Yashpal vs State of U.P.

M.M. Lal, J.—This is an appeal against the judgment and order dated 27-1-1978 passed by Sri S.K. Jain, 1st Addl. District & Sessions Judge, Saharanpur, whereby he has convicted Yashpal Appellant u/s 302 Indian Penal Code and sentenced him to undergo imprisonment for life.

According to the case of the prosecution. Yashpal Appellant and Pala deceased used to earn their livelihood by collecting and selling fuel-wood from the jungle of Rodi Maidan, Hardwar. They were living in separate huts, which were adjoining to each other. Pala deceased had no hut of his own and therefore, he was living with PW 3 Smt. Sukhiya informant in her hut. Yashpal Appellant had borrowed a sum of Rs. 10/- from Pala deceased, which he had not paid despite demand. On account of the same Pala deceased had seized, a bundle of fuel-wood belonging to the Appellant one day prior to the incident. It is further the case of the prosecution that on 28-4-1977 at about 1.30 P.M. when Pala deceased, Smt. Sukhiya PW 3, Gautam PW 4 and Vijay PW 5 were sitting at the hut of Smt. Sukhia, the Appellant came there and called Pala deceased. The Appellant took Pala deceased aside at a distance of three, four steps from the said hut. There took place between them a conversation regarding the aforesaid sum of Rs. 10/- and seized bundle of fuel wood. On hearing heated arguments between them Smt. Sukhiya, Gautam and Vijay went there. Smt. Sukhiya asked the Appellant as to why he was not paying Pala his Rs. 10/-, Just at that time the Appellant took out a knife from the fold of "Lungj" and with the same caused injuries to Pala deceased. Smt. Sukhiya PW 3, Gautam PW 4, Vijay PW 5 and one Hari, who had also come there, took Pala decseaaed to the Hospital, where he ultimately died on the same day at 6.45 p.m. After leaving Pala deceased at the Hospital Smt. Sukhiya went to the Police Station Hardwar, situate at a distance of four furlongs, where she lodged report of the incident on the same day at 3.15 P.M.

In support of its case prosecution examined PW 3 Smt. Sukhiya and PW 4 Gautam, who gave an eye witness account to the incident. Although PW 5 Vijay was an eye witness yet he did not support the case of the prosecution. PW 6 Baji Ram was a witness of recovery. PW 7 Dr. V.K. Choudhary, Medical Officer G. D. Hospital Hard war had examined Pala deceased on 28-4-1977 at about 2 P.M. and found the following injuries on his person:

Incised wound 3 cm. x 1.05 cm. x 1 cm. on right hypochondrium 3 cm. below sub-costal margins.

Stab wound 2 cm x 1 cm x abdominal cavity deep. Omentum was coming out from the wound.

Stab wound 1 cm x 0.5 cm x 1.05 cm deep on lateral wall of chest, 4 cm below axilla.

Abrasion 3 cm x 1 cm on front of right side chest, 2 cm below medial end of right clavicle.

The Post Mortem examination of the dead body of Pala deceased was conducted by PW 11 Dr. Brahm Suman Lai, the then Superintendent of G. D. Hospital, Hardwar on 29-4-1977 at 10.30 a.m. He had found the following external marks of injuries on the dead body of Pala deceased:

Abrasion 3 cm x 1 cm in the middle of the chest.

Surgical stitched wound, left side of chest in the axillary line, 4 cm below the left axilla, one stitch was (sic). On opening the wound, he found it 1 cm x 0.5 cm x 1.5 cm transversely inward.

Surgically stitched wound left side chest just above costal margin in the left asilla line. On the opening the wound, it was found 2 cm x 1 cm x deep to the abdominal cavity. On removing the stitch the blood was coming out from inside the abdomen. It was 10 cm below injury No. 2.

Surgically stitched wound 3 cm x 0.5 cm x deep to abdominal cavity on the right side upper abdomen just below sub costal margin in the middle clavicular line.

According to PW 1 Dr. Brahm Suman Lai the death of Pala, deceased was caused due to shock and haemorrhage as a result of the aforesaid injuries No. 3 and 4.

