Vinod Kumar vs State of U.P.

S.I. Jafri, J.—Appellant Vinod Kumar has filed this appeal against his conviction u/s 302 IPC and sentence of life imprisonment recorded by Sri N.S. Gupta, IV Additional District and Sessions Judge, Bulandshahr by his judgment and order dated 1-4-1976. Jai Prakash and Divendra Prakash, father and uncle of Appellant Vinod Kumar were also prosecuted alongwith Vinod Kumar on the charge u/s 302 read with Section 34 IPC but they were acquitted by the Trial Court. In this case the accused were charged for the murder of Arvind Kumar s/o Shyam Lal which took place at about 8 P. M on 12-9-19 "6 at the Tirana of Bara Bazar at Sikandrabad, in the District of Bulandshahr.

The accused Vinod Kumar, Jai Prakash and Divendra Prakash and the deceased Arvind Kumar are collaterals having common ancestor, their pedigree is given below.

* * * * * 3. It may further be noted that Jai Prakash and Divendra Prakash accused were seven brothers viz. Ram Kumar, Krishna Kumar, Rajendra, Surendra and Ram Autar and the aforesaid co-accused Jai Prakash and Divendra Prakash. Likewise Arvind Kumar were eight brothers, viz. Mahendra Kumar, Prem Kumar, Prakash, Bipin, Sunil and Sudhir including the deceased Arvind Kumar and Sushil Kumar the First informant of this case.

The prosecution case is that Shyam Lal, the father of the deceased Arvind Kumar and accused Jai Prakash and his brother Ram Kumar were litigating in connection with their landed property. Several civil and criminal cases were fought between them, and some of them were also pending between the parties at the time of occurrence. It is also alleged that in the after-noon of 12-9-1976, Arvind Kumar deceased had quarreled with Pradeep Kumar, the son of the accused Jai Prakash and also the younger brother of the Appellant Vinod Kumar and the deceased Arvind Kumar had slapped Pradeep Kumar. On account of this beating, the Appellant and his father Jai Prakash were very much aggrieved. It is also alleged that on the date of occurrence at about 7-30 P.M. on 12-9-1976, Arvind Kumar was returning to his house from Devi Mandir and when he reached the Tiraha of Bara Bazar near water-hut (Piau) at about 8 P.M., the accused Jai Prakash and Divendra Prakash also reached there and they caught hold of the hands of the deceased Arvind Kumar and shouted that he should be given a lesson for slapping Pradeep Kumar. Thereupon, Vinod Kumar Appellant then took out a knife from his Anti and stabbed on the chest of the deceased Arvind Kumar. The deceased Arvind Kumar fell down on the ground at the Tiraha on receiving the injury and succumbed to his injuries on the spot. PW-2 Sushil Kumar, the brother of the deceased Arvind Kumar was at that time at the shop of Kallu betel seller where he had come to take betels and Sushil Kumar had witnessed the entire occurrence from the shop of Kallu in the light of the electric rods, torches and bulbs near the water hut (Piau) where the deceased was stabbed. PW-2 Sushil Kumar cried out and rushed to save the deceased on seeing the assault and alongwith him, Hari Paliwal, Babu and other persons also rushed to the spot and on seeing the witnesses, the accused had fled to yards the Halwai Wali Gali and after running for about 10 to 15 paces, the Appellant Vinod Kumar sustained a Thokar and he fell down on the ground and the knife with which the Appellant had stabbed the deceased, also slipped from his hand and dropped on the ground and the said knife was picked up by the accused Jai Prakash and the accused Jai Prakash and Divendra Prakash managed to escape but Appellant Vinod Kumar was apprehended by Sushil Kumar and others on the spot. Sushil Kumar, sent the injured Arvind Kumar to the Hospital through his brother Rakesh Kumar and other persons on a Rickshaw. Sushil Kumar then scribed FIR Ex. Ka. 1 at the place of occurrence and reached Police Station Sikandrabad at about 8.30 P.M. alongwith Appellant Arvind Kumar and others and he handed over the Appellant in the custody of Head Constable Sukh Pal Singh PW 3. He also gave his written report to the Head Constable who prepared the Chik Report Ex. Ka. 2 on the basis of the aforesaid written report. He also registered a case u/s 307 IPC in the General Diary of Police Station. Copy of the said General Diary entry is Ex. Ka. 3. He made entries in various registers maintained at the Police Station. The Head Constable also put the accused/Appellant behind the Lock-up of the Police Station and noted this fact in the General Diary Ex. Ka. 3. It was mentioned in the General Diary report Ex. Ka. 3 that when the said entry was being written, the Station Officer of Police Station, Sikandrabad received a memo from the Superintendent Men''s Hospital Sikandrabad for taking necessary action, intimating him that the dead body of Arvind Kumar had been brought to the Hospital by his elder brother Rajesh Kumar. The said memo was written by the Doctor at 8.25 P.M. The Head Constable also copied out the aforesaid memo in the end of General Diary entry Ex. ka. 3 and, thereafter, the Head constable converted the case u/s 307 to one 302 IPC in the G.D. vide the entry Ex. ka 3. PW 7 B.N. Chaturvedi was present at the Police Station and he took up the Investigation of the case. He recorded the statement of PW 2 Sushil Kumar at the Police Station and readied the Hospital at about 10 P.M. alongwith S.I. Harish Chandra PW 4 and on the direction of the aforesaid Investigating Officer, Harish Chandra PW 4 prepared the inquest report Ex. ka. 4 on the dead body of the deceased and sent the same in sealed cover to the District Mortuary Bulandshahr on 13-9-1976 through constables PW 5 Banwari Lal and Kishan Chand for post mortem examination. PW 7 B.N. Chaturvedi, Investigating Officer inspected the place of occurrence and prepared the site plan Ex. Ka 10. He also collected the blood stained and plain earth from the place of occurrence and prepared memo Ex. Ka. 11.

