State of U.P. vs Pratap Singh and others

Poonam Srivastav, J.—The instant government appeal arises from the judgment of acquittal dated 19.3.1982 passed by the Ist Additional District and Session Judge, Banda in Session Trial No. 335 of 1980.

Seven accused namely Pratap, Harpal, Pulla alias Ram Swarup, Sheo Gopal, Rameshwar, Jaipal and Gatti were charged for the offences under Sections 302, 149 I.P.C. for having murdered Arjun Singh, Abhilakh Singh and Layak Singh all sons of Baij Nath Singh. Accused Pratap, Jaipal, Gatti, Pulla alias Ram Swarup and Rameshwar were given a clear acquittal holding not guilty and accused Sheo Gopal and Harpal Singh were given benefit of doubt and thereby acquitted. This government appeal was preferred and at the time of admission, leave was refused in respect of accused Pratap, Jaipal and Gatti vide order dated 21.6.1982 and remaining four accused Harpal Singh, Sheo Gopal, Pulla alias Ram Swarup and Rameshwar were issued notices. They got themselves bailed out and were arrayed as four opposite party in the instant appeal.

The prosecution story as unfolded during trial is that Pratap''s son Sheo Charan was murdered two and half years before the incident. Basdeo and Hajari Brahmans were prosecuted for the murder but they were acquitted. Subsequent to their acquittal, they left the village. Baijnath Singh purchased the house of Basdeo on 22.6.1979. Baijnath Singh is the brother of deceased Arjun Singh and father of two deceased Abhilakh and Layak. Pratap was annoyed because Baijnath Singh purchased the house of Basdeo who had killed Pratap''s son. He voiced his annoyance 8 days before the incident which took place on 7.7.1979. Three deceased were sitting in Baithaka of Ramadheen Singh and Gayadeen Singh. Ramadheen Singh, Pulla alias Ram Swarup and Rameshwar Singh were also lying there. Pulla alias Ram Swarup was armed with a gun belonging to one of his relations Bhagwandeen Singh resident of village Bhiharka. Rameshwar Singh was also carrying the gun of a relation of his belonging to village Bhiharka. All the aforesaid persons were in Baithaka for almost 45 hours. Later the remaining five accused namely Pratap armed with lathi, Jaipal armed with Bhala, Harpal armed with gun, Gatti son of Jaipal armed with Bhala and Sheo Gopal son of Pratap armed with gun arrived there at about 4.00 P.M. Pratap exhorted to kill them as they had purchased the house of his enemy. On the exhortation, four accused armed with gun opened fire and those armed with Bhala started wielding blows. The victims started shrieking and calling for help on which Maheshwari Singh PW1, Surya Bhan PW2 and other members of the family and residents of village arrived at the scene of occurrence. The accused fled away towards south.

F.I.R. was lodged on the next day i.e. 8.7.1979 at 7.30 A.M. at police station Mataundh by Maheshwari Singh son of Arjun Singh. The Station Officer Police Station Mataundh reached the place of occurrence on 8.7.1979 at 10.00 A.M. and he recovered the dead bodies of Abhilakh Singh and Layak Singh from the Baithaka of Ramadheen Singh and dead body of Arjun Singh from the passage situated between Baithaka and Chabutara. After preparing the inquest report, the dead bodies were sent for autopsy which was conducted on 9.7.1979 between 10.40 to 14.00 hours at District Hospital, Banda by Dr. G. J. Gupta PW10. Investigation was handed over to Naipal Singh Yadav on 24.8.1979 who submitted charge sheet against the accused persons after completing investigation.

