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State v. Manuwa & Others - GOVERNMENT APPEAL No. 114 of 1982 [2007] RD-AH 5257 (23 March 2007)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).





Hon'ble Mukteshwar Prasad, J.

Hon'ble S.C. Nigam, J.

(Delivered by Hon'ble Mukteshwar Prasad, J.)

This appeal under Section 378 Cr.P.C. has been filed by the State of U.P. against the judgment and order dated 3rd October, 1981 passed by the then Sessions Judge in S.T. No. 108 of 1980 whereby he acquitted all the three accused of all the charges framed against them.

In brief, the facts of the prosecution case giving rise to this appeal were as under:

P.W.1 Hamid, son of Faqira, lodged a report at Police station Gobardhan Mathura on 13.1.1981 at 8-45 P.M. and the local Police registered a case at case crime no.13 under Section 302 I.P.C. The informant alleged in his report that on 13.1.1981 at about 6-30 P.M. he accompanied by his father Faqira (deceased), his uncle Rafiq, servant Ashraf, son of Chhuttan, and one Kailash were proceeding towards Gobardhan along with several cattle through a canal road. Accused Manuwa, his son Habib and his brother Bhappa met the informant and others on the canal road and wanted to know their destination. The informant replied that they were going to Gobardhan and did business of cattle. The informant's sister Smt. Sammo was married to Habib who left her on account of bringing inadequate dowry. Ultimately, the informant settled her second marriage but Habib and others did not put any question as to why he had settled her second marriage.

Accused Manuwa instigated his brother and son to kill the informant and others and he himself opened fire with a view to kill Faqira but he missed his aim. The informant and his companions took a turn and raised alarm. Habib also opened fire and shot Faqira at his neck. Faqira sustained firearm injuries on his neck, fell down and died on the spot. On hue and cry, all the three accused took about turn and ran away. The informant left the dead body of his father in the supervision of his servant Ashraf and Kailash.

He got a report prepared by one Mahesh Chandra and accompanied by his uncle and others reached Police station and lodged the FIR.

After registration of the case, S.O. Brijpal Singh left the Police station and reached the village in question on the same night at about 10-00 P.M. and searched the assailants. Since there was no light available, he did not prepare inquest report. Next day at about 7-00 A.M., Panchayatnama and other papers were prepared by the I.O. He sealed the dead body and handed over to constable Ram Kheladi who took the dead body to mortuary. The I.O. interrogated Hamid, Rafiq, Kailash and others and after inspection prepared site plan. He collected blood stained earth on 14.1.1981. All the accused were arrested by the Police and were interrogated. After completing investigation, the I.O. submitted charge sheet against all the three accused named in the FIR.

Accused Habib was charged under Section 302 I.P.C. and the remaining two accused were charged under Section 302 read with Section 34 of the Penal Code. Accused Manuwa was charged under Section 307 I.P.C. also. They all pleaded not guilty and claimed to be tried.

In order to bring home the charges against the accused, the prosecution examined P.W.1 Hamid, the informant, P.W.2 Rafiq, brother of the deceased, P.W.3 Kailash Chandra who was said to be eyewitness of the murder, P.W. 4 head constable Radhey Shyam and P.W.5 constable Ram Kheladi filed their respective affidavits, P.W.6 Dr. K.K. Khanna, the then C.M.O., Mathura, was examined to prove the post-mortem report which was prepared by Dr. K.K. Seth. He led secondary evidence as Dr. Seth had left the country and had gone to Libia, P.W.7 S.I. Brijpal Singh I.O. of the case was also examined and P.W.8 Constable Bankey Lal also filed affidavit.

All the three accused admitted their inter se relationship as well as this fact that informant's sister was married to Habib. Habib further admitted that he did not bring his wife but he did not demand dowry. They pleaded that the witnesses are related to each other and Kailash was servant of Faqira.

Accused examined Abdul as D.W.1 and Rajendra Prasad Pandey as D.W. 2, Assistant Record Keeper, S.P. office, Mathura to prove that one Kunwar Sen was also killed in the plots of village Doserash on 13.1.1981 and an entry was made in the G.D. dated 14.1.1981 of P.S. Gobardhan. One court witness H.L. Chokadayat, Inspector Commercial Taxes, Check Post, Bahaz, district Bharatpur was examined who disclosed that Government of Rajasthan used to collect 5% as commercial tax on the sale of cattle except cow.

After appraisal of the evidence on record led by the parties learned Sessions Judge concluded that how the assailants came to know that the deceased and others were going to Gobardhan along with their cattle through canal road and the light was not sufficient to identify the assailants. The prosecution witnesses were partisan and as such, he gave benefit of doubt and acquitted all the three accused.

