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STATE OF U.P. V. ABDUL & ORS  RD-SC 500 (5 May 1997)
M.K. MUKHERJEE,S.P. KURDUKAR
JU D E ME N T S.P. KURDUKAR, J.
The village Tilokpur consists ofseveral hamlets, of which Kurtharais onewhere Abdul Ali son ofMaikoo (A-1) was residing but lateron he shifted to village Tilokpur.
Mustaffa (A-2)was also residing at village Kurthara but thereafter shifted to villageTilokpur. Vikram (A-3) and Ramanuj(A-4) are theresidents of village Kurthara. All these four accused persons happened to be close friends of each other, ofwhom, Abdul Ali (A-1)was the Pradhan of Tilokpur Gram Panchayat for about fifteen years until he lost the election to the post of Pradhan toShanker Lal (since deceased). At the timeof incident which took place on December 24, 1983,undisputedly Shanker Lal was the Pradhanwho belonged to the opposite group. The accused and in particular Abdul Ali(A-1) did not cherish the success of ShankerLal asthe Pradhan of village Tilokpur. The victory of Shanker Lal as the Pradhan was celebrated by his supporters in the village which addedan additional insult to theego ofA-1. Accordingto the prosecution, these factorslead to the strained and inimical relations between the two groups, one headed byA-1 andthe other by Shanker Lal.
2. Itis alleged bythe prosecutionthat a year prior to the incident in question, A-1 andhis associates has attempted to commit the murder of Shanker Lal, but he survived and at the material time a criminal case under Section307 ofthe Indian Penal Codewas pending against them. A case under Section 107 of the Criminal Procedure Code was also pending against A-1.
3. According to the prosecution, a day beforethe incident in question, Shanker Lal received a notice relating to the `No ConfidenceMotion'being moved against him. It was allegedthat A-1 and his associates were instrumental in moving this `No Confidence Motion'. Shankar Lal, therefore, on December 24, 1983 i.e. the date of incident left his house at about7.30 a.m. along with his brother Mangal (PW 1) anduncle Chhote Lal (PW 2) and reached the house of DwarikaPrasad(DW 1)to discuss about the `No Confidence Motion'. In the said meeting,it wasdecidedto challenge the validity of the`No Confidence Motion' before an appropriate forum and to obtain a stay order; forthat purpose, they were togo to Lucknow. Dwarika Prasad (DW 1) told Shanker Lal and his associates to go aheadand he would join after a short time. Accordingly, Shanker Lal, Mangal and Chhote Lalleft the house of Dwarika Prasad andwhen they reached near thehouse of Dhanendra Jain, A-1 armed with his double barrel gun, A-2 and A-3 armed with katta (country made pistol) and A-4armed with banka suddenly appeared on the scene of offence and encircledShankerLal.
A-4 used filthy language against Shanker Lal. A-1then suddenly firedat Shanker Lal. A-4 assaultedShankerwith banka whereas A-2 andA-3 fired fromtheir katta (country made pistol). Shanker Lal on receivinga gun shot and other injuries fell down and died at the spot. This incident happened at about 8.45a.m.. The soundof firearms and the cries raisedby Mangal and Chhote Lal attracted the attention of acoupleof persons includingMahadin and Mahabir. All the accused thereafter fled away.
4. Mangal (PW 1) dictated the report of the incident to his uncle Chhote Lal (PW 2) and was signed by both of them.
They carried the report to the police station Masauli, Distt. Barabanki and handed it over to HC Sukhanta Ram (PW 3) whoprepared the FIR (Ex. Ka-2) and registered thecase at about 1.00 p.m. Mohan LalPandey (PW 6), the SHO along with police force reached the place of incident for necessary investigation. After drawing up an inquest panchanama (Ex.Ka-5) on the dead body,it was sent forpost mortem examination through constableJagdish Pandey and villageChowkidar Rahmat Ali. Dr. Ram Mohan (PW 4) held the autopsyon thedead body on 25th December, 1983. Mohan Lal Pandey (PW 6) then prepared several panchanamasand recorded the statementsof various witnesses. During the course of investigation, Mohan Lal Pandeyreliably learntthat A-1 had deposited his fire arm on December 24, 1983 at about9.30 a.m. in the shop of Waheb Ali. The said weapon came to be seized under seizure panchanamaon 6th January,1984. During the course of investigation, the accused person came to be arrested. After completing the investigation,all thefour accusedwere put up for trial for an offence punishable under Sections 302/34 of the Indian Penal Code for committing the murder of Shanker Lal.
5. The accused deniedthe allegation levelledagainstthem and pleaded that theyhave been falsely implicated in the presentcrime out of enmity. They areinnocent and they be acquitted.