Appellant Vinod Kumar was examined at 10.15 P.M. on 12-9-1976 by PW 8 Doctor H.U.K. Zuberi, Medical Officer, District Hospital Bulandshahr and he found the following injuries on his person:

Lacerated wound 1 cm x 1/2 cm x muscle on inner side of left lower lip.

Liner abrasion 4 cm on back of right side middle part.

According to the opinion of the Doctor, the injuries were simple and were caused by blunt object and duration was stated to be fresh. The said injury report is Ex. Ka. 13.

PW 6 Doctor Om Prakash conducted autopsy on the dead body of the deceased Arvind Kumar at 3 P.M. on 13-9-1976.

The following Anti-mortem injuries were found on the person of the deceased Arvind Kumar on autopsy conducted by PW 6 Doctor Om Prakash. He also prepared post mortem report which is Ex. Ka. 9 ''.

Incised wound 7" x 3 " x cavity deep oblique extending from right nipple to left upper part rib cut lungs cut.

Incised wound 1" x 1/2 " x cavity deep. Loop of intestine cut just above synphysis pubicus.

According to the opinion of Doctor, the cause of death was shock and haemorrhage resulting from chest injury.

After completing the Investigation PW 7 B.N. Chaturvedi, Investigating Officer, filed chargesheet Ex. Ka. 12 against the Appellant Vinod Kumar and co-accused Jai Prakash and Devendra Prakash.

The Appellant pleaded not guilty to the charge and stated that he was falsely implicated in the case due to enmity. He further stated that he was arrested by the Sub-Inspector from his house and he was beaten and tortured by the Police at the Police Station. He also stated that he was also administered electric shock by the police at the Police Station.

We have heard Sri P.C. Chaturvedi, the learned Counsel for the Appellants and the learned Government Advocate for the State and also the learned Counsel for the complainant at great length and we feel that the appeal of the Appellant must be allowed and the Appellant must be acquitted.