Aggrieved by the judgment and order passed by learned Sessions Judge, the State has come up in appeal.

We have heard learned A.G.A. and Sri R.B. Singh, learned counsel for accused-respondents at length and perused the record carefully.

Learned Additional Government Advocate has contended that there was motive to the accused to commit murder as Habib had left his wife and the informant had settled her second marriage. It was further urged that about 6-30 P.M. on 13.1.1981, there must have been sufficient light to identify the real assailants. The assailants were relatives of the informant and others and as such, there was no difficulty in recognizing them at about sun set. Moreover, the informant and his companions talked to the assailants. It was further submitted that the prosecution examined Hamid and Rafiq, who are son and brother of the deceased respectively. It is true that they were related to the deceased but there was no question of doubting their presence at the scene of incident. P.W. 3 Kailash Chandra was a resident of district Alwar and was an independent witness and as such, learned Judge erred in rejecting his testimony also. He was not justified in extending benefit of doubt to all the three accused who committed murder of Faqira in furtherance of their common intention. The incident was reported to the Police promptly within two hours of the incident at the Police station situate at a distance of six kilometers. In this view of the matter, the learned Judge committed error in appraisal of the evidence led by the prosecution and this appeal has to be allowed and accused are liable to be convicted.

On the other hand, learned counsel for the accused-respondents urged vehemently that about at 6-30 P.M. in the month of January there must have been complete darkness and as such, it was not possible for the witnesses to identify the real assailants. It was submitted that on the same night Kunwar Sen, a hardened criminal of the area, was also killed and an entry was made in General Diary at P.S. Gobardhan on 14.1.1981, which was proved by D.W. 2 R.P. Pandey. The murder of the informant's father was committed at an unknown place by the dacoits who killed Kunwar Sen also and the accused were rightly acquitted by the trial court.

We have given our anxious consideration to the submissions made on behalf of the parties and perused the entire record, including oral and documentary evidence led by the parties.  We have gone through the impugned judgment also. The learned Judge was of the view that there was no motive for the accused to commit murder of Faqira and the murder did not take place at the place and in the manner as alleged by the prosecution. The trial Judge further found that it was the month of January and on account of complete darkness at the scene of alleged murder it was not possible for the informant or other witnesses to identify the real culprits and as such, he found that the prosecution could not bring home the charge against any accused beyond all shadow of doubt.

We are fully aware of the law on the point that there is no embargo on the Appellate Court to appreciate the evidence afresh but interference in the order of acquittal should be made for compelling reasons. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by the acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. ( V.N. Ratheesh Vs. State of Kerala 2006 (56) ACC 219).

When we analyze and scrutinize the evidence in the light of aforesaid proposition of law, we find that the trial Judge committed error in appraisal of the evidence led by the prosecution and the prosecution had succeeded in establishing the guilt of the accused beyond reasonable doubt. Admittedly, Smt. Sammo, sister of P.W.1 Hamid, was married to accused Habib, son of Manuwa. The deceased (Faqira) was father-in-law of Habib and the informant is brother-in-law of Habib. The third accused Bhappa is real brother of Manuwa and uncle of accused Habib. It is thus clear that the parties were closely related to each other and were well known since marriage of Smt. Sammo with Habib. It is further undisputed that after marriage of Smt. Sammo with Habib, he left her and she was living in her Mayaka. Prior to the murder of Faqira, Hamid had settled second marriage of Smt. Sammo but Niqah was not performed. Smt. Sammo had not been divorced by her husband. In this view of the matter, it is crystal clear that the accused had a motive to teach a lesson to his father-in-law and members of his family as they had settled second marriage of his wife, who had not been divorced by her husband. This action on the part of the informant must not have been relished by the accused. It is therefore incorrect to say that the accused had no motive. It will not be out of place to mention that motive has no significance in cases, which are based on direct evidence of eyewitnesses.

In the instant case, it is quite clear from the medical evidence coupled with eyewitness account that Faqira was done to death as a result of gun shot injuries on his neck on 13.1.81 at about 6-00 P.M. The doctor who conducted autopsy found that death had taken place about one day prior to the examination which was done at 5-30 P.M. on 14.1.1981. It is noteworthy that the doctor found one gunshot wound of entry trachea deep on the front of neck. There were fractures of third and fourth cervical vertebrae and laceration at the level of third and fourth cervical vertebrae. Moreover, trachea was punctured through and through just below thyroid cartilage. We therefore hold that Faqira had his unnatural death as a result of gun shot injury on his neck on 13.1.1981 at the time as alleged by the prosecution.