The prosecution has examined 11 witnesses Maheshwari PW1, Surya Bhan PW2, Bhulla PW5 and Nazarbali PW6 are the alleged eye witnesses of the occurrence. They have given an account of the incident. Salona Singh PW3, brotherinlaw of deceased Abhilakh Singh has proved the copy of telegram dated 8.7.1979 purporting to have been given by him to D.M., S.P. And C.M.O., Banda to the effect that the accused persons were trying to influence the doctor. Basdeo PW4 has proved the sale deed Ex. Ka3 dated 22.6.1979 executed by him in favour of Baij Nath Singh. Madho Rai Marathay PW7 is said to have prepared a map of the site Ex. Ka20 and photo print Ex. Ka6 to Ex. Ka12 with negatives Ex. Ka13 to 19 at the instance of the complainant. Constable Hardayal PW8 took the dead bodies to hospital for post mortem. He has proved the same. Ramadheen PW9 nominated in the first information report and said to be present in his Baithaka in the company of the deceased and some of the accused has not supported the prosecution version. He has stated that no incident took place in his Baithaka between 1.00 and 8.00 P.M. on 7.7.1979. He has given a different account of the incident. Dr. G.J. Gupta PW10 has proved the post mortem reports Ex. Ka21 to Ka23 in regard to Layak Singh, Abhilakh Singh and Arjun Singh. Sri N.S. Tomar PW11 has proved the chik report Ex. Ka25 G.D. extract whereby a case was registered (Ex. Ka26), inquest report, diagram and challan of dead bodies marked Ex. Ka27 to Ka35. He recovered blood stained Gadda and Baan under memo Ex. Ka36, blood stained and simple earth under memo Ex. Ka37 from the place where Abhilakh Singh was murdered. Blood stained and simple earth under memo Ex. Ka38, blood stained Gadda under memo Ex. Ka39 was recovered from the place of murder of Layak Singh. Similarly blood stained and simple earth under memo Ex. Ka40, blood stained clothes and Janau etc. under memo Ex. Ka41 was recovered from the place of murder of Arjun Singh. Two empty cartridges, 3 wads and 3 pellets were recovered from the scene of occurrence under memo Ex. Ka42 site plan Ex. Ka43 was prepared. The charge sheet Ex. Ka45 was submitted by S.I. Naipal Singh on 6.10.1979.

Learned Sessions Judge has given a verdict of acquittal despite the fact that three persons were done to death in a single incident. The first ground of acquittal is delay in the F.I.R. The incident is alleged to have taken place on 7.7.1979 at 4.00 P.M. in village Ujrehta, Police Station Mataundh and distance of police station from the place of occurrence is 13 miles. The report was lodged on the next morning at 7.30 A.M. Explanation on behalf of the prosecution is that the F.I.R. was scribed by Ram Karan who is brotherinlaw of PW1 Maheshwari. It is an admitted fact that PW1 did not come himself to the police station on account of fear and being alone.

The next ground of acquittal is that the place of incident as claimed by prosecution is not authentic and can not be believed. The Investigating Officer has proved Ex. Ka36 to Ka42 whereby blood stained earth, blood stained Gadda and Baan is said to have been recovered from inside Baithaka of Ramadheen and outside Baithaka where three deceased were done to death. The deceased Abhilakh was badly injured and bones of the jaw and skull were fractured and broken to pieces to such an extent that they were scattered here and there. The teeth were also missing and, therefore, pieces of bones of jaw and skull as well as teeth should have been recovered from the scene of crime which was not found by the Investigating Officer.

The third ground of acquittal is manner of assault. The weapons attributed to the respective accused do not explain the nature of injuries. The next ground is that there is no motive. The suggestion of the prosecution that it was the purchase of house of Basdeo by family of the deceased irked accused Pratap and this led to the cause of triple murder. The last ground which compelled the learned Sessions Judge to acquit the accused, is that relatives who are interested witnesses, were examined and independent witnesses have not supported the prosecution story in as much as the place of occurrence has also become doubtful.

Sri P.S. Pundir learned counsel appearing on behalf of the State has tried to place certain part of evidence to explain the delay in lodging of the F.I.R. While placing the evidence of PW1 Maheshwari, he has laid emphasis on paragraph 8 of his statement. The witness has stated that he was scared to such an extent that he did not dare to go to the police station to lodge the F.I.R. at night. Besides, he sent his servants to call his relatives such as his brotherinlaw Ram Karan who is scribe of the F.I.R. It was only in the morning he was able to lodge the report after leaving his relatives and chowkidar near the dead bodies. Sri Pundir has also laid stress on certain part of cross examination of PW1 where he has tried to demonstrate that his relatives used to live in different villages. He had sent his servant to village Gureh Dhapu as well as village Bilgaon. This witness has also admitted that to reach village Gureh Dhapu, one has to cross Banda since Gureh lies 23 miles away from Banda on the road which leads to Baberu. The relatives residing at Gureh had not come to village of the witness but they were waiting at Banda itself.

Certain part of evidence of PW5 has also been placed to explain the delay in lodging the F.I.R. The reason given is that due to fear he did not step out of his house. Several people did gather at the scene of occurrence after the incident but they left after a short while and, therefore, there was no occasion to get out of his house. The Investigating Officer has also stated that on the date of incident, it was not easy to reach the police station as river Cane could not be crossed on foot. In reply to the second ground that is place of incident, learned counsel has tried to give an halfhearted reply.

