Shiv Ram and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Since all these criminal appeals i.e. (Criminal Appeal No. 264 of 2014-Shiv Ram V. State of U.P.), (Criminal Appeal No. 272 of 2014-Desh Raj V. State of U.P.), (Criminal Appeal No. 273 of 2014-Jagdish V. State of U.P.) and (Criminal Appeal No. 274 of 2014-Kamlesh V. State of U.P.) arise out of a common judgment, therefore, the same are being disposed of together.

Sri Syed Wajahat Ali @ Vijaha, learned counsel for the appellants and Sri M.Y. Ansari, learned Additional Government Advocate were heard.

Criminal Appeal No. 264 of 2014 preferred by appellant Shiv Ram, Criminal Appeal No. 272 of 2014 preferred by appellant Desh Raj, Criminal Appeal No. 273 of 2014 preferred by appellant Jagdish and Criminal Appeal No. 274 of 2014 preferred by appellant Kamlesh challenging the judgment and order dated 10.10.2013 passed by learned Sessions Judge, Hardoi, in Sessions Trial No. 758 of 2010, arising out of Case Crime No. 344 of 2010, Police Station Kasimpur, District Hardoi, whereby all the appellants were convicted and sentenced as under:--

(i) Under Section 302/34 IPC - Imprisonment for life alongwith fine of Rs. 5,000/- each with default stipulation of one month additional imprisonment.

(ii) Under Section 504 IPC - Three months'' rigorous imprisonment each.

(iii) Under Section 506 IPC - Six months'' rigorous imprisonment each.

(iv) Under Section 7 Criminal Law Amendment Act - Six months'' rigorous imprisonment each.

In brief, the case of the prosecution was that the complainant Shyamji Dwivedi who happens to be the brother of the deceased Satish Dwivedi lodged an FIR at Police Station Kasimpur, District Hardoi on 14.05.2010 at 23:50 hours alleging therein that on 14.05.2010 in the night his elder brother Satish Dwivedi and his brother Ramji Dwivedi were sleeping in the house. At about 10.00 p.m. the electricity supply resumed so they got up to charge their mobile phones. His elder brother Satish Dwivedi was putting a katiya (illegal way to extract electricity) on the main electricity line. The complainant was throwing the light of torch and his brother Ramji was also cooperating in the same. In the meantime, Shiv Ram whose house is situated in front of the house of the complainant and Desh Raj, Kamlesh and Jagdish who were sitting in the house of Shiv Ram came there and started hurling filthy abuses. When the complainant side asked them not to abuse then Shiv Ram with his Banka, Desh Raj, Kamlesh and Jagdish with iron rods reached there and tried to cause injuries to them. The complainant side raised alarm then Anil Kumar s/o. Ramadhar and Tara Chand s/o. Jairam and other persons also reached there. In the meantime, at about 10.40 p.m. these persons caused injuries to Satish with their respective weapons i.e. Banka and iron rods (sariya). When the complainant ran towards his brother to save him then the appellants also ran towards him to cause him injuries due to which his brother Ramji Dwivedi, Anuj Kumar and Tara Chand ran away from there and his brother was brutally killed by the blows of Banka and sariya by these accused persons. Thereafter, the accused persons went away from the place of occurrence.

On the basis of this information this case was registered and investigation proceeded. Place of occurrence was inspected and its site plan was prepared because of insufficiency of light the inquest proceedings were conducted in the following morning and after completing the necessary formalities the dead body was sent for postmortem which was conducted on 15.05.2010 at 1.50 p.m. As per the postmortem the duration of death was about half day and following ante-mortem injuries were reported in the postmortem report:--

(i) Lacerated wound 7 c.m. x 6 c.m. x bone deep present over left side of neck 5 c.m. below left ear clotted blood was present.

(ii) Lacerated wound 3 c.m. x 1 c.m. x muscle deep present on left shoulder 5 c.m. medial to tip of shoulder.

(iii) Piercing and penetrating perforating wounds in an area of 17 c.m. x 12 c.m. from mid line of both nipple to 3 c.m. above the umbilicus. Injuries were 17 in number same in size 12 injuries were cavity deep but five injuries were piercing through abdomen to back.

(iv) Piercing wound in an area of 12 c.m. x 13 c.m. five in numbers varying in size first 2.5 c.m. x 2.3 c.m. smallest 1 c.m. to 0.5 c.m. Blood oozing was present below both inferior angle of scapula and 5 c.m. above sacroiliac joint.

As per the postmortem report walls, were lacerated both lungs were pierced and perforated, vessels were pierced, pancreas were perforated.

In the opinion of the doctor the cause of death was excessive haemorrhage due to ante-mortem penetrating, piercing and perforating injuries and consequent shock.

The defence of the appellants was that the murder has taken place in the night by some unknown persons. The complainant who was carrying the vegetables shop in Lucknow was called from there and thereafter with the consultation of the police and under political pressure this false FIR was lodged against them and they are innocent.

After completing the investigation the charge-sheet was filed against all the accused persons.

