Sonpal and Others vs State

Ranjana Pandya, J.—1. Challenge in this appeal is to the Judgment dated 1.5.1982 passed by the then Additional Sessions Judge, Aligarh in S.T. No. 419 of 1980, State v. Sonpal and others arising out of Case Crime No. 269 of 1979, P.S. Iglas, District Aligarh whereby the accused Sonpal, Indrapal, Zalim and Surja were found guilty under Section 304 (I) read with Section 34 I.P.C. and 323 read with Section 34 I.P.C., and they were sentenced to undergo rigorous imprisonment for a period of seven years with fine of Rs. 250/- under Section 304 (I) read with Section 34 I.P.C. and rigorous imprisonment for a period of six months under Section 323 read with Section 34 I.P.C. with default stipulation.

Appellants No. 2 and 3 died during the pendency of appeal, hence, the appeal as against them was abated.

Filtering out unnecessary details the brief facts as stated in the F.I.R. and the prosecution theory are that the deceased Neksa, uncle of Ramvir was sitting at his door. A dispute arose between the children. The informant Bishambhar and the deceased reached the spot and children were separated. Suddenly, the accused Sonpal, Indrapal, Zalim and Surja started attacking Neksa with Lathi, dandas and thought he had collapsed and fled away. When wife of Neksa came to the spot, she was also beaten. The occurrence took place at 6 p.m. in the night. The accused persons surrounded the pathway. There was no way to reach the police station. Hence, the report was lodged on the next day.

The investigation was entrusted to S.I. Ramadhin Singh Yadav (P.W.6), who stated that on 1.11.1979 he was posted as Station Officer Iglas. He investigated this case. On 2.11.1979, he visited the scene of occurrence and prepared the site plan which was proved as Ext.Ka-5. After necessary investigation and recording the statements of the witnesses, he submitted a charge sheet against the accused, which was proved as Ext. Ka-6. He further stated that information about the present occurrence was received at the police station by means of written report (Ext.Ka-2) On the basis of which chik report Ext.Ka-7 was prepared by the Head Moharrir Narottam Lal who registered the case in the General Diary at serial No. 18. On 2.11.1979 the copy of the G.D. was proved as Ext.Ka-8. The present case was altered from one under Section 308 I.P.C. to one 304 I.P.C. through report in the General Diary on Item No. 19 on 2.11.1979 which was also scribed by said Narottam Lal, the copy of which is Ext. Ka-9.

Post mortem on the body of the deceased was conducted by P.W.4 Dr. Pradeep Kumar. The age of the deceased was 42 years. His death had occurred a day before. Rigor mortis had passed from the upper limbs of the body but still was present on the lower part of the body. Red colour discharge was coming out from both the nostrils, abdomen and testicles were swollen. Small blisters had cropped up due to decomposition of the body. The doctor found the following ante mortem injuries on his person:--

"1. Traumatic swelling 4"x3" on right temporal region.

Traumatic swelling 2-1/2" x 1-1/2" on left temporal region.

Contusion 2-1/2" x 1-1/2" on the top of left shoulder.

Contusion 2" x 1/2" on right side of chest 1-1/2" from right nipple at 8 O''clock position.

Contusion 2"x 1-1/2" on right side of chest 3/4" below injury No. 4.

Multiple contusion in an area of 10"x 6" on right scapular region.

Multiple contusion 7" x 4" on left scapular region.

Contusion 6" x 2" on upper part of right hip.

Contusion 6"x 2" on top of left shoulder.

Abrasion 1" x 1/2" on left palm.

Abrasion on 1/2" x 1/2" on right side the head just above right ear."

The parietal bones on both sides of the heads were broken and clotted bloods were found therein. The membrane of the brain was also lacerated and clotted blood was also found therein. Cause of death was quoma arising out of the head injury. The doctor proved post mortem report as Ext. Ka-3.

P.W. 5 is S.I. Pawan Singh Chauhan who prepared the inquest report which was proved as Ext.Ka-4.

The prosecution examined as many as 6 witnesses. P.W.1 is Dr. V.P. Gupta who examined the injured Batasho and proved the injury report as Ext. Ka-1. He further examined the accused Sonpal on 2.11.1979 and proved it as Ext. Kha1. P.W. 2 is Ramvir who is said to be a witness of the incident. P.W. 3 is the injured Batasho. The statements of P.W.4 Dr. Pradeep Kumar (P.W.5) S.I. Pawan Singh Chauhan and P.W. 6 S.I. Ram Veer Yadav have already been discussed.

After close of the prosecution evidence, the statement of the accused persons was recorded under Section 313 Cr.P.C. in which all the accused denied the occurrence and it has been stated that dacoity took place at the house Jangalia in which all the four accused were named. They were acquitted in that case and due to that enmity, they have been named. However, except the medical report of Sonpal, which is Ext.Kha-1 on record, no other evidence was produced.

