Tejpal and Another (in Jail) vs State of U.P.

M.C. Jain, J.—Tejpal and his son Ram Kumar were tried in Sessions Trial No. 114 of 1978 before the IIIrd Additional Sessions Judge, Ghaziabad, for the murder of Onkar Singh. They came to be convicted u/s 302 read with Section 34, I.P.C. and sentenced to undergo life imprisonment by judgment dated 5th December, 1981, impugned in this appeal filed by them.

We should relate the relevant facts. The deceased Onkar Singh was the own brother of the accused Appellant Tej Pal. The incident occurred in between the night of 18/19.3.1978 at about 1.30 a.m. in village Didauli, Police Station Murad Nagar, district Ghaziabad. The F.I.R. was lodged on 19.3.1978 at 6.45 a.m. by Jagannath P.W. 2-another brother of the deceased and accused Tej Pal. In the fateful right Jagannath P.W. 2, his brother Onkar Singh and Jai Pal Singh P.W. 1 (son of Jagannath) were sleeping in their dukaria (room). At about 1.30 O''clock, the two accused Appellants accompanied by two other unknown persons entered there. A lantern was glowing in the room. Tej Pal was armed with a pharsa, Ram Kumar had a country-made pistol and their two unknown companions were having lathi and spear, Ram Kumar pulled the cloth from the face of Onkar and then all the four culprits caught hold of him (Onkar) and started taking him away. Jagannath and his son Jai Pal asked them as to where they were taking him. But, mouthing abuses, they threatened them of their lives. They took away Onkar out of gher. Jagnnath and his son raised alarm and many persons from the village assembled. Jagannath and villagers had torches with them. Taking Onkar on the chak-road. Tejpal assaulted him with pharsa and Ram Kumar opened shot on his chest. Their remaining two companions assaulted him with lathi and spear. Onkar Singh fell down and died. The accused Appellants and their two remaining companions made their escape good towards western side. Jagannath got the report scribed by Jai Pal and signed the same after it was read over to him. Then he lodged it at the police station. The investigation followed as usual at the hands K. K. Gautam P.W. 3 who was then Station Officer of Police Station Murad Nagar.

Autopsy on the dead body of the deceased was performed by Dr. M. P. Agarwal on 20.3.1978 at 3 p.m. The deceased was aged about 35 years and about 1-1/2 day had passed since he died. The following ante-mortem injuries were found on his person :

(1) Incised wound 12 cm. x 4 cm. x bone cavity deep on back of head.

(2) Incised wound 5 cm. x 1 cm. x bone deep, 4 cm. above injury No. 1.

(3) Lacerated wound 3 cm. x 1 cm. x bone deep on left side forehead, just above eyebrow.

(4) ''L'' shaped incised wound 8 cm. x 1.5 cm. bone deep on right side head, 9 cm. above right ear.

(5) Incised wound 10 cm. x 2 cm. x bone deep, left side of head, 6 cm. above left ear.

(6) Gunshot wound of entry 2 cm. in diameter x 2 chest cavity deep on the front of chest right side, 9 cm. below right nipple at 4 O''clock position. Blackening and charring present.

(7) Abrasion 2 cm. x 1 cm. on scapular region.

(8) Gunshot wound of 3.5 cm. x 1.5 cm. on the outer part right side, abdomen, upper part.

The cause of death was shock and haemorrhage resulting from ante-mortem injuries.

The defence was of denial. According to the accused Appellants, Jagannath lodged false report against them so as to deprive them of their share in the property of Onkar as he wanted to usurp his estate.

In support of its case, the prosecution examined Jai Pal Singh P.W. 1 and his father Jagannath P.W. 2 as eye-witnesses. K. K. Gautam P.W. 3 was the Investigating Officer and constable Hari Prakash P.W. 4 had taken the dead body of the deceased from the spot for post mortem. The genuineness of the post mortem report was admitted by the defence side and as such the doctor was not produced. The prosecution case and the evidence appealed to the trial Judge who recorded the impugned judgment.

We have heard Sri A. N. Misra, learned Counsel for the Appellants and learned A.G.A. in opposition of the appeal.

The impugned judgment is assailed from the side of the Appellants on the grounds that there was no motive on their part to commit this crime and that Jai Pal Singh P.W. 1 having turned hostile, implicit reliance could not be placed on the sole testimony of Jagannath P.W. 2 without corroboration by independent sources. Learned A.G.A. has tried to stand by the side of the conviction recorded by the lower court, arguing that motive was inconsequential and that there was no ripple in the testimony delivered by Jagannath P.W. 2.

It admits of no doubt that Onkar was the victim of violence and died unnatural death in consequence of murderous assault on him.

We have carefully gone through the evidence on record in the light of the arguments advanced before us. As repeatedly said, motive is not evidence in a case. But in certain cases, like the present one, motive assumes importance. It has to be taken note of that the deceased was the own brother of the accused Appellant Tej Pal and uncle of another one Ram Kumar. The informant Jagannath P.W. 2 is also the own brother of the deceased and Tej Pal. The motive alleged by the prosecution against the accused Appellants in the F.I.R. for the commission of this crime was that Onkar was unmarried. He had share in agricultural land as also in the gher. He had been living with the accused Tej Pal for about 10-12 years. But sometime prior to the incident, a dispute had arisen between Tej Pal and Onkar with the result that Onkar separated himself from Tej Pal and started living with the complainant Jagannath P.W. 2. Tej Pal did not give the share of Onkar in the house and gher and, therefore, Onkar filed a civil suit against Tej Pal. Later on, due to intervention of the relatives a compromise was arrived at and Tej Pal had agreed to give Onkar his share in the house or gher and 15 bighas of agricultural land. Possession over the land was given to Onkar, but so far as his share in gher was concerned, Tej Pal had agreed to vacate the same after Holi festival. 3-4 days prior to the incident, Onkar had asked Tej Pal to vacate his share of gher but he was assaulted by lathis by Tej Pal and his son. Both the accused had allegedly threatened Onkar that they would vacate everything within 3-4 days. To this effect is the evidence of Jagannath P.W. 2.