The prosecution examined eight witnesses in support of its case and out of them, PW 1 Krishna Mohan and PW 2 Sushil Kumar are the witnesses of the occurrence.

PW 1 Krishna Mahan has stated that at the time of occurrence, he had gone to the shop of Shivji Panwala for eating betels. According to him, the shop is situated at a distance of about 150 to 175 yards away from his house and while he was standing at the shop, he heard the screams of Arvind Kumar deceased (" Bachao Bachao"). On hearing the alram, he rushed towards ''Tiraha'' and saw that the right hand of Arvind Kumar deceased had been caught hold by accused Divendra Prakash and his left hand was also caught hold by Jai Prakash accused and, then, the Appellant Vinod Kumar after whipping out the knife from his ''Anti'' inflicted blow on the chest of deceased Arvind Kumar and as a result of the injury, the deceased Arvind Kumar fell down on the ground and all the three accused ran through the Halwai Wali Gali. He also stated that on hearing the alarm of the deceased Arvind Kumar, Ajai Kumar, Devendra Kumar, Girish Kumar and Jatan Prakash also arrived there and at the time of occurrence, Hari Babu, Ajai Kumar and many other persons were present He further stated that he alongwith others, gave a chase for a short distance when Appellant Vinod Kumar got a ''Thokar'' and he stumbled down on the ground and his knife also lost the grip of his hand and it fell down on the ground and, then, Jai Prakash accused who was running behind Vinod Kumar, Appellant, picked up the said knife from the ground and made good his escape alongwith Devendra Prakash but Vinod Kumar Appellant was apprehended on the spot and at the same time, PW 2 Sushil Kumar, brother of Arvind Kumar deceased also arrived at the place of occurrence and then Sushil Kumar, Girish Kumar, Babu and Hari Babu and others overpowered the Appellant Vinod Kumar and took him near the place where Arvind Kumar was lying on the ground having wound on his chest. The blood was also oozing out from the wound of Arvind Kumar and, then, Rajesh, brother of Arvind Kumar deceased and others came there and hired a Rickshaw and took Arvind Kumar to the Hospital. He, Sushil Kumar and others took the accused to Police Station and then he went to his house.

From the above statement of PW Krishna Mohan, it is absolutely clear that at the time of actual assault on the deceased Arvind Kumar, PW 2 Sushil Kumar was not present there as PW 1 Krishna Mohan has very clearly excluded the presence of Sushil Kumar at the time of occurrence when the deceased Arvind Kumar was assaulted. PW 1 Krishna Mohan had stated that Sushil Kumar reached the place of occurrence after Vinod Kumar Appellant had fallen down on the ground as his foot had got struck against some object. Moreover, Krishna Mohan had also admitted in his evidence that he did not tell the Investigating Officer that Sushil Kumar PW 2 was present at the time of occurrence. It may further be noted that PW 1 Krishna Mohan had filed an affidavit dated 28-12-1976 in the Court of the Sessions Judge Bulandshar. The said affidavit is Ex. Kha 7 on the record and this document is also numbered as 11 Kha on the record. In Para 4 of this affidavit, it is mentioned that the deponent did not sec the occurrence at all and it had also been said in the affidavit that he had been named as prosecution witness in the case because he was a friend of PW 2 Sushil Kumar. In the course of cross examination when this witness was confronted with this affidavit, the witness replied that he was forced to file this affidavit by the Appellant and his associates. DW 1 Nahar Singh, Advocate has been examined as a defence witness in this case and he has deposed that the witness Krishan Mohan had sworn the affidavit on his own accord. Nahar Singh DW 1 had also verified his signature on Ex. kha. 7 and it has been marked as Ex. kha. 3. He had also identified the signatures of Krishna Mohan who had signed before him on Ex. kha. 7. In cross examination, the witness Krishna Mohan has also admitted that he had also filed an affidavit in the Allahabad High Court stating that he had filed the affidavit in the Court of Sessions Judge at Bulandshahr on 20-12-1976 under duress as the accused persons had taken him to the Court under their custody on a false pretext and also under the threat of pistol with the result that the deponent was so-much terror-struck that he had no option left but to sign on the said affidavit. This affidavit was filed by Krishna Mohan in the High Court on 9-2-1977 opposing the Criminal Bail Application No 734 of 1977 filed on behalf of the Appellant in the High Court. A certified copy of the said affidavit of Krishna Mohan PW 1 is on the record as paper No. 77/8 Ka. It may be noted that the affidavit in the High Court opposing the bail application of the Appellant was filed by PW 1 Krishna Mohan after a lapse of more than two months of the filing of the affidavit Ex. kha. 7 before the Sessions Judge Bulandshahr. It may further be noted that after filing the first Affidavit on

