additional Sessions Judge, Agra, convicted the accused and awarded various sentences to them, through his impugned judgment and order, as mentioned earlier. Aggrieved, they preferred this appeal against the same.

We have heard the learned Counsel for the parties at length and have gone through the record carefully.

The prosecution case is that the first information report was written by Om Prakash Pradhan (PW 2) on the dictation of Chiranji Lal at the place of occurrence itself. But Chiranji Lal (PW 1) has admitted in his cross-examination that it was written by Om Prakash Pradhan (PW 2) at the police station itself. Faiyaz Khan (PW 4) has stated even in his examination-in-chief that Om Prakash (PW 2) had written it at the place of occurrence, on the information given by Babu Ram, decease and the witnesses. Om Prakash (PW 2) has the other hand, stated that it was written by him at the place of occurrence itself. But the words, "MAI GAON WALO KI MA DAD SE AAPNE BHAI KO CHARPAI PAR RAKHKAR THANE REPORT KE LIYE AAYA HUN" occurring in the first information report, Ext. ka-2 shows that it was written not actually at the place of occurrence but certainly at the police station itself. Om Prakash (PW 2) has categorically stated that Babu Ram had talked to the Daroga in regard to one or two things. This means that Daroga was present at that time at the police station. But Jagdish Saran (PW 3) who was then posted as Head Moharrir, has denied the presence of the Daroga, at the time of the lodging of the first information report.

Om Prakash (PW 2) had accompanied the injured-deceased Babu Ram from the peace of occurrence to the police station and thereafter to the hospital.

Therefore, the possibility of the first information report, Ext. ka-2, having been written by Om Prakash at the police station, after due consultation and deliberation cannot altogether be ruled out. This being so, the first information report in the instant case cannot be implicitly relied upon. The first information report is the foundation on which the entire structure of the prosecution case is built and if the foundation becomes shaky, the entire structure is bound to collapse.

Chiranji Lal (PW 1), Om Prakash (PW 2), Faiyaz Khan (PW 4) and Surendra Kumar (PW 5) are partisan. Their statements are inconsistent with and contradictory to one another on important points and, therefore, do not inspire confidence.

There is no evidence to show as to at whose instance the Investigating Officer Mahendra Prasad Sharma (PW 7) inspected the place of occurrence and prepared its site plan. He has asserted that the site plan Exts. ka-14 contains an index. But the site plan itself shows that there is no index therein. All this indicates that the inimical and partisan witnesses in collusion with one another and also in connivance with the police have falsely implicated the Appellants-accused. This possibility cannot altogether be ruled out.

Bhagwati Prasad Sharma (PW 8) recorded the dying declaration of the deceased on the basis of the report sent by Dr. A.S. Nirman (PW 6) direct to him. Dr. A.S. Nirman is said to have given a certificate to the effect that Babu Ram was mentally fit to give his dying declaration.

The learned Counsel for the Appellants-accused has argued that the Appellants-accused have challenged the very authenticity of the dying declaration and that being so Dr. A.S. Nirman (PW 6) should have proved his certificate to the aforesaid effect, but he did not do so. He has further argued that the attention of Dr. A.S. Nirman (PW 6) was not drawn to his above certificate at all that Dr. Nirman (PW 6) found three incised wounds on the person of Babu Ram as is clear from the injury report Ex. ka 13 prepared by him, that Dr. V.P. Agarwal (CW 1) did not find any such incised wound on the dead body of Babu Ram, at the time of his postmortem examination, as is evidently clear from the post-mortem report Ex. ka-10, that Dr. Nirman sent the report to the then Naib Tehsildar, Firozabad, Bhagwati Prasad Sharma (PW 8) direct for recording the dying declaration and that the Investigating Officer did not record the statement of Bhagwati Prasad Sharma (PW 8) and, therefore, the act and couduct of Dr. A.S. Nirman (PW 6) Bhagwati Prasad Sharma (PW 8) and the Investigating Officer Mahendra Prasad Sharma (PW 7) indicates something fishy some where. His contention does not appear to be devoid of substance.

In the result the appeal is allowed. The impugned judgment and order are set aside. The Appellants-accused are acquitted of the offences with which they have been charged. They are on bail. Their bail bonds are cancelled and sureties stand discharged. They need not surrender.