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SATVEER AND OTHERS versus STATE OF U.P.

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Satveer And Others v. State Of U.P. - CAPITAL CASES No. 7911 of 2006 [2007] RD-AH 7562 (24 April 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).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

CRIMINAL APPEAL NO. 7911 OF 2006

SATVIR AND THREE OTHERS VS. STATE OF U.P.

With

CRIMINAL REFERENCE NO. 15 OF 2006

STATE OF U.P. VS. SATVIR AND OTHERS

Hon'ble Mukteshwar Prasad, J.

Hon'ble S.C. Nigam, J.

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

1- This criminal appeal under Section 374 Cr.P.C. was filed by three brothers, namely Satvir, Sanjay @ Sanju and Shishpal, all sons of Mawashi Balmiki, and their mother Smt. Shubhadra against the judgment and order dated 28.11.2006 passed by Sri Shankar Lal Additional Sessions Judge (Fast Track Court), Bulandshahar in S.T. No. 516 of 2006 whereby he convicted all the four appellants under Section 302 read with Section 34 of the Penal Code and Section 7 of Criminal Law Amendment Act and each of them was sentenced to death and to pay a fine of Rs.2000/- under Sections 302/34 I.P.C. and to suffer rigorous imprisonment for a period of six months and to pay a fine of Rs.200/- under Section 7 of Criminal law Amendment Act. Both the sentences were directed to run concurrently.

2- As provided under Section 366 Cr.P.C., the Additional Sessions Judge has made a reference also for confirmation of death sentence of each of the accused.

3- In brief, the facts of the prosecution case were as under:

4- P.W.1 Roop Basant, son of Babu Lal and all the four appellants are residents of village Badha, Police station Khurja Dehat, Bulandshahar. The informant (Roop Basant) had a brother Rajvir, who had a son Aakash aged about eight years in the year 2006. On 24.2.2006 in the morning, the informant's nephew Aakash was playing along with children near Ambedkar Park. At about 10-00 A.M., Smt. Shubhadra took Aakash to her Baithaka. This act of the lady was seen by informant's co-villagers P.W.2 Mewa Ram and Vijay Pal. All the three sons of Smt. Shubhadra were sitting there in the Baithaka. They and their mother went inside the Baithaka along with child (Aakash) and they did not come out of the Baithaka for about half an hour. After about half an hour, they came out with a Thaal filled with articles of worship (Poojan Samagri) and started worshiping at Chamunda Math with flowers, Batase, earthen lamp, etc. When Mewa Ram and Vijay pal did not see Aakash coming out of the Baithaka, they suspected some foul play and went inside the Baithaka and saw the dead body of Aakash lying in a pool of blood. Nostrils and both ears of Aakash were cut. Mewa Ram and Vijay Pal raised hue and cry, which attracted a number of villagers, including women and they all reached there and found the accused busy in worshipping. The witnesses saw blood marks on the Math. The villagers apprehended them and assaulted mercilessly. The villagers inspected the scene of incident also. When they saw the dead body of Aakash the situation took ugly turn and there was complete chaos in the village. The villagers, including children closed their doors and Village School was closed. The public order was disturbed.

5- The informant got a report of the incident prepared by Soran Lal and reached the Police station. He handed over his report. The Police registered a case at crime no. 23 on the same day at 12-45 P.M. and made entry in the G.D.

6- P.W 5 H.C. Subhash Chandra prepared chick report and made entry in the G.D. at serial number 21. The case was registered at Police station in the presence of the S.O.

7- P.W.6 S.I. Vijay Singh, the then S.O. took up investigation and recorded the statement of Roop Basant at the Police station. He accompanied by the informant, reached the place of occurrence and after inspection, prepared site-plan. He collected blood stained earth and plain earth in two containers and prepared Fard. He further collected earthen lamp, five flowers of marigold, Sindur, Batase and blood stained piece of cement and prepared Fard. On the same day, Sanjay, Smt. Subhadra and Satvir were arrested by the Police and after personal search of Sanjay, one blood stained Darati was recovered from his Pant at 3-30 P.M. Darati was sealed and a Fard was prepared.

8- P.W.4 S.I. Daya Chandra Satsangi, who accompanied the S.O. Vijay Singh Verma, prepared inquest report on the direction of the I.O. and sealed the dead body and the dead body was sent to mortuary through Constable Surendra Singh and Ummed Ali.

9- P.W.7 Dr. Rajesh Kumar Dawre conducted autopsy on the dead body of Aakash on 25.2.2006 at 4-30 P.M. The boy was aged about eight years. Rigor mortis had passed off in upper extremities and was partially present in the lower extremities.