28-12-1976 in the Court of Sessions Judge at Bulandshahr stating that he did not witness the occurrence at all. PW 1 Krishna Kumar did not send any application to any authority complaining that he was forced by the accused to file the above affidavit in the Court of Bulandshahr. He also admitted in his evidence that after the filing of the aforesaid affidavit on 28-12-76 he did not disclose to any person for 3 or A days regarding filing of the aforesaid affidavit. PW 1 Krishna Kumar in view of the aforesaid two contradictory affidavits, emerges to be a white-liar and we are fully satisfied that it will not at all be salf to place any reliance on the testimony of such a witness who take somersaults now and then. Moreover PW 1 Krishna Kumar was so much interested in getting the bail application of the Appellant rejected by the High Court that he took the trouble of undertaking journey from Bulandshahr to Allahabad for filing his affidavit opposing the bail application of the Appellant in the High Court. In view of his statement and his contradictory affidavits, we are fully satisfied that PW 1 Krishna Mohan is a got up witness and he has been nominated in First Information Report as a witness at the instance of PW 2 Sushil Kumar with whom he was friendly as admitted by him in his affidavit dated 28-12-1976. Once, a prosecution witness goes back on his earlier statement by filing an affidavit and if there is no proper and plausible explanation on the record for filing subsequent affidavit, the evidence of such a witness is not worthy of reliance and the Court should not hesitate in disbelieving the evidence of such a witness who takes somersault every now and then-- sometimes in favour of the prosecution and sometimes in favour of the defence. The evidence of such a witness is worthless, as such a witness is highly unreliable.

There is another significant circumstance which also demolishes the presence of this witness at the time of occurrence. The deceased according to the post mortem report sustained two anti-mortem injuries which are given below:

Incised wound 7" x 3" x cavity deep extending from right nipple to the left upper abdomen rib cut lungs out.

Incised wound 1" x 1/2" x cavity deep loop of intestine cut just above symphysis pubicus.

It may be noted that PW 1 Krishna Mohan had only stated that he had seen the accused inflicting chest injury on the person of the deceased. Moreover, this witness has said that he had also seen the Appellant taking out the knife from his ''Anti'' and striking the knife blow on the chest of the deceased. Therefore, it is absolutely clear that according to his statement he had seen the assault on the deceased right from the initial stage. PW 1 Krishna Mohan did not speak about the second injury as mentioned above. Therefore, his evidence does not explain the presence of second injury which was found just above the symphysis pubious of the deceased by the Doctor Om Prakash PW 6 and, therefore, his evidence is not worthy of reliance on this ground as well as he had not explained the presence of second injury found on the person of the deceased. He speaks only about the single blow inflicted on the chest of deceased by the Appellant.

PW 1 Krishna Mohan is also a chance witness. He also did not state before the Investigating Officer during Investigation that when he had gone to the shop of Shivji Panwala, he, then, had seen the occurrence. He had stated that he had gone to the Police Station alongwith Sushil Kumar PW 2 and others with the Appellant but in the General Diary Ex, ka. 3, his name does not find place that he had accompanied PW 2 Sushil Kumar when he came to the Police Station for lodging the First Information Report alongwith the Appellant Vinod Kumar and instead the names of Girish Kumar, Ajai Kumar, Jatan Prakash and Dhirendra Prakash are mentioned in the G.D.

entry ka. 3 as the companions of Sushil Kumar when he reached the Police Station alongwith the Appellant Vinod Kumar for lodging the First Information Report.