During course of investigation on the information of secret informer on 15.05.2010 accused Kamlesh and Jagdish were arrested and they confessed their guilt. On the pointing out of the appellant Kamlesh one bhaala whose handle was broken was recovered and on the pointing out of the appellant Jagdish one iron rod (sariya) was recovered and its memo was prepared. This recovery was made in the presence of the complainant Shyamji Dwivedi and his brother Ramji Dwivedi. The remaining two appellants namely Shiv Ram and Desh Raj surrendered on 19.05.2010 and they were taken on police remand. On 30.05.2010 on the pointing out of the appellant Shiv Ram one banka was recovered and on the pointing out of the appellant Desh Raj one iron rod was recovered.

In order to prove its case the prosecution has examined PW-1 Shyamji Dwivedi, the complainant, PW-2 Ramji Dwivedi, another brother of the complainant, PW-3 Tara Chand, PW-4 Anuj Kumar as independent eye witnesses, PW-5 Constable Ghanshyam Singh, who has prepared the chik report and G.D. of this case, PW-6 Dr. Anil Kumar Singh who had conducted the postmortem on the body of the deceased and PW-7 S.O. Manoj Kumar Singh, Investigating Officer of this case.

No evidence in defence was adduced on behalf of the appellants.

After appreciating the evidence on record, the trial court has convicted the appellants as above, hence these appeals.

Submission of the learned counsel for the appellants is that all the witnesses of fact have turned hostile but inspite of that learned trial court has convicted the appellants. Story which was set up in the FIR was not corroborated with medical evidence so case of prosecution was improved and different weapon were introduced. So learned trial court has committed error in convicting the appellants.

Learned A.G.A. has submitted that learned trial court by a well reasoned judgment has convicted the appellants which needs no interference by this Hon''ble Court.

First we find it appropriate to consider the medical evidence which is in the form of postmortem report and the evidence of PW-6 Dr. Anil Kumar Singh. Perusal of the postmortem report shows that the deceased was done to death by a sharp pointed weapon as all the injuries were penetrating, perforating and piercing wounds which were found on the body of the deceased except two lacerated wounds. So the homicidal death of the deceased Satish Dwivedi stands proved and the time of death as claimed by the prosecution also stands corroborated by the medical evidence.

Now we shall deal with the ocular testimony of the witnesses. PW-1 Ramji Dwivedi in his examination-in-chief and in his cross examination has fully supported the case of the prosecution. His evidence was recorded on 25.01.2011 but on the application of the accused persons vide order dated 11.04.2013 he was recalled for the purpose of cross examination on the point of recovery under Section 27 of the Indian Evidence Act which is alleged to have been made on the pointing out of the accused persons.

PW-2 Ramji Dwivedi has also supported the case of the prosecution in his examination-in-chief which was recorded on 13.04.2011 but in his cross-examination which was recorded on 14.05.2012 he has given statements which are fatal to the prosecution. Two independent eye witnesses namely PW-3 Tara Chand and PW-4 Anuj Kumar have turned hostile and they have not supported the case of the prosecution. Perusal of the impugned judgment shows that the learned trial court has observed that the complainant in his cross examination has not stated that after the incident he was given information and thereafter he came back in the following morning and he has concluded that even according to his subsequent statement in cross examination it cannot be concluded that the complainant was not present at the scene of occurrence. We do not agree with this finding of the learned trial court because FIR of the incident was lodged at 23:50 hours in the night and the alleged arrest and recovery of the appellants Kamlesh and Jagdish was made on 15.05.2010. However, the time of arrest was neither mentioned in the recovery memo nor PW-7 Manoj Kumar Singh (Investigating Officer) has stated the time of recovery in his examination-in-chief. It has nowhere been stated by the complainant that after registration of the case he went back to Lucknow to take care of his shop of vegetables where he again got the information in the morning and he again came back. This does not appeal to reason that only because of the arrest of the accused persons and recovery on their pointing out was not such a thing for which the complainant ought to have been called by the pradhan. PW-1 complainant in his subsequent cross examination has stated that when he reached the village at that time the police was investigating the case and his signatures were obtained by the S.O. and Shyamji Dwivedi has also put in his signatures on the recovery memo. Before his arrival at the place of occurrence the ballam had been recovered. So once we take this part of the statement of this witness then it gives rise to the only conclusion that he was not present at the seen of occurrence. He got the information on phone and on such information he went to the police station. Thus this part of the statement not only brings the origin of the FIR under doubt but also strongly damages the recovery dated 15.05.2010 because as per the recovery memo bhaala and sariya were recovered but this witness says that ballam had already been recovered before his arrival the same was sealed. The accused persons have come with a definite defence that after the incident the complainant was called from Lucknow. So he was not an eye witness of this incident. There are certain other circumstances which supports our conclusion. In the instant case, the prosecution had come with a definite defence that the deceased Satish Dwivedi was putting a katiya on the main line of electricity and the complainant and PW-2 Ramji Dwivedi were also present there and cooperating in the said act. But admittedly, no such katiya was found on the scene of occurrence by the Investigating Officer. No recovery memo of any such katiya has been prepared nor the Investigating Officer has stated that any such katiya was found at the place of occurrence. Apart from it, the Investigating Officer has stated that the inquest proceedings were concluded at 10:30 a.m. but the challan lash (Exhibit Ka-7) shows that the dead body reached the headquarter at 10:30 a.m. which was situated at a distance of 8 kilometers from the police station. Time to send the dead body to headquarter was mentioned as 8:30 a.m. in the challan lash. This leads to the conclusion that all these papers were completed later on because by that time the FIR was not in existence and this fact supports the defence story that after the incident the complainant was given information on phone and thereafter he came to the place of occurrence and the FIR was lodged. Thus the FIR was anti-timed. This conclusion shows that subsequent statement given by the complainant in his cross-examination was his correct statement and the otherwise conclusion of the trial court was not correct.