10- The following ante-mortem injuries were found by the doctor.

1- An incised wound (IW) size- 1 cm x 0.5 cm x muscle & cartilage deep present over pinna of right ear.

2- A contusion 5 cms x 3 cms present over right side of face just anterior to the right ear.

3- Abraded contusions 5 cms x 3 cms present over left side of face just lateral to the left eye-orbit.

4- A contusion 4 cms x 3 cms present over left side of face 3 cms away from nose.

5- An incised wound 1 cm x 0.5 cm x cartilage and muscle deep present over left side of nostril.

6- An I.W. 1 cm x 0.5 cm x muscle & cartilage deep present over right side of nostril.

7- An I.W. 1 cm x 0.5 cm x muscle deep present over tip of chin.

8- Multiple contusions in the area of 7 cms x 5 cms over anterior & right side of neck at the level of Adam's apple.

9- Abraded contusions 4 cms x 4 cms present over anterior aspect of neck over Adam's apple and towards left side.

There was bleeding from mouth and nostrils. The cause of death was asphyxia resulting from throttling.

11- On 25.2.2006, the I.O. interrogated Mewa Ram, Vijay pal and other witnesses of inquest report. Next day, scribe of the report was interrogated and after completing investigation, the I.O. submitted charge sheet against the accused.

12- After committal of the case to the court of session, all the four accused were charged under Sections 302 read with Section 34 of I.P.C. and Section 7 of Criminal Law Amendment Act on 10.7.2006. They all pleaded not guilty and claimed to be tried.

13- During the trial, the prosecution with a view to establish its case, examined seven witnesses in all. They are P.W.1 Roop Basant, who is uncle of the deceased (Aakash) and lodged FIR at Police station Khurja Dehat on 24.2.2006. P.W.2 Mewa Ram who claimed himself to be an eyewitness of the incident of murder. P.W.3 Dr. Ashok Kumar examined the injuries of Smt. Subhadra on 24.2.2006 at 5-15 P.M. and found two lacerated wounds on the left side of head and on the web of the left thumb and index finger, one contused swelling on the back and one abrasion on the back of the right forearm. He examined Satvir on the same day at 5-05 P.M. and found one abrasion on the back left elbow joint.

14- Dr. Ashok Kumar examined injuries of Sanjay on the same day at 4-55 P.M. and found sixteen injuries in all on his person, including contusions, lacerated wounds and abrasions. In the opinion of the doctor, the injuries of Smt. Subhadra and her son Sanjay were caused by lathi and fist and were fresh at the time of examination. Moreover, injury no.1 of Smt. Subhadra and injury no.2 of Sanjay could be dangerous. All other injuries were simple. P.W. 4 S.I. Daya Chandra Satsangi accompanied the I.O. on 24.2.2006 and on his direction and supervision, prepared inquest report and papers regarding autopsy and handed over the dead body to two constables. P.W.5 H.C. Subhash Chandra was examined to prove FIR and entry in the G.D. P.W.6 S.I. Vijay Singh is the I.O. of the case and proved site-plan, charge sheet, etc. P.W.7 Dr. Rajesh Kumar Dawre who conducted autopsy on 25.2.2006 at 4-30 P.M. proved post-mortem report of Aakash.

15- All the four accused in their statements recorded under Section 313 Cr.P.C. totally denied their complicity in the crime in question and pleaded their false implication. No evidence was led in defence.

16- After having considered the entire oral and documentary evidence on record led by the prosecution and the submissions made on behalf of the parties, learned trial Judge found all the four accused guilty for committing murder punishable under Sections 302/34 of I.P.C. and Section 7 of Criminal Law Amendment Act and convicted and sentenced them as mentioned above.

17- We have heard Sri P.N. Mishra, Senior Advocate, learned counsel for the appellants and learned A.G.A. We have gone through the record also carefully.

18- Learned counsel appearing for the appellants has assailed the impugned judgment mainly on the ground that language of the written report handed over to the Police clearly indicates that it was not dictated by the informant as claimed by him and an attempt was made to show that public order was disturbed and there was complete disorder in the locality after the incident. Soran Lal, scribe of the written report was not examined by the prosecution and admittedly written report was prepared after arrival of the Police and P.A.C. in the village. In order to prove the recovery, no public witness was examined in the court and appellants were neither arrested on the spot nor any recovery of the weapon allegedly used in the commission of crime was recovered from them on the spot. It was further contended that there was no sense in carrying the blood stained Darati by accused Sanjay. There was no reason to carry the weapon and as such, the recovery of Darati from his possession appears to be highly doubtful. The scene of incident was easily accessible to all and there was no door and no lock in the Baithaka. The last but not the least important submission made on behalf of the appellants is that a large number of villagers, including women arrived there, surrounded and apprehended the appellants and assaulted them mercilessly. The appellants, however, succeeded in running away and were subsequently arrested by the Police. This part of the prosecution version is full of suspicion and cannot be accepted.