PW 2 Mool Chand Sharma was Head Costable at Police Station Hardwar. He was examined to depose that on 28-4-1977 Smt. Sukhiya had come to the Police Station to lodge report of the incident. PW 9 Kiran Pal Singh and PW 2 head constable were formal witnesses. The investigation of this case was conducted by PW 8 Triveni Datt Sharma S. I. He has deposed that on 28-4-1977 at about 6 P.M. after receiving an information, through an informer, he, along with the witnesses went behind Balkeshwar temple to And the Appellant hiding himself there in a "Nala", where he arrested the Appellant. At that time the Appellant told that he could give the knife with which he committed murder. According to PW 8 Triveni Datta Sharma, the Appellant led the police party and witnesses at a distance of about 50 paces towards west and then after removing a stone brought out a blood stained knife. On 29-4-1977 Sri Triveni Datta Sharma I. O. went to G. D. Hospital, Hardwar and took the dead body of Pala deceased in possession and prepared the "Panchayatnama" thereof. On the same day he recorded statements of Smt. Sukhiya, Gautam and Vijay. He also inspected the place of occurrence and prepared site plan thereof. He did not find any blood at the place of occurrence. PW 6 Bajai Ram is the witness of the recovery of the aforesaid knife.

The Appellant in his statement denied the '' case of the prosecution. He stated that his hut was not close to the hut of Smt. Sukhiya. He further stated that Smt. Sukhiya had illicit relations with Pala deceased and that the husband of Smt. Sukhiya committed murder of Pala deceased and in order to save her husband she has falsely implicated him. The Appellant, however, did not produce any evidence in defence.

The learned lower court believed the case set up and evidence produced by the prosecution and accordingly convicted and sentenced the Appellant as aforesaid. Aggrieved by the same the Appellant has filed the present appeal.

In order to prove its case against the Appellant prosecution has produced two types of evidence; firstly, the evidence regarding the recovery of aforesaid knife by the Appellant and, secondly, the eye witness account given by the aforesaid eye witnesses. As regards the recovery of knife the prosecution has examined PW 6 Baji Ram and PW 8 Triveni Datt Sharma I. O. who have deposed that on 28-4-1977 at about 6 P.M. when the Appellant was arrested he led the police party to a "Nala" where, after removing a stone, he handed over a blood stained knife. Ex. Ka-5 is a recovery memo which was prepared at that time. It is stated in the same that while handing over the said blood stained knife the Appellant had stated that this was the knife which he had struck in the stomach of Pala deceased ("Yahi vah chakoo hai jisko maine Pala key peet main maara tha"). In his evidence PW 8 Triveni Datt Sharma I. O. has stated that after his arrest the Appellant stated that he could give knife, with which he had committed murder. "Usne kaha chakoo jissey maara hai meio dey sakta noun". PW 6 Baji Ram has simply stated that after his arrest when the Appellant was interrogated he stated that he would give the knife ("Usney bataya ki main chakoo dey sakta houn").

It may be observed that the confession made by the Appellant to the police at the time when he was under arrest that he had committed murder was clearly inadmissible in evidence recovery of the knife was also not incriminating against the Appellant because it had not been proved in this case that it was the Appellant who had concealed the aforesaid knife at the aforesaid place. In our opinion the recovery of the aforesaid knife at the instance of the Appellant could become incriminating against the Appellant only when it was proved that he was author of the concealment of the said knife. In this case there is no evidence whatsoever that it was the Appellant who had concealed the said knife at the aforesaid place. Neither in the recovery memo nor in the evidence of any witness it has come that at the time of the recovery of the said knife the Appellant had stated that it was he who had concealed the said knife.

In Pohalya Motya Valvi Vs. State of Maharashtra, the Appellant who was charged u/s 302, Indian Penal Code, after his arrest gave information which led to the discovery of a blood stained spear, in that case the following observations made by Hon. Supreme Court are quite relevant:

The recovery of a blood stained spear becomes incriminating not because of its recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime lies in the authorship of conceal ment, namely that the Appellant who gave information heading to its discovery was the person who concealed it.... The Appellant may have only the know ledge of. the place where it was hidden. To make such a circumstances incriminating it must be shown that the Appellant himself had concealed the blood stained spear which was the weapon of offence.... Relying upon the aforesaid observations made by Hon''ble Supreme Court we are of the opinion that when in this case it was not proved that the Appellant was the author of the concealment of the aforesaid knife, the evidence regarding recovery of the said knife at the instance of the Appellant did not connect him in any way with the murder of Pala deceased.

