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STATE OF U.P. versus SHIV PRASAD & 3 OTHERS

High Court of Judicature at Allahabad

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State of U.P. v. Shiv Prasad & 3 others - GOVERNMENT APPEAL No. 1609 of 1981 [2005] RD-AH 1069 (13 April 2005)

 

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

         Government Appeal No. 1609  of 1981

State of U.P.....................................................Appellant

Versus

1.Shiv Prasad

2.Mani Ram

3.Tursi

4.Bholey..........................................................Accused

                         Respondents.  

Hon'ble M.C.Jain,J.

Hon'ble M.Chaudhary,J.

                                (Delivered by Hon'ble M Chaudhary,J.)

This is a Government appeal filed on behalf of the State of U.P. from judgment and order dated  24th of February 1981 passed by VI Additional Sessions Judge Bareilly in Sessions Trial no. 349 of 1980 State vs Shiv Prasad & others acquitting them under sections 302 and 201 each read with section 34 IPC.

           Brief facts giving rise to  this appeal  are that at 7: 15 a.m. on 10th of June 1980 Mool Chand lodged an FIR at police station Aliganj situate at a distance of some 5 Kms from village Kamalpur District Bareilly alleging that Shiv Prasad residing in his   village had lodged a report of theft against his brother Pooran in the month of April  that very year  but he was not arrested in that case and since then Shiv Prasad and his family members started nursing grudge against Pooran.  During the night between 9th and 10th of June 1980 Mool Chand and his brother Pooran were  sleeping in the bullock-cart in front of their house ; that at about 10:00 p.m. Mool Chand got awoken and found that his brother was not there. On getting suspicious he alongwith his co-villagers Jhanjhan Lal and Godhan  taking their torches proceeded towards the field of Narayan Lal situate at outskirts of the village  and as they reached  near the well in the field of Narayan Pradhan they felt presence of some persons and saw in the light of torches flashed Shiv Prasad alongwith Mani Ram , Tursi and Bholey standing near the well and Bholey was holding a gunny bag which appeared somewhat weighty and that sighting them they fled  away towards the north.  Then Mool Chand alongwith his companions went ahead and saw headless dead body of his brother Pooran lying on the way by the side of the field of Narayan.  Then leaving Jhanjhan and Godhan near the dead body Mool Chand went back to his house and taking other family members  returned back to the place where the dead body of Pooran was lying and they kept watching the dead body for the whole night. The police registered the crime against the accused abovenamed under sections 302 and 201 IPC accordingly and started the investigation.  Station Officer D.P.Tewari who took up investigation of the case in his hands recorded statement of Mool Chand at the police station itself and then he proceeded to the place where the headless dead body of Pooran was lying. He drew inquest proceedings on the headless dead body of Pooran and prepared inquest report (Ext Ka 6) and other necessary papers (Exts Ka 11 & Ka 12) and handed over the dead body in a sealed cover alongwith necessary papers to constable Zahoor Shah and village chaukidar Raghubar for being taken for its post mortem.  He also picked up one pair of plastic shoes and a lathi lying near the dead body and prepared its recovery memo. Then he collected blood stained and simple earth from that place and prepared their memo (Ext Ka 14). He also inspected the site and prepared its site plan map (Ext Ka 16) and did other necessary things.

      Autopsy on the headless dead body was conducted by Dr Balbir Singh Medical Officer District Hospital Bareilly on 11.6. 1980 at 4:20 p.m. which revealed below noted ante mortem injuries on the dead body:

1. Incised wound 14 cm x 14 cm x through and through cut at the level of 1st thoracic vertebrae. All structures were cut and the part above was missing. Ribs of clavicle bone exposed through the injuries, upper of both the lungs also visible.

2. Abraded contusion 6 cm x 5 cm on the top of right shoulder joint.

3.Incised wound 7 cm x 2 cm x bone deep on the  dorsum of right hand at the  inter metacarpal (I & II) space. Cut of metacarpal bone exposed  and fore finger hanging loosely.

4.Incised wound 2 cm x 1 cm x bone deep on inner aspect of right thumb in middle.

On internal examination  the doctor found that the stomach contained digested food 100 gms and the small and large intestines  contained faecal matter and the brain was missing.  The doctor opined that the death was  caused due to shock and haemorrhage as a result of ante mortem injuries about two days ago.