So far as the complicity of the three accused in the crime is concerned, the prosecution examined P.W.1 Hamid, P.W.2 Rafiq and P.W.3 Kailash Chandra. As mentioned above, the prosecution version is that Faqira did business of sale and purchase of cattle and he used to bring cattle from Rajasthan. On the impugned date also, Faqira along with others were bringing the cattle to Gobardhan market for sale. They were coming to Gobardhan along with cattle through canal road. The accused met them in the way and made an enquiry. The deceased replied that they were going to Gobardhan to sell cattle. After having heard this reply and recognizing the deceased and others, Manuwa exhorted his son and he himself opened fire. He, however, missed his target. The informant and others took turn and raised alarm. In the meantime, Habib opened fire and shot at the neck of Faqira who sustained injuries, fell down and succumbed on the spot. On the alarm, all the three accused took about turn and ran away and the witnesses did not chase them on account of fear. P.W.1 Hamid and P.W.2 Rafiq are no doubt son and brother of the deceased respectively. They wholeheartedly supported the prosecution story and stated in unambiguous words that first shot was fired by Manuwa who missed his aim. It was Habib who fired the fatal shot at the neck of the deceased and thereafter all the three culprits ran away. They were cross-examined extensively on behalf of the accused but nothing could be elicited to show that they have not spoken the truth. P.W.1 Hamid denied the suggestion of the defence that one Kunwar Sen Jatav was also killed at the scene of incident by dacoits and the murder of Faqira was committed by unknown miscreants. The prosecution placed reliance on the testimony of P.W.3 Kailash Chandra also, who is a co-villager of the informant and is Brahman by caste. He too fully corroborated the testimony of other witnesses regarding participation of the three accused in the crime. He claimed to have seen the accused in his village as they had their relatives in his village. We find nothing in his cross-examination also to discard or disbelieve his testimony.

So far as sufficiency of light is concerned, we find that incident of murder took place on 13.1.1981 at about 6-30 P.M. Admittedly, the sun had set in but there was light in which the culprits could be identified. It may not be out of place to mention that even after sun-set, one gets natural light and the persons known to each other may be identified correctly without any difficulty. In the case in hand, the parties were close relatives and were known to each other for the last several years. Moreover, they had a talk with each other regarding cattle and their destination and as such, it cannot be inferred that on account of complete darkness at the time of alleged murder, the witnesses could not identify the real assailants. It is noteworthy that the informant is an illiterate rustic villager and he affixed thumb impression on his written report. It is therefore not possible to conclude that the informant mentioned the exact time of incident. The scribe of the report used the word at about   6-30 P.M. In this view of the matter, we are unable to subscribe the view of the trial Judge that on account of complete darkness, it was not easy for the witnesses to recognize the culprits.

There were three accused who faced trial for committing murder of Faqira. Accused Manuwa and Habib, who are father and son respectively, were assigned the specific role of firing and exhortation also. We, however, find that neither role of exhortation/instigation was assigned in the FIR nor any overact was shown on the part of the third accused Bhappa, son of Kullu, who is brother of Manuwa. The witnesses examined on behalf of the prosecution did not utter a single word about role played by him except that he was accompanying Manuwa and others. He was allegedly carrying a lathi. He, however, did not cause any injury to the deceased or to the witnesses. We are, therefore, of the opinion that his involvement in the crime had not been proved by reliable and convincing evidence and he was rightly given benefit of doubt.

In view of the aforesaid discussion and the reasons given above, we hold that the order of acquittal recorded by the trial Judge against accused-respondents Manuwa and Habib is not sustainable in law and is liable to be set aside. So far as the acquittal of accused-respondent Bhappa is concerned, we see no valid reason to disturb his acquittal.

The appeal is, accordingly, partly allowed. The acquittal of accused-respondent Bhappa is affirmed but acquittal of Manuwa and Habib is set aside. Accused Habib is found guilty and convicted of the offence punishable under Section 302 I.P.C. Accused Manuwa is convicted under Section 302 read with Section 34 of the Penal Code. We do not intend to hear learned counsel for the accused on the quantum of sentence to be awarded as we are inclined to impose the lesser penalty prescribed under the law. Both father and son are, therefore, sentenced to undergo imprisonment for life thereunder.

Both Manuwa and Habib are on bail. A copy of this judgment shall be sent to C.J.M., Mathura who will get both the accused arrested and lodged in Jail within a period of six weeks. He will intimate to this Court within eight weeks about compliance of the order from the date of receipt of a copy of the judgment.

A copy of this judgment shall be certified to the court of Sessions Judge, Mathura also for information and necessary entries. The lower court record shall also be transmitted.  

Date: 23rd March, 2007



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