There is another lacuna in this case which makes the recovery of the aforesaid knife worthless. In our view before the fact of recovery of the aforesaid knife by the Appellant can be used against the Appellant it has to be made out that the said knife was the knife with which the murder of Pala deceased was committed. It may be noted that in this case the prosecution did not connect the said knife with the murder of Pala deceased. No doubt the said knife was sent to the Chemical Examiner for examination and Chemical Examiner gave a report that said knife was blood stained yet for the reasons best known to the prosecution no report of the serologist was invited. Therefore, it could not be proved in this case that the blood on the aforesaid knife was human blood or that the said blood was of Pala deceased. Further, it may be noted that none of the eye witnesses in this case deposed that the aforesaid knife, which was recovered at the instance of the Appellant, was the same knife with which the murder of Pala deceased was committed. In the absence of any evidence connecting the said knife with the aforesaid crime we are of the opinion that the recovery of the said knife is irrelevant and does not connect the Appellant with the murder of Pala.

Therefore, the recovery of the aforesaid knife does not give any advantage whatsoever to the prosecution to prove its case against the Appellant.

After the evidence of the recovery of the aforesaid knife is discarded the only evidence which remains against the Appellant is that of the eye witnesses. There are only two eye witnesses who have tried to support the case of the prosecution. PW 1 Smt. Sukhiya has stated in her evidence that on the day of the incident at 1.30 P.M. when she was sitting in her hut, along with Pala deceased Vijay and Gautam, the Appellant came there and after calling Pala deceased took Pala deceased aside at a distance of 3, 4 steps. At that time heated arguments took place between Pala deceased and Appellant regarding the sum of Rs. 10/- which the Appellant had taken from Pala deceased and the bundle of wood belonging to Appellant which Pala deceased had seized one day prior to the incident. She further deposed that she also went there and told the Appellant as to why not he was prepared to repay Rs. 10/- and take his wood. According to her the Appellant at that time struck Pala deceased thrice with a knife. She then took Pala deceased to the Hospital and thereafter she went to the police station to lodge report of the incident. PW 4 Gautam also deposed likewise. We have gone through the evidence given by these two witnesses but do not feel impressed with the same.

PW 3 Smt. Sukhiya cannot be said to be a reliable witness at all. In her evidence she described herself as widow of Lakshmi. She deposed that her husband had died since 2, 3 years. She denied that she had remarried. She specifically stated that she did not know any person of the name of Upendra. It may be noted from Col. 1 of the FIR that PW 3 Smt. Sukhiya was described as the wife of one Upendra at the time when the FIR was lodged. Annexure 3 is the GD by which this case was registered. In the same Smt. Sukhiya was described as wife of Upendra. Anyway, if there was any doubt regarding the marital status of Smt. Sukhiya the same was removed by PW 4 Gautam, who deposed that the husband of Smt. Sukhiya was in Bihar, that he had seen him when he came to Hardwar at the time of Holi about 6, 7 months ago. It is thus clear from the said admission made by PW 4 Gautam, and the statement made by Smt. Sukhiya at the time of lodging FIR that she was not a widow but had a living husband. She had thus spoken a lie at the time of giving her evidence that she was a widow and that she had no living husband of the name of Upendra. Possibly Smt. Sukhiya had spoken a lie in the said respect for discrediting the contention of the Appellant that Smt. Sukhiya had illicit relations with Pala deceased and that it was the husband of Smt. Sukhiya who, on account of illicit relations of Smt. Sukhiya, with Pala deceased, had murdered Pala. It may be noted that in his statement recorded u/s 313 Code of Criminal Procedure, the Appellant specifically stated that Smt. Sukhiya had illicit relations with Pala deceased and that in order to save her husband she had falsely implicated him.

The record of this case shows that Smt. Sukhiya had also spoken a lie with respect to her relationship with Pala deceased. Smt Sukhiya in the FIR stated that Pala deceased was her '' Devar '' i.e. younger brother of her husband, PW 4 Gautam described Pala deceased as full of youth. In the post mortem Examination age of Pala deceased was observed as 25 to 30 years. Smt. Sukhiya gave bet age as 35 years. When Smt, Sukhiya PW 3 realised significance she fa her evidence denied any relationship with Pala deceased. She also stated that it was only two, four days prior to the incident that Pala had started to live and take meals with her. In our view when Pala deceased was not at all related to Smt. Sukhiya and he was a stranger so much so that he bad started staying with her from 2, 4 days prior to incident then she would not have described him as hit'' Devar'' not at one but at three different places in the FIR. We are thus satisfied that Smt. Sukhiya PW 3 spoke a lie with regard to her relationship with Pala deceased as well. Therefore, Smt. Sukhiya was not at all reliable witness and she could not be believed.