Station officer D.P.Tewari arrested accused Sheo Prasad and Mani Ram from  the campus of the court of CJM Bareilly on 16th of June 1980. On being interrogated by the investigating officer Shiv Prasad and Mani Ram disclosed in presence of Narayan Pradhan and Noni Ram that head of Pooran, the deceased  and the spud with which he was assaualted were thrown in the well of Bhim Sen within the limits of village Biharipur and they could get the same recovered. Then the Investigating Officer taking both the accused accompanied with Narayan went to the said place and at the instance of accused abovenamed head of the dead body of Pooran was recovered from the well but the spud was not traceabale. He also prepared recovery memo of the head of the dead body from the well (Ext Ka 7).  Then the investigating officer drew inquest proceedings on head of the dead body and prepared inquest report of the head and other necessary papers (Exts ka 18 and ka 19) and handed over head of the dead body in a sealed cover alongwith necessary papers to constable Zahoor Shah and village chaukidar Raghubar for being taken for its post mortem.

                 Dr Balbir Singh Medical officer District Hospital Bareilly conducted autopsy on the head of the dead body of Pooran on 17.6. 80 at 5:00 p.m. which revealed below noted ante mortem injuries thereon:

1.Incised wound 3 ½ cm x 1 cm x scalp deep on the left side of head 13 cm above left ear,vertical.

2.Incised wound 6 cm x 1 cm x bone deep on the left side of head, 1 cm above left ear, oblique, bone cut    underneath.

3.Incised wound 4 cm x 1 cm x bone deep on the occiput region, bone cut underneath.

4.Incised wound 6 cm x 1 cm x bone deep on left mastoid region behind left ear, mastoid bone cut obliquely.

5.Incised wound 2 cm long x through and through on left ear pinna the cut upper part missing.

6. Incised wound 8 cm x 4 cm x bone deep on right mandible underneath lower mandible cut.

7. Three incised wounds (i) 1 ½ cm x ½ cm (ii) 1 cm x ½ cm (iii) ½ cm x ½ cm x skin deep on the left side of chin on below lower lip.

8. Incised wound 14 cm x 13 cm x through & through at the base of the head obliquely from behind to forward with 3 cervical vertebrae present & loose and all structures (trachea & oesophagus and vessels) cut.

     On an internal examination the doctor found that the brain was liquified and membranes were decomposed. The doctor opined that the death was caused due to shock as a result of ante mortem injuries about a week ago.

       After completing investigation the police submitted charge sheet against the accused accordingly.

       In this case there is no direct evidence and the entire prosecution case rests on circumstantial evidence. The circumstances highlighted to fasten the guilt on the accused relied on by the prosecution are as follows:

(1) there was a motive for the accused appellants to liquidate the  deceased;

(2) at about 10-11 p.m. on 9th of June 1980 accused Shiv Prasad, Mani Ram,  Tursi and Bholey were seen by Mool Chand, Godhan and Jhanjhan Lal near the well situate in east south corner in the field of Narayan Pradhan situate at outskirts of the village and accused Bholey  was holding a gunny bag containing something weighty  and sighting Mool Chand and others the accused bolted away towards north.  Soon thereafter Mool Chand and the persons accompanying him saw the headless dead body of Pooran lying on the way by the side of the field of Narayan Pradhan at that very time;

     (3) on 16th of June 1980 station officer D.P.Tewari, the      investigating officer arrested accused Shiv Prasad and Mani Ram from the campus of the court of CJM Bareilly, and the disclosures made by them to the investigating officer led to the discovery of head of deceased Pooran from the well of Bhim Sen situate within the limits of village Bihari Pur at their instance by the investigating officer in presence of witnesses Narayan Pradhan and Noni Ram .

After framing of the charge against the accused the prosecution examined Mool Chand (PW 1), Godhan (PW 2) and Narayan Pradhan (PW 3) in support of the circumstances relied upon by them. Station officer D.P.Tewari  the investigating officer who investigated the crime proved the police papers. He also appeared as recovery witness of the head of deceased Pooran from the well of Bhim Sen at the instance of accused Shiv Prasad and Mani Ram.  PW 5 constable Zahoor Shah to whom headless dead body in a sealed cover with necessary papers was entrusted for being taken for its post mortem stated the said fact .  Subsequently head of deceased Pooran recovered from the well in a sealed cover alongwith necessary papers was  handed over to constable Zahoor Shah  for being taken for its post mortem. He also stated that fact.  PW 6 Dr Balbir Singh Medical Officer District Hospital Bareilly who conducted autopsy on the headless dead body of Pooran and also subsequently on his head  has proved the post mortem reports (Exts Ka 22 & Ka 23).

             The accused denied the alleged occurrence altogether stating  that they were got implicated in the case falsely on account of village party factions. Accused Mani Ram and Shiv Prasad also  denied having made the alleged disclosures regarding head of deceased Pooran and the spud also denying recovery of head of deceased Pooran from the well of Bhim Sen at their instance.