6. The prosecution in support of its case principally relied upon the evidence of two eye witnesses, namely, Mangal (PW 1) and Chhote Lal(PW 2)in addition to the evidence of Dr. Ram Mohan, M.O. (PW 4) and panch witnesses and various panchanamas. The accused in support of their defenceexamined Dwarika Prasad(DW 1).
7. The IVth Addl. Session Judge, Barabanki,on appraisal of oral and documentary evidence on record byhis judgment and order dated 31st August, 1988 convicted all thefour accusedpersons under Sections 302/34of theIndian Penal Code for committing the murder of Shanker Lal. The trial judge awarded death sentence to AbdulAli (A-1) and made a reference under Section 366 Cr.P.C. to the AllahabadHigh Court, Bench atLucknow. A-2 toA-4 were sentenced to suffer imprisonment for life. The reference made by the trial court came tobe numbered being Capital Sentence Reference No.3 of 1988. In the meantime, all the four accused persons filed Criminal Appeal to the High Court challengingthe legality and correctness of thejudgment and order of conviction and sentence passed against them.All these criminal appeals along with aforesaid referencewere here together. TheHigh Court, on reappraisal of evidence and other materials on record vide its judgement dated Ist December,1988 allowed all the three appeals filed by the accused persons, rejected the reference and acquitted each one of them of the chargeslevelled against him. It is this judgment and order of acquittal passed by the HighCourt which issought to be challenged by the State of U.P. in these criminal appeals.
Since these criminal appeals arise out of a common judgment, they are being disposedof by this judgment.
8. Weheard the learned counsel for theparties and perusedthe oral evidence andother material on record. We have also gone through the judgments ofthe courts below and in ourconsidered view the impugned judgmentof theHigh Court is not only erroneous on interpretation of Section 174 Cr.P.C.but itsuffers from serious infirmity as regards appreciation ofevidence on record in proper perspective. We are conscious that weare dealing with thejudgment of acquittal passed by theHigh Court. Unless, we find that the impugned judgment is based on misconceptionof law and erroneous appreciationof evidence onrecord, this Court would not interfere with the judgment of acquittal. Wemay, therefore, point out how the findingsrecorded by theHigh Court are unsustainable.
9. While disbelieving the correctness and reliability of the FIR, the High Court heavily placed reliance upon the contents of the inquest panchanama (Panchayatnama) prepared under Section174 of the CriminalProcedure Code and contrasted withthe recitals inthe FIR. The High Courtheld that inthe inquest panchanama,it was recordedthat Shanker Lal was shot dead by fire arm but it did not make any reference to the fact that Shanker Lal was alsoassaulted by banks. The investigating officer has failed to record any injury on the person of Shanker Lal having been caused by banka. The HighCourt then observed as under:- "The primary purpose of holding and inquest is to ascertain the cause ofdeath and to find out whether it is homicidal, suicidal or accidental. Thelaw therefore, requires a PoliceOfficer to make an investigation and prepare a report describingthe wounds and indicating by what weapon such wounds appear to have been caused.
The inquest report, though a document of limited scope and nature, can nevertheless be utilised under section 145 of the Evidence Act.
As pointed out earlier, in the instant case, the inquest report is silent asto the use of banka. Why has the use ofbanka not been mentioned in the "Panchayatnama" is a question which immediately crops upfor consideration in view of the recitals in the F.I.R. mentioning in unambiguous words that the deceased was also assaulted by banka which was wielded byRamanuj.
What is the answer of the above question is the next question?" The High Court then went on to observe:- "Once it has cometo the knowledge ofthe investigating officer that the deceased had also been assaultedby banka which was allegedlyused by one of the appellants, therewas nooccasion for him not to mention the use of banka in the inquest report unless itcan beattributed to him that he, from the verybeginning of the investigation attempted to screen out orshield Ramanuj, but, according to the allegations in the FIR was armed with`banka'.
10. The interpretation of Section 174 of the Criminal Procedure Codesought to be given bythe High Court is apparently contrary tothe law laid down by this Court in (Suppl)S.C.R.84. Wemay usefully reproducethe relevant observations which are as under:- "Another point taken by the learned Addl. Sessions Judge wasthat in the inquest report details of the overt actscommitted by the various accused have not been mentioned in the relevant column. The learned Judge in fact has assumed without any legal justification that because the details were not mentioned in the requisite column ofthe inquest report, therefore, the presumption will be that the eye witnesses didnot mention the overt acts in their statements before thepolice.To begin with it seems to us that the learned AdditionalSessionJudge'sapproach islegally erroneous. A statement recorded by the police during the investigation is notat all admissibleand theproper procedure isto confront the witnesses with the contradictions when they are examinedand they ask the Investigating Officer regarding those contradictions. Thisdoes not appear tohave done in this case.