Learned Deputy Government Advocate argued before us that Smt. Sukhiya had no enmity with the Appellant and, therefore, she could not have possibly falsely implicated Appellant in this case had he not committed this murder. We find no force in this argument because when Smt. Sukhiya has been found to be unreliable there was no question of placing reliance upon her. Anyway, we have found that Smt. Sukhiya bad also a grievance against the appelant. "In the FIR she has stated that when the Appellant and Pala deceased were quarrelling she had gone there to tell the Appellant that he also owed a sum of Rs. 10/- to them and why not he was repaying the same (" Hamarey bhi turn per thus rupay haa unhey vaapas de do "). The said statement shows that it was the contention of PW 3 Smt. Sukhiya that the Appellant owed Rs. 10/- both to her and Pala deceased which he had not repaid. If this is so it is obvious that Smt. Sukhiya was also aggrieved with the Appellant. In the result, therefore, we find it difficult to believe or place reliance upon Smt. Sukhiya.

PW 4 Gautam is the only other eye witness who has deposed against the Appellant. Learned Counsel for the Appellant has argued before us that PW 4 Gautam was not an independent witness and therefore he should not be bdieved. We find force in the said argument. PW 4 Gautam has admitted in his evidence that his wife and Smt. Sukhiya belong to same area. ("Meri bibi Sukhiya ke desh ki ha"). The said statement shows that there was affinity between Smt. Sukhiya and wife of PW 4 Gautam on account of which they wen close to each other. Then there are some discrepancies in the statement of PW 4 Gautam and Smt. Sukhiya. PW 3 Smt. Sukhiya has deposed that Pala deceased had fallen down after receiving two knife blows and that Appellant had given third knife blow to Pala deceased when he had fallen on the ground. PW 4 Gautam on the other hand has specifically stated that the Appellant had not given any knife blow to Pala deceased after he had fallen on the ground. Again as against the statement of PW 3 that at the time of the incident Pala deceased was not wearing shirt or baniyan, PW 4 Gautam had deposed that Pala deceased was wearing either a shirt or baniyan. In these circumstances we are of the view that PW 4 Gautam as well cannot be believed and that the conviction of the Appellant could not be maintained on his evidence.

The case of the prosecution and the version given by the aforesaid two eye Witnesses also belied by the evidence of Vijay PW 5. According to the case of the prosecution PW 6 Vijay was also present at the time of the incident so much so that he had gone to the police station along with Smt. Sukhiya to lodge report of the incident. This witness has denied that Pala was murdered in ibis presence.

Learned Government Advocate has argued before us that PW 5 Vijay had been won by the Appellant and he has not spoken truth. In our opinion the said argument is devoid of force. It may be noted that the Appellant was not a man of any status. He was simply a labourer whose only livelihood was to collect fuel wood from Jungle and sell the same. His financial position was so low that once be had to borrow mere sum of Rs. 10/- which he could not even repay. The record shows that after his arrest in this case he could not get himself bailed out. He remained in jail during his prosecution in the court below. He could not engage a counsel of his own. An amicus curiae has to be appelated and engaged for him in the court below. In view of this matter it was not probable that while in jail the Appellant could have influenced Vijay. Thus PW 5 Vijay has belied the case of the prosecution.

To sum up therefore the aforesaid knife said to have been recovered at the instance of the Appellant was not connected with the crime either by a report of the Serologist or eye witnesses besides it was not proved that the Appellant was the author of the concealment of the said knife. Tbereiore, said knife does not connect the Appellant with this crime whatsoever. As regards the three eye witnesses examined in this case PW 5 Vijay has not supported the case of the prosecution. PW 3 Smt. Sukhiya clearly told lie with regard to her merital status and her relationship with Pala deceased. She also appeared to be aggrieved with the Appellant. Smt. Sukhiya PW 3 does not appear to be a reliable and truthful witness. PW 4 Gautam had affinity with Smt. Sukhiya on account of his wife. There was discrepancy also in his evidence. On the basis of such an evidence it cannot be said that the case was made out against the Appellant beyond reasonable doubt.

Accordingly, this appeal is allowed. The conviction and sentence of the Appellant u/s 302 Indian Penal Code are set aside. He is on bail. He need not surrender to his bail bond which hereby stand discharged.