The accused did not adduce any evidence in their defence.

On an appraisal of evidence and other material on the record the learned Trial Judge disbelieved the prosecution version and evidence and giving benefit of doubt to the accused acquitted them.

Feeling aggrieved by the impugned judgment and order the State preferred this appeal for redress.

We have heard learned AGA for the State and learned counsel for the accused respondents and gone through the record.

It is well established  that where a case rests squarely on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established unerringly pointing towards guilt of the accused and all the incriminating facts and circumstances when taken cumulatively  should form a chain so complete  that there is no escape from the conclusion that within the  all human probability the crime was committed by the accused and none else and in order to sustain conviction circumstantial evidence must be complete and incapable of explanation of any  other hypothesis  than that of guilt of the accused and incompatible with his innocence.   Now we will see if the prosecution  has succeeded in establishing the circumstances relied upon:

Motive imputed  for the alleged crime is that some three months prior to the  occurrence Shiv Prasad had lodged an FIR of theft against Pooran and the police found that case baseless and Pooran was not arrested by the police and that since then Mool Chand  and his family members started nursing grudge against Pooran.  Admittedly accused Mani Ram and Shiv Prasad are real brothers and Bholey is their first cousin and Tursi is the son of accused Mani Ram.  No doubt that in cases of circumstantial evidence  motive assumes some significance.  In the instant case the motive imputed for the alleged crime is very weak as it does not stand to reason  that if in a theft case the police found the case baseless and did not arrest accused Pooran  named in that FIR  the complainant party would go to an extent of taking the life of that person. And hence we are of the view that the motive imputed for the alleged crime is flimsy.

Regarding the second circumstance, conduct of Mool Chand, brother of the deceased and the first informant is so unnatural and improbable that it does not inspire confidence in the  truthfulness  of his testimony on the point.  If it is taken to be correct that at about 10:00 p.m. Mool Chand got awoken on barking of dogs  and did not find his brother Pooran who was also lying with him in the bullock-cart in  all probability he would have gone inside his house and after awaking the family members and taking male members of his family and 2-3 others would have gone in search of his brother Pooran.  But in the instant case he did not wake up his brothers and without informing them taking Godhan and Jhanjhan Lal with him he went in search of Pooran. As far as these two witnesses are concerned he himself admitted that Jhanjhan Lal used to reside in his house but in a separate apartment.  Admittedly Godhan and Ghasi are real brothers  being sons of Nand Ram.  It has come in evidence that Narayan Pradhan and Nand Ram are first cousins. It has also come in evidence that Pooran,  the deceased and Ghasi  were real ''Sarus' as both of them were married with the two daughters of Prem Raj.  It is also strange that if the accused after murdering Pooran  had thrown his headless dead body on the way  by the side of the field of Narayan Pradhan as for what they kept standing near the well in his field when Mool Chand alongwith his companions reached there and recognized them in the light of torches flashed.  Thus the prosecution case and evidence is full of improbabilities and incongruities and hence implicit reliance can not be placed on the testimony of PW 1 Mool Chand and PW 2 Godhan on the point.

Regarding recovery of head of deceased Pooran from the well of Bhim Sen on 16th of June 1980 at the instance of accused  Shiv Prasad and Mani Ram in pursuance of the disclosures made by them to the investigating officer PW 4 station officer D.P.Tewari himself appeared as a recovery witness and PW 3 Narayan Pradhan as a public witness. PW 3 Narayan Pradhan deposed that head of the deceased while taking out of the well at the instance of accused Shiv Prasad and Mani Ram  was tied in a gunny bag whereas PW 4 station officer D.P.Tewari deposed that head of the deceased was floating in the well and at the time of recovery  was not tied  in any gunny bag. Arrest of these two accused Shiv Prasad and Mani Ram who had gone to the court of CJM to surrender was made by the investigating officer under suspicious circumstances and their statements making the alleged disclosures were not recorded by him at that very time.  Further Baldev, father of Narayan Pradhan (PW 3) and Laxman, grand father of Godhan (PW 2) were real brothers.  Thus no independent witness has been examined by the prosecution in support of any of the circumstances relied upon by it. We are therefore of the view that this circumstance too has not been established satisfactorily by cogent and convincing evidence.

Thus we see that the circumstantial evidence in the case falls short of the required standard on all material particulars. We are therefore of the view that the judgment of the trial judge is well reasoned and no interference is called for.

The appeal has no merit and is liable to be dismissed.

The appeal is hereby dismissed.

Office shall send certified copy of the judgment alongwith record of the case to the court concerned immediately for necessary compliance under intimation to this court within two months from today.

Dated: 13.4. 2005

Dks/GA 1609-81


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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