PW-2 has also supported the case of the prosecution in his examination-in-chief which was recorded on 13.04.2011 but his cross examination could take place on 14.05.2012 wherein he has admitted that he and his brother Shyamji Dwivedi at the time of incident were running the vegetables shop in Thakurganj, Lucknow and in that connection they used to live in Lucknow on rent in the house of one Mahesh. Ram Pal pradhan of their village gave them information on phone regarding this incident then on 15.05.2010 he alongwith the complainant Shyamji Dwivedi came to Lucknow in the morning. The Pradhan had informed him that his brother is ill and on this information they came to their house and inquest proceedings took place in his presence. Thus this statement of PW-2 also supports our conclusion which we have expressed earlier regarding the presence of PW-1.

PW-3 Tara Chand and PW-4 Anuj Kumar have not supported the prosecution story and have turned hostile and nothing material could be elicited in their cross examination by the public prosecutor which lends supports to the case of the prosecution.

The evidence of PW-5 Constable Ghanshyam Singh was formal in nature as he has prepared only chik report and G.D. of this case. Suggestion was given to this witness that the FIR was anti-timed and it was prepared at the police station on the dictation of S.O. There is yet another ground which supports that two eye witnesses who have supported the case of the prosecution namely PW-1 Shyamji Dwivedi and PW-2 Ramji Dwivedi have not seen the occurrence because according to the version of the FIR the injuries were caused by banka and sariya. As per FIR Shiv Ram was armed with banka and remaining three appellants were armed with sariya. But when postmortem revealed that not even a single injury caused by sharp edged weapon was found on the body of the deceased and total 22 injuries which were piercing, penetrating and perforating were noted by the doctor in the postmortem report then ballam was introduced. Injuries received by the deceased could not have been caused either by banka or by sariya so the prosecution developed its case and one bhala was introduced. A bhala with broken handle is alleged to have been recovered on the pointing out of the appellant Kamlesh and one banka is alleged to have been recovered on the pointing out of the appellant Shiv Ram. The learned trial court has observed that the evidence of two eye witnesses who have been declared hostile does not stand wipe out from the record and can be used for the purpose of corroboration. We do not dispute this legal position but it is always the duty of the Court to scrutinize the prosecution evidence with care and caution. Where the witnesses have turned hostile and are giving contradictory statements then the Court is required to consider which of the two versions was correct. If the court reaches to the conclusion that the evidence given by the witnesses in his examination-in-chief wherein he has supported the case of the prosecution was correct then inspite of fact that he has not supported the case of the prosecution in cross examination, the Court can convict the accused persons but where the circumstances reflects that the evidence given by the witness in the cross examination to be more correct and probable then it would not be correct to rely on such evidence.

Learned trial court has not properly evaluated the evidence of PW-1 and PW-2 which has rendered its judgment unsustainable under law. There are other circumstances also which shows that they have not seen the incident. If they would have seen the incident then ballam or bhaala as the case may be, must have been mentioned. The fact of giving blows with ballam and bhaala must have been mentioned in the FIR.

There is yet another ground to support our conclusion. Injury No. 4 noted in the postmortem were five piercing perforating injuries of various size. Various sizes of the injuries gives rise to the inference of use of more than one sharp pointed weapon of different sizes. This inference shows that the incident was not witnessed by the alleged eye witnesses. So these circumstances cumulatively persuades us to extend benefit of doubt to the appellants.

In view of the discussion made above, we are of the considered view that approach of the learned trial court was erroneous, the finding recorded by the learned trial court was not in accordance with law. Learned trial court utterly failed to appreciate the legal position which has rendered its judgment unsustainable under law. Accordingly, these appeals i.e. (Criminal Appeal No. 264 of 2014 - Shiv Ram V. State of U.P.), (Criminal Appeal No. 272 of 2014 - Desh Raj V. State of U.P.), (Criminal Appeal No. 273 of 2014 - Jagdish V. State of U.P.) and (Criminal Appeal No. 274 of 2014 - Kamlesh V. State of U.P.) deserve to be allowed and are hereby allowed. All the appellants are acquitted of all the charges levelled against them. Appellants Shiv Ram, Desh Raj, Jagdish and Kamlesh are in custody. They shall be released forthwith, if not, wanted in any other case.

Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.