19- Reliance was placed on a decision of Supreme Court of India in State of U.P. Vs. Arun Kumar Gupta 2003 SCC (Cri) Page 481.

20- On the other hand, learned A.G.A. has supported the impugned judgment and has urged that it was a case of human sacrifice (Narbali) and a boy aged about eight years was done to death in broad day light by Smt. Subhadra and her three sons with a view to please the Goddess and with this end in view, they caused as many as nine ante-mortem injuries, including four incised wounds over ears and nostrils and chin. Moreover, they pressed the neck of the boy and his death was caused by asphyxia resulting from throttling. It was further contended that P.W. 2 Mewa Ram, who is a co-villager and was present there near the scene of incident, fully supported the prosecution version and proved involvement of all the four appellants in the crime. The law nowhere requires that all witnesses must be examined. The appellants taking advantage of the huge crowd succeeded in freeing themselves and ran away and on this score no adverse inference should be drawn against the prosecution.

21- We have given our anxious consideration to the entire submissions made by the learned counsel for the parties. After having scanned the entire evidence on record carefully and taking into consideration the arguments advanced before us, we are clearly of the opinion that the impugned judgment is not sustainable and is liable to be set aside. The prosecution succeeded in leading sufficient reliable evidence to the effect that informant's nephew Aakash had his unnatural death. Dr. R.K. Dawre found as many as nine ante-mortem injuries, which included four incised wounds on the right ear, both nostrils and tip of the chin and the cause of death was asphyxia resulting from throttling. It is, therefore, obvious that death of the boy was homicidal which took place on 24.2.2006 at about 10-00 A.M. as alleged by the prosecution. The learned counsel for the appellants did not challenge the scene of incident also. Thus, the prosecution proved by reliable evidence that Aakash, a boy aged about eight years, was done to death on 24.2.2006 at about 10-00 A.M. in the Baithaka owned by the appellants.

22- Now the question is as to whether the appellants were responsible for committing murder of Aakash and were rightly convicted by the trial court. In our considered opinion, the prosecution miserably failed to prove the complicity of the appellants in the murder beyond all shadow of doubt.

23- As noted above, the murder in question took place in broad day light in the month of February. Admittedly, P.W.1 Roop Basant, who is uncle of the deceased, is not an eyewitness and he arrived at the scene of incident after about one hour of the incident. According to the FIR, two villagers, namely Mewa Ram and Vijay Pal were sitting there on a Bench in front of the shop of the doctor.

24- P.W.2 Mewa Ram disclosed that on 24.2.2006 at about 10-00 A.M., he and Vijay Pal were sitting on a Bench in front of the shop of doctor and were gossiping. The male appellants were sitting in their Baithaka and were talking to each other. According to him, children, including Aakash were playing there near Dr. Ambedkar Park. Smt Subhadra arrived there from her house and dragged Aakash in her room (Baithaka) where her three sons were sitting. All the four went inside the Baithaka and remained there for about half-an-hour. After about half an hour, Smt. Subhadra and her sons came out and did worship at Chamunda Math. When Mewa Ram and Vijay Pal did not see Aakash, they reached Baithaka of Smt. Subhadra and found Aakash lying dead in a pool of blood and there were injuries on his ears and nostrils. On their alarm, a large number of villagers rushed there and saw all the four appellants worshiping there with blood and garlands. The villagers assaulted the appellants mercilessly. However, the appellants succeeded in running away. P.W.1 Roop Basant disclosed in his cross-examination that house of P.W.2 Mewa Ram is situate at a distance of about 100-150 meters towards west from the place of occurrence. Mewa Ram disclosed that he had not gone to the shop of doctor for medicines. According to him, he and Tuki Ram whose houses are quite adjacent to the place of occurrence also rushed there. The witness admittedly did not see any of the appellants committing murder. It is noteworthy that the prosecution examined P.W.2 Mewa Ram only and no other villager, including Vijay Pal or neighbour was examined to prove the participation of the appellants in the crime. Admittedly, a large number of villagers, including women and children had arrived there after murder, saw the appellants worshiping and belaboured them and caused sufficient injuries to Sanjay, Satvir and their mother Smt. Subhadra. However, no villager came forward in the witness box to support the prosecution version.