We have examined the judgment of the learned Sessions Judge, while refusing to entertain the explanation for delay given by witness has given valid and cogent reasons for not accepting it. We are in agreement with the reasonings that when messengers could be sent to call different relations from distant places then why no information was sent to the police. The first informant started from village Ujrehta on 8.7.1979 at about 4.00 A.M. after arrival of Ram Lal. According to own admission of the prosecution, four messengers were dispatched after the incident. One was sent to village Charao to call Maheshwari''s maternal uncle Ram Lal. The same messenger was asked to inform the chowkidar of the village who resided in village Bharauli. The second messenger was sent to village Sijvahi to call Maheshwari''s brotherinlaw Ram Karan. The third messenger was sent to call Siroman Singh, fatherinlaw of the deceased Layak Singh who happens to be a clerk of Shri Kailash Madho Nigam, Advocate, Banda. The fourth messenger was sent to Maheshwari''s father Baijnath Singh. It has been elucidated that Chowkidar arrived at 7.00 P.M. on that date. There is also a train available from Ichauli situated at a distance of 5 miles from village Ujrehta which reaches Banda at 10.00 P.M. When PW1 was questioned why the report was not sent through the messenger, there was no cogent explanation. Cousin of deceased Abhilakh arrived in the village at about mid night and he did not carry any arm with him. This fact was rightly noticed by learned Sessions Judge while arriving at a conclusion that the danger spelled out by the witness has no substance. Even Ram Lal left the village on 8.7.1979 at 4.00 A.M. unarmed which suggests that explanation given PW1 is an absolutely farce.

We are therefore, of the view that the prosecution has failed to come with any plausible explanation for inordinate delay in lodging the F.I.R. So far place of occurrence is concerned, Gadda and Baan were recovered from inside Baithaka of Ramadheen but besides this, not a single piece of bone teeth or any other part of the body was found from the scene of crime. Ramadheen is said to be present in the Baithaka has not supported the prosecution case. He has very clearly denied that any such incident took place in his Baithaka. He has also denied that the Investigating Officer ever interrogated him. He further states that he saw the dead body of Arjun Singh lying on the Rasta next morning thereby suggested that either murder was committed at some other place and dead bodies were placed in his Baithaka strategically to make out a case that the incident took place in the Baithaka of PW9.

We have also examined three post mortem reports. External examination of three dead bodies universely show condition of the bodies as decomposition had started, foul smell was coming out. Abdomen distended. Blisters were occasionally present. Scortum and penis swelling. Skin peeled off at places. This condition of the body is more or less identical in all the three cases and it is sufficient to come to a conclusion that death had taken place at least 45 days before and it was on account of this reason the teeth had loosened and it was coming out. The story propounded by the prosecution on the face of it appears to be imaginary. Same is the case regarding motive. We have gone through entire judgment and we concur with the view of the learned Sessions Judge that though it is gruesome triple murder but the prosecution, for the reasons best known, has tried to make out a story which the evidence do not support.

Sri G.S. Chaturvedi, Senior Advocate assisted by Sri Samit Gopal Advocate has vehemently argued and tried to lay emphasis on the fact that there was a dacoity nearby or around the alleged time of incident. All the family members of the first informant have licensed arms which is enumerated in paragraphs 21, 22, 23 of the statement of PW1 but no effort was made by the first informant to go to the police station with his relatives in the night itself as there was no dearth of fire arms. Sri G.S. Chaturvedi has also pointed out that though the incident is alleged to have taken place at 4.00 P.M. but perusal of the autopsy report of all the three deceased, reveal a different story. The doctor has stated on internal examination he found the stomach of three deceased empty. Small intestine and large intestine consisted of faecal matter and gases and, therefore, the suggestion that the incident took place not at 4.00 P.M. but sometimes in the wee hours of the morning and it is for this reason the report was lodged at 7.30 A.M. and none had seen the incident. However, the accused were the only persons who could be implicated and it is, therefore, submitted that the judgment given by the learned Sessions Judge should not be interfered whatsoever. Sri Chaturvedi has pointed out that the Apex Court has time and again cautioned High Court''s ambit and scope of power of the appellate court in appeal against an order of acquittal. An order of acquittal by the trial court should not be disturbed if two reasonable conclusions are possible on the basis of evidence on record. Though it is not disputed that the appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is passed. In the case of Satya Narayan Yadav Vs. Gajanand and another, AIR 2008 Supreme Court, 3284, it was held that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.

In view of what has been stated above and after scrutinizing the entire record as well as the conclusions arrived at by the trial court, we are of the opinion that judgment passed by the learned Sessions Judge does not call for any interference by this Court despite the fact that it is case of triple murder but the prosecution has not been able to give any explanation regarding a number of lacunas, shortcomings and link the prosecution story by means of cogent evidence. Thus, we affirm the judgment of acquittal passed by the court below. The government appeal is dismissed. The bail bonds are cancelled and sureties are discharged.