Further more, proceedings for inquest under Section 174 of the Code of Criminal Procedure have a very limited scope." Itwas then observed:- "Aperusal of this provision would clearly show that the object of the proceeding underSection 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is theapparent cause of the death. Thequestion regarding the details as to how the deceased was assaultedor who assaulted him or under what circumstance he was assaulted appears to us to be foreign to the ambit andscope of the proceedings under Section 174. In these circumstance, therefore, neither in practice nor in lawwas it necessary for thepoliceto have mentionedthesedetails in the inquest report." Inview of thissettled position of law, in our considered opinion, the very foundation of the judgment of the High Courtis rendered unsustainable. The High Court disbelieved theevidence of Mangal (PW 1) and Chhote Lal (PW 2) on the ground thattheir evidenceis inconsistentwith the recitals in the inquest panchanama. The observations of the High Court in this behalf are as under:- "It may becontended that according tothe recitals in the FIR, the deceased had caught hod of the banka and, therefore, there was no injury caused on the person of the deceased which could be attributed tothe useof banka Banka,which is a heavy sharp cutting weapon, was inthe hand of Ramanuj and he has attempted to givea blow on the person ofthe deceased. Since the intention was to commit the murder, itcan bereasonably inferred that the banka was used with considerable force. Ifin that situation it was caught hold of by the deceased, serious wounds would have been caused on the hand of the deceased. Such aninjuryhas not been noticed by the Investigating Officer on theperson of the deceased which also wouldindicate that Ramanuj was sought to be screened out from the scene of occurrence." Itis this basicfoundation in the impugned judgment which has resultedinto erroneous appreciation of prosecution evidence on record. We may briefly set out the reasonsfor acquittal recorded in the impugned judgment, (1) the witnesses are close relatives of Shanker Lal; (2) DwarikaPrasadalthough shownas a witness in the charge sheet, was given up atthe trial; (3) if Shanker Lal was to go to Lucknow for obtaining the stay order against the `No Confidence Motion', surely he would have carried some money with him but in fact what was recovered from his person was only 70 paise;(4) the incident took place in abusy locality but the prosecution did not examine any personfrom he said locality; (5) Shanker Lal was a history sheeter and involved in many crimes; thathe hadmany enemies in the village and, therefore, thepossibility of assault on ShankerLal bysome other persons other than the accused cannot be ruledout. The High Court then observed:- "A person would go to Court speciallythe High Court after having arranged for the money to meet the expensesinvolved in the institution of the case. Three persons,namely, Shanker Lal (deceased), his brother Mangal (PW 1)and uncle Chhote Lal (PW 2) were to go either to Barabanki or Lucknow, which would mean that apart from litigation expenses, travelling and other sundry expenses for three people should have beenwith the deceased. But the investigating officer recovered only 70 paise from the pocket of the deceased vide recovery memo (Ex. Ka-12) whichwas sealed in an envelop (Ex.3)."
11. The abovereferred findings in our considered view are totallyunsustainable for the followingreason:- Itis notand cannot be disputedthat Shanker Lal met with ahomicidal death. Dr. Ram Mohan (PW 4) held the autopsyon thedead body of Shanker Lal andnoticed the following injuries:- 1.Lacerated wouldon the left side ofneck 4 c.m. x 1/1.4 c.m. x muscle deep 2 c.m. above left collar bone.
2.Gun shot would of entry3 c.m. x 3c.m. x chest cavity deep, circular in shapesurrounding skin isblackened and hairs are signed.
The wouldis situated onthe left side of chest. 3 c.m. is above and lateral tothe left nipple. Margins are inverted.
3.Gun short wound of entry on the right side of abdomen 2 c.m. x 1/1.2 c.m. x abd. cavity deep 3 c.m. right to the umblcus Margins are inverted surroundingskin is blackened and hairs are signed.
4.Incised wound on the point of right thumb on the pulp 1 c.m. x 0.4 c.m. xmuscle deep.
5.Gun shot would of exit on the right side of lower back (limber area) 5 c.m. x 3 c.m. x abd. cavity deep. Margins are inverted. The wound is corresponding with injury No.3.
6.Contusion on the rightscapular region 1 c.m. x 1 c.m. in size.
7. Two sub-cutaneous swelling 1 c.m. x 1 c.m. onthe left side of chest 5 c.m. below and lateral to the left nipple. Some rounded foreign body isfelt under the skin.