Moreover, his part of the testimony to the effect that the co-accused Jai Prakash and Devendra Prakash had also participated in the occurrence, has not been relied upon by the trial Court. In view of the infirmity as shown above by the evidence of PW 1 Krishna Mohan, no reliance can be placed on his testimony. We have already held that Krishna Mohan PW 1 is a got up witness for the purpose of this case. Now, we are left with the sole evidence of PW 2 Sushil Kumar who is the brother of the deceased and also the First Informant of this case. He has admitted in his evidence that at the time of occurrence, several civil and criminal cases were pending between the father of the Appellant Vinod Kumar and his father and, therefore, the testimony of Sushil Kumar has to be fully serutinised for placing implicit reliance on his evidence. His part of the evidence regarding the participation of co-accused Jai Prakash and Devendra Prakash has been rejected by the Trial Court and the trial Court has gived cogent reasons for discarding the same. PW 2 Sushil Kumar like PW 1 Krishna Mohan did not explain the presence of second injury on the person of the deceased. He had also admitted that he had seen the Appellant taking out knife from his "Anti" and giving blow on the chest of the deceased. Therefore, according to the testimony of PW 2 Sushil Kumar, he had witnessed the occurrence from its initial stage and his evidence which did not explain the second injury of the deceased is not worth reliance in view of the medical evidence in this case. There is, thus, conflict between the injuries actually received by the deceased and the eye witness account given by the witnesses in this case as the evidence of both the witnesses as shown above did not explain the injury No. 2 of the deceased. He had also stated that at the time of the occurrence, he was taking betel from the shop of Kallu. His statement is not corroborated by any witness to the effect that he was present at the shop of Kallu at the time of assault on the deceased. Even PW 1 Krishna Mohan had excluded the presence of PW 2 Sushil Kumar at the time of assault on the deceased. Moreover, in this case, it has come on the record that a number of independent persons we-e present on the scene of occurrence but out of those persons not a single person was examined to corroborate the statement of Sushil Kumar PW 2. Therefore, where at the place of occurrence, independent witnesses were available and if the prosecution failed to examine during trial any one amongst those independent witnesses, a reasonable doubt is created regarding the genuineness of the prosecution case and, therefore, it will be highly unsafe to place any reliance on the testimony of PW 2 Sushil Kumar and PW 1 Krishna Mohan for the conviction of the Appellant in this case.