25- As mentioned above, the written report is said to have been dictated by the informant who has affixed his thumb impression. Looking to the contents and language of the report, it could not be said that report was dictated by Roop Basant. In the instant case, the FIR does not appear to be a genuine document. It was held by the Supreme Court of India in Marudanal Augusti Vs. State of Kerala AIR 1980 SC 638 that when the First Information Report is not found to be a genuine document or is held to be fabricated, the entire fabric of the prosecution case would collapse. We further find that after registration of the case, the Police and P.A.C. rushed to the village to restore normalcy and then the villagers came out of their houses. After arrival of the Police, the informant disclosed to the I.O. regarding incident and on his direction, he got a report prepared by Soran Lal. In this view of the matter, it is clear that FIR was ante timed and in fact the report was written after arrival of the Police in the village. The scribe of the report (Soran Lal) was not examined by the prosecution for the reasons best known to it. It has come in the evidence that a large number of villagers arrived there, apprehended the appellants and assaulted them. However, the villagers did not apprehend any of the appellants and hand over to the Police. The I.O. claimed to have arrested Smt. Subhadra and her two sons Sanjay and Satvir from the brick kiln on 24.2.2006. This does not stand to reason that a huge crowd assembled there, apprehended the appellants and gave thrashing to them. They, however, got success in freeing themselves from the clutches of the villagers and none of them was detained there. It does not stand to reason that Smt. Subhadra, a lady aged about 58 years also, succeeded in running away. This circumstance alone, in our view, totally demolishes the entire prosecution case and we are not prepared to accept the prosecution version as put in the trial court. 26- The I.O. claimed to have recovered a blood stained Darati from the possession of Sanjay. This recovery of Darati from possession of Sanjay further gave a deathblow to the prosecution case. We fail to understand as to why Sanjay was carrying blood stained Darati with him. Had he participated in the murder with Darati in question he could have thrown the same anywhere in the way while running away from the spot. Moreover, no public witness was associated with the arrest of three accused and recovery of Darati.

27-- The prosecution led no evidence to show that the appellants or any of them had any motive to commit the crime.

28- We further find force in the contention of the appellants learned counsel that place of occurrence was an open place and was accessible to all. According to P.W.1 Roop Basant, the Baithaka of the appellants was about 12 feet X 12 feet and verandah adjacent to the Baithaka was about 8 feet in width. There were three doors in the verandah and one door in the Baithaka.

29- In view of the aforesaid analysis and scrutiny of the record led by the prosecution, we have reached at irresistible conclusion that the prosecution failed to bring home the charge against the appellants or any of them beyond all reasonable doubt. In our opinion, the testimony of P.W.2 Mewa Ram as well as P.W.1 Roop Basant are not reliable and convincing. They do not come in the category of wholly reliable witnesses and in our view leaned trial Judge erred in placing implicit reliance on the testimony of P.W.2 Mewa Ram. In our view, there was no eyewitness account. It was, in fact, a case, which hinges partly on direct evidence and partly circumstantial evidence. The chain of circumstances was not complete. We are therefore of the opinion that conviction of appellants is not sustainable and this appeal must succeed.

30- Before parting with this appeal, we think it necessary to observe that the trial Judge did not bother to go through Section 302 of the Penal Code before delivering the judgment. Section 302 I.P.C. runs as under :

"Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine."

31- A perusal of the Section makes it clear that when a court decides to impose death penalty, the imposition of fine is not mandatory. In the instant case, the trial Judge sentenced all the four appellants to death and imposed a fine of Rs.2000/- also. In default, he directed each of them to suffer rigorous imprisonment for a period of six months. This carelessness on the part of the trial Judge clearly indicates that how careful he was while dictating the judgment in question.

32- Criminal Reference No.15 of 2006 made by Additional Sessions Judge, Bulandshahar is hereby rejected.

33- The appeal filed by all accused is allowed and the impugned judgment dated 28.11.2006 is set aside and all the four appellants are hereby acquitted of both the charges levelled against them.

34- All the four appellants are in Jail. They shall be set at liberty forthwith if they are not required to be detained in some other case.

35- A copy of this judgment shall be sent to C.J.M., Bulandshahar as well as to the court below for necessary compliance. Compliance report to this Court will be submitted within six weeks.

36- A copy of this judgment shall be furnished to the Registrar General of this Court also for presenting the same before Hon'ble Administrative Judge, Bulandshahar Judgeship for his perusal and necessary action, if any, against Additional Sessions Judge.

Date: 24th April, 2007

OP/7911/06


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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