The Medical Officer opined that the causeof death was shock and haemorrhage as a result of fire arm injuries. We, therefore, unhesitatingly conclude thatShankerLal metwith a homicidal death.
12. Coming tothe culpabilityof the accused persons, the evidence of two eye witnesses, namely, Mangal (PW 1) and Chhote Lal (PW2) in our opinion is totally unblemished and can besafely accepted as credible one. Mangal is the brotherof Shanker Lal. He has statedthat onDecember 24, 1983, he alongwith Shanker lal and Chhote Lal (PW 2)left the house at 7.30 a.m. and went to the house of Dwarika Prasad (DW 1) to discuss about the `No Confidence Motion'.
The copy of the notice of `NoConfidence Motion' was being carriedby Shanker Lal. Aftera briefhalt atthe house of DwarikaPrasad (DW 1), they left his house in order to go to Lucknowfor taking appropriate legal proceeding and to obtain a stay order. When they reached nearthe house of Dhanendra Jain, all the four accused appearedon the scene of offence. A-1was armed with double barrel gun, A-2 and A- 3 werearmed with katta and A-4 was armed with banka. A-4 uttereda few abusivewords and immediately thereafter A-1 fired at Shanker Lal.A-2 and A-3 also fired from their katta causing bullet injuries to Shanker Lal. A-4 assaulted with banka. Theincident took place at out 8.45a.m. and the First Information Report came to be lodged at Masauli police stationat about 1.00p.m. The FIR lodged by Mangal (PW 1) in allmaterial particulars corroborated his evidence. All necessary details about the assault includingthe role and weapon used byeach accused persons has been referred to in the FIR. Mangal (PW 1)then stated that his brother Shanker Lal died on the spot. The witness was although cross- examined at agreat length but here is absolutely no material brought out during the cross-examinedto discredit his testimony. We, therefore, see no hesitationin accepting the evidence of Mangal (PW 1) as credible one. Chhote Lal (PW 2), the uncle of ShankerLal again corroborated the evidence of Mangal (PW 1) in all material particulars and he narrated the entire story in the samesequence without any omission or mistake. In addition to the above evidence, Chhote Lal (PW2) hasstated that he was carrying with him Rs. 1400/- to Rs. 1500/- for court expenses. There issome inconsistency as regards who was carrying the said money but in ouropinionthe said inconsistency does notdemolish the substratum of the prosecutioncase. It is also relevant to not that during the inquest panchanama, a notice of `No Confidence Motion' wasrecovered from the person of Shanker Lal. This is an independent circumstance whichspeaks about the truthfulness of the prosecution case thatShankerLal, Mangal (PW 1) and Chhote Lal(PW 2) then decided to go to the Court to obtain the stay order against the `No Confidence Motion'. There is no serious challenge to the evidence of Mangal (PW 1) and ChhoteLal (PW2) thatthey were going along withShankerLal to Lucknow.The presence of both these witnesses, therefore, cannot be doubted. If this be so, in our opinion, the High Court had committed a seriouserror in not appreciating the evidenceof these two eye witnesses in a proper perspective and had erroneously discarded the prosecution story on a erroneous interpretation of Section 174 Cr.P.C. We are, therefore, of the consideredview that the judgmentof the High Court is totallyunsustainable and needsto be set aside.
13. Consequentupon conviction of all the four accused personsunder Section 302/34 of the Indian Penal Code, the trial court awarded a capital punishment to Abdul Ali (A-1) and imprisonment for life to A-2 to A-4 videits judgment and order dated 31st August, 1988 and made aReference to the High Court. The High Court, however, rejected the reference; allowed thecriminal appeals filed by thefour accusedpersons and acquittedeach one of them vide its order dated IstDecember, 1988.Presentappeal were filed in 1990 and they are being disposed of in April,1997. Having regard to the passage of time,we do not thinkit proper to confirmthe death sentence awarded to Abdul Ali(A-1) by the IVth Addl. Session Judge. We reject thereference. We uphold the convictionof A-1to A-4under Section 302/34 of the Indian Penal Code andSentence each of the accused persons to suffer imprisonment for life.
14. For the aforesaidconclusion, the appealfiled by the State of U.P. is allowed. the judgment and order of acquittal dated December 1, 1988 passed by the High Court are setaside and the judgment and order of conviction dated 31st August, 1988 passed by the trial court against accused A-1 toA-4 under Section 302/34 of the Indian PenalCode are restored. However,the death sentence awarded by the IVth Addl. Session Judge Barabanki to Abdul Ali (A-1) is commuted to imprisonment of life. Capital Sentence Reference No. 3 of 1988 is rejected. A-1to A-4 who are on bail shall surrender to their bailbonds forthwith to serve out the sentences.
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