Another feature of the case which also requires consideration is that the two injuries of the deceased do not appear to have been caused by the same weapon. Injury No. 1 of the deceased " Incised wound of 7" x 3" x cavity deep cutting ribs of the deceased ", appears to have been caused by Kulhari or some heavy cutting weapon and, therefore, it also shows that the occurrence was not witnessed either by PW 1 or PW 2. The learned Govt. Advocate vehemently argued that in this case, the First Information Report was very prompt but a close scrutiny of the chik Report Ex. Ka 2 clearly indicates that it was prepared subsequently after the death of the deceased Arvind Kumar. In column No. 3 of the Chick Report Ex. Ka. 2 on the first page, the penal section written with a pencil is 307/302 IPC but in the body of the chik report, the allegations mentioned amount only to the offence u/s 307 IPC. This clearly shows that this Chick report Ex. Ka. 2 was prepared after the death of the deceased in the Hospital. It may further be noted that in the same column No. 3 of Chick report Ex. Ka. 2, where the Penal Section is written with pencil was section " 307/302 " IPC there is also a note written with ink that vide G.D. No. 34 dated 12-9-1976 Section 302 IPC is added. This note written with ink clearly shows that the Chick report Ex. Ka. 2 was prepared after the registration of the case u/s 302 IPC in the Q.D. No. 34, Ex. Ka 3. It may further be noted that G.D. entries at the Police Station regarding registration of cases are prepared subsequent to the preparation of the Chick Reports and are based on the contents mentioned in the body of the Chick Report. Therefore, the lodging of the First Information Report and the preparation of the Chick Report Ex. Ka. 2 at 8.30 P.M. on 12-9-1976 in this case is highly suspicious and appears to be ante-timed. It is quite apparent that the preparation of the Chick report Ex. Ka. 2 was withheld by the Investigating Agency and it was prepared subsequently after the preparation of the G.D. entry No. 34 Ex. Ka. 3 dated 12-9-1976 and, therefore, it is clearly established that the time given in the Chick report Ex. Ka. 2 is ante-timed and no reliance can be placed on the Police papers that the First Information Report in this case was really lodged at the Police Station at 8.30 P.M. on J 2-9-1976. It was also submitted by the learned Government Advocate that the medical examination of the Appellant at 10.15 p.m. on 12-9-1976 at the District Hospital Bulandshahr, goes to show that the accused was really arrested on the spot at about 8 p.m. on 12-9-1976. It may be noted that though in the injury report Ex. Ka. 13, the time of examination of injuries of the Appellant Vinod Kumar has been mentioned as 10.15 p.m. but in the Bed Head Ticket of Appellant Vinod Kumar as admitted by PW 8 Doctor H. U.K. Zuberi there are interpolations which may have been done by some nurse. In the Bed Head Ticket the time of admission is mentioned as 9-10.45. The Doctor stated that it appears that the nurse might have first written 9.45 but when she had realised the actual time was 10.45, then she had mentioned 10.45. The Doctor also admitted that there is a dot in between 9 and 10. He had also admitted that the time mentioned is not in his handwriting. Therefore, the examination of the Appellant at 10.15 p.M. on 12-9-1976 as stated by PW 8 Dr. H. U.K. Zuberi is also highly suspicious. Likewise, the time of examination of the Appellant at 10.15 p.m. as given in the injury report Ex. Ka. 13 by Dr. Zuberi is highly doubtful and not worth of belief.

It may further be noted that the Appellant had received only two minor injuries on his person which is also not probable if really he was arrested on the spot. In such a situation when an accused person is arrested on the spot after causing injuries to the victim, then, a good beating to the accused is generally meted out by the complainant''s party. Therefore, it is not probable and believeable that the Appellant was arrested on the spot as alleged by the prosecution. The assertion of the Appellant that he was arrested by the Police from his house and was given beating at the Police Station, appears to be probable. Moreover, the dramatic disappearance of the alleged knife from the place of occurrence also makes the prosecution case highly doubtful.

Having considered all the facts and circumstances of the case as stated above, we come to the irresistable conclusion that the story of the arrest of the Appellant on the spot set up by the prosecution is absolutely false. Moreover, one of the injuries of the deceased remained unexplained by the two eye witnesses examined in this case. We further hold that the two witnesses examined in this case are not only chance witnesses but also they are got up witnesses as from their evidence it is absolutely clear that they did not witness the occurrence at all. Their oral testimony is also belied by the medical evidence in this case. The infirmity in their evidence, as stated above, has also rendered their evidence unreliable and not worthy of any credence. We further hold that the First Information Report in this case has been ante-timed by the Police and therefore, it is highly doubtful if the First Information Report of this case was really lodged at 8.30 p.m. on 12-9-1976 at the Police Station. We further hold that the time of the examination of the injuries of the Appellant as mentioned in the injury report Ex. ka 13 has also been shown incorrectly by PW 8 Dr. Zuberi in league with the police to give strength to the alleged story of the arrest of the Appellant by the witnesses on the spot.

In the result, the appeal is allowed. The conviction and sentences as recorded by the trial court art set aside. The Appellant is on bail. He need not surrender. His bail bonds are cancelled.

Appeal allowed.