It has been contended on behalf of the counsel for the appellants that the F.I.R. is delayed. Hence, there are chances of improvements, false implication and embellishment. As per chik report the occurrence is said to have taken place on 1.11.1979 at 7 O''clock in the evening whereas the report of the occurrence was lodged on 2.11.1979 at 11 a.m., the place of occurrence from the police station being two kilometers. In the F.I.R., as far as the delay is concerned, the informant has mentioned that since there was no vehicle to go to the police station and the accused had blocked the way, hence, he did not go to the police station. Informant (P.W.2) has also stated that after the occurrence, the accused fled away. On the date of occurrence, he did not go to the police station due to the fear of the accused and since the accused had blocked his way, hence, he lodged the report on the next day. Thus, there is sufficient explanation for the delay in lodging the F.I.R.

As far as the occurrence is concerned, it has been submitted on behalf of the appellants that there were injuries on the person of the accused. Non-failure on the part of the prosecution to explain the injuries on the person of the accused is fatal. Perusal of the injuries of the accused Sonpal reveals that the injuries are superficial and the prosecution witnesses have stated that they did not see any injury on the person of the accused, hence, these superficial injuries are not of much consequence in the matter as far as non-explanation of the injuries on the part of the prosecution are concerned.

Coming to the incident, counsel for the appellants has vehemently and categorically stated that the place of occurrence is being changed by the prosecution again and again and since the place of occurrence is not that which is said to be by the prosecution, hence, the whole prosecution story stands falsified. It has further been submitted that even the manner of assault has not been proved. Thus, the accused are entitled to acquittal. Ramvir (P.W.1), who is the informant and also the eye witness, has stated that all the accused came to his chabutara and assaulted his uncle on the chabutara of the informant. His aunt Batosho (P.W.3) was also beaten on the chabutara of the informant. In cross-examination, this witness has admitted that all the accused assaulted the deceased together on the chabutara of the informant. He has stated that when the occurrence took place, he alone was present with the deceased. When Neksa fell down this witness raised hue and cry then his aunt Batasho came who was also beaten. This witness could not however, specify the size of the chabutara but has specified that 10-20 blows were inflicted on the deceased and the complete occurrence took place on the chabutara. As far as the place of occurrence as per version of Batasho (P.W.3) is concerned, she has stated that altercation between the children took place on her chabutara.

Reference to the site plan Ext. Ka-5 is necessary in which the Chabutara of Batasho (P.W.3) and Neksa deceased is far away from the Chabutara of Ramvir (P.W.1). Thus, according to the witness Batasho (P.W.3), the occurrence took place on her chabutara. Batasho (P.W.3) has further stated that it is not a fact that Ramvir lives in her house but clarifying the whole story she has stated that her house and the house of the informant Ramvir is separate and there is distance of 50 paces between both the house. Further clarifying she has said that the occurrence took place on her chabutara.

According to this witness, she has stated that,

P.W. 3 Batasho has admitted that prior to the occurrence, four accused appellants were charged for dacoity in which they were acquitted. P.W.2 Ramvir has specifically denied that the deceased did not fall down before the house of Sonpal neither the deceased ran away anywhere from the chabutara. Thus, the place of occurrence, as stated by Ramvir, is his chabutara; as stated by Batasho (P.W.3) is her chabutara whereas in the site plan Ext. Ka-5 the Investigating Officer has shown the place of occurrence by A��. this point A�� is neither in front of house of Neksa nor in front of house of Sonpal and nor before the house of Ram veer but it is on the pathway. As per the prosecution version altercation between the children took place on the chabutara but the Investigating Officer has shown the place of occurrence and place where altercation between the children took place to be the same. A perusal of the statement of Investigating Officer reveals that informant had stated to him that the deceased ran towards the North. In cross-examination, he has admitted that cross-cases were registered between the parties and the place of occurrence is the pathway. Hence, the place of occurrence as mentioned in the F.I.R., in the statement of P.W.2 Ramvir, P.W.3 Neksa and that mentioned in the site place Ext. Ka-5 and by the Investigating Officer (P.W.6) are varying and in the absence of place of occurrence being fixed, the case of the prosecution falls down like a heap of cards.

Thus, I conclude that the prosecution has failed to prove the case as against the accused persons. The conviction of the accused has not been based on any evidence on record due to which appeal is liable to be allowed.

Accordingly, the appeal is allowed and the Judgment dated 1.5.1982 passed by the then Additional Sessions Judge, Aligarh in S.T. No. 419 of 1980, State v. Sonpal and others arising out of Case Crime No. 269 of 1979, P.S. Iglas, District Aligarh whereby the accused Sonpal, Indrapal, Zalim and Surja were found guilty under Section 304 (I) read with Section 34 I.P.C. and 323 read with Section 34 I.P.C. whereby the accused have been convicted and sentence is hereby set aside.

The appellants are on bail. They need not surrender. The provisions of section 437-A Cr.P.C. be complied forthwith.

Let copy of the Judgment be certified to the court concerned.