In our opinion, there was no firm or quick igniting cause for the accused Appellants deciding to murder Onkar. He had already separated from Tej Pal after getting possession over his share of agricultural land and was living with Jagannath P.W. 2, Tej Pal, being in possession over Onkar''s share in gher, had an upper edge and was in advantageous position. The simple fact that Onkar was asking him to vacate his share of gher could not have ordinarily actuated him to commit the murder of his own brother with the aid of his son. Such a dispute over the vacation of Onkar''s share in the gher by Tej Pal was too tenuous for the taking of the extreme step of eliminating him altogether. It is a case where the motive alleged by the prosecution against the accused Appellants right from the beginning with the lodging of the F.I.R. itself, fails to stand judicial scrutiny. This is one aspect of the matter which calls for very cautious scrutiny of the ocular testimony adduced by the prosecution.

Obviously, it was a night incident. In other words, night had been chosen as the time for committing this crime by the culprits, whosoever they were. We find that a very sad feature of the case is that Jai Pal Singh P.W. 1 (son of Jagannath P.W. 2) who was also the scribe of the F.I.R., did not support the prosecution case at all. He was declared hostile and was cross-examined by the prosecution. What is important is that he is not a stranger who could have been won over or prevailed upon by the accused-Appellants to cross side. Rather, as stated above, he is the own son of Jagannath P.W. 2. His version is that in between the fateful night, he, his father Jagannath and uncle Onkar were sleeping in dukaria but there was no light. Four persons entered the dukaria with torches and asked about the house of Ram Autar Motiwala as they wanted to commit dacoity at his house. He further stated that owing to darkness, he could not identify any of them. They took out Onkar and closed the door of house with wire. After sometime, he opened the door and came out and saw that four persons assaulted his uncle with pharsa on the chak-road and then they ran away. He along with his father reached the chak-road and found Onkar to be dead. Not only this, he also stated that he named Tej Pal and Ram Kumar in the F.I.R. falsely. On being cross-examined by the State counsel, he stated that he had a suspicion against the accused Appellants and, therefore, named them in the F.I.R. He could not even say whether a lantern was glowing in the dukaria. The possibility of this witness crossing over to the side of the accused Appellants under their pressure being obliterated, the inference is justifiable that his conscience did not permit him to stand by the side of his father and tender false evidence before the Court. The statement of Jai Pal Singh P.W. 1 being not helpful at all to advance the prosecution case, we are left with the solitary evidence of Jagannath P.W. 2 which, in our opinion, is incapable to form the basis for the conviction of the accused Appellants. We should state our reasons to make our meaning clear.

The case of the prosecution as per the testimony of this witness is that the two accused Appellants were accompanied by two other unknown persons who were with open faces. It means that two hired assassins were available to the accused Appellants. When hired assassins were available to the accused Appellants, it was hardly necessary for them to go to the spot to murder Onkar, taking risk of being recognised by the witnesses. Further, according to his version, the two accused Appellants had muffled up their faces. On being questioned as to how could they be recognised by him, his answer was that he could recognize his kith and kin even by apparel. He also stated that he recognised them by voice. The evidence of identification of a person by timbre of his voice may be possible in respect of known person, but it does not stand to logic that if the accused Appellants had muffled up their faces to conceal their identity, then they would have uttered something at the spot to facilitate their recognition. Muffling up of the faces by them indicated their intention to conceal their identity. By their own act of utterances, they would not have spoiled their precaution of concealing the identity by muffling up their faces. There is no evidence to indicate that any grappling had taken place at the spot to uncover them. So, the alleged recognition of the accused Appellants by Jagannath P.W. 2 by their voices does not inspire judicial confidence. Further, they would not have ordinarily left him unharmed. Their grudge against Jagannath P.W. 2 was almost the same as that against Onkar because Onkar was living with him and he (Jagannath) was his helper in demanding the vacation of his (Onkar''s) share in the gher. This part of the prosecution story is also incongruent that the victim was taken from dukaria to chak-road by the culprits. The job could be accomplished in the dukaria itself instead of the risk being taken by the culprits to be nabbed at the hands of villagers on shouts being raised while taking the victim to the chak-road. The F.I.R. states that on the shouts of Jagannath and his son, a number of villagers had collected with torches. The name of none of the witnesses was given in the F.I.R. On being interrogated on this aspect of the matter, Jagannath P.W. 2 could not give the name of anyone in the Court also and offered trumpery explanation that in the darkness, he could not pay attention as to who of the public had appeared there, though he insisted that a number of villagers had collected there. Had any independent witness been examined, that could lend some credence to the testimony of Jagannath P.W. 2, at least about the manner of the incident.

For all the above reasons, it is not possible to uphold the conviction recorded by the trial court on the basis of the solitary statement of Jagannath P.W. 2, which, as we indicated, is replete of incongruities. The possibility cannot be ruled out that for the greed of estate of Onkar (unmarried brother of the complainant Jagannath and the accused Tej Pal), Jagannath P.W. 2 is trying to make capital of his unfortunate murder by naming his own brother and his son as murderers so that they could be deprived of his (Onkar''s) share.

In the result, we allow the appeal and set aside the impugned conviction and sentence passed by the learned trial court. The Appellants are on bail.

The judgment be certified to the lower court for incorporating necessary entries in the concerned register within two months from the date of receipt of a copy of this order along with the record which shall be sent to the court below forthwith.