Chheda and Another (in Jail) vs State

This appeal has been preferred by Chheda and Sri Krishna against the judgment and order dated 26.11.1980, passed by the II Ird Additional Sessions Judge, Hardoi in Sessions Trial No. A-69 of 1979, whereby they have been convicted and sentenced in the manner stated hereinafter:

Chheda u/s 302, I.P.C. to imprisonment for life.

Sri Krishna u/s 323/109, I.P.C. to one year''s R.I. and to a fine of Rs. 1,000.00, in default to undergo three months'' R.I.

Shortly stated, the prosecution case runs as under:

The informant Jagdish Prasad P.W. 1 is the son of the deceased Khurramdas. At the time of the incident, the informant, the deceased, Ram Bhajan P.W. 4, Ganesh P.W. 5, Kehari P.W. 6 and Appellants Chheda and Sri Krishna were living in village Chinta Khera, hamlet of Beniganj, within the limits of police station Beniganj, district Hardoi.

There was enmity between the informant and the deceased on one side and Appellants on the other. About two months prior to the incident, the cattle of the Appellants had damaged the crop of the informant and the deceased, resulting in the deceased and the informant reprimanding the Appellants at their house. Three-four days thereafter the Appellants threw stones inside the house of the informant. The informant''s father told this to the villagers, who reprimanded the Appellants. For these reasons the Appellants started nursing ill-will against the informant''s father Khurramdas.

On 6.11.1977, at about 6.30 a.m., the informant Jagdish Prasad along with his brother Ayodhya Prasad was scraping grass to the west of the field of Kaptan Singh. At that time, he saw that his father Khurramdas, after answering the call of nature, was sitting by the side of a drain, where monsoon water had been accumulated, washing his face and hands. He also saw that Appellant Chheda armed with a lathi and Appellant Sri Krishna armed with a kanta, came near his father and Sri Krishna instigated Chheda in terms "Mar Lo Sale Ko Jane Na Pawe". At the juncture, Khurramdas raised cries, hearing which, he (the informant Jagdish Prasad), Ram Bhajan, Ganesh, Kehari and some others rushed to the rescue of Khurramdas, who ran in the western direction being chased by the Appellants. The Appellants overtook Khurramdas and started assaulting him with lathi and kanta. However, Khurramdas did not sustain kanta injuries because he avoided kanta blows. On the challenge of informant and others, the Appellants ran away.

Thereafter the informant Jagdish Prasad arranged a bullock cart and took Khurramdas, who was precariously injured, on the same to police station Beniganj. However, prior to reaching the police station, Khurramdas succumbed to his injuries. Thereafter, the informant lodged his written F.I.R., Ext. Ka-1 at the police station Beniganj.

The evidence of Head Constable Jai Ram Singh P.W. 7 shows thus:

On 6.11.1977, while he was posted at police station Beniganj, the informant Jagdish Prasad lodged a written F.I.R. Ext. Ka-1 on the basis of which he prepared a chik F.I.R. Ext. Ka-3 and registered a case in General Diary vide Ext. Ka-4.

It is significant to mention that a perusal of the chik F.I.R. shows that the F.I.R. was lodged at 10.00 a.m. and the distance between the place of the incident and the police station Beniganj was two miles.

The evidence of S.I., S. P. Shukla, P.W. 8 shows thus:

On 6.11.1977, he was posted as Sub-Inspector at police station Beniganj, in his presence, the F.I.R. was lodged , and he was entrusted with the investigation. At the police station itself, he performed the inquest (Ext. Ka-5) on the corpse of Khurramdas and thereafter prepared the challan lash (Ext. Ka-7). Thereafter he seized the clothes, which were on the corpse i.e., baniyan and kurta vide Ext. Ka-10. At the police station itself, he interrogated informant Jagdish Prasad and Chhotey Lal. Thereafter he left for the place of the incident where he prepared the site plan Ext. Ka-11. He seized the plain and blood stained earth in separate containers vide recovery memos, Exts. Ka-12 and Ka-13. Thereafter, he recorded the statements of Kehari, Ganesh and Ram Bhajan and others. He searched for the Appellants but could not find them.

He did some investigation also, but since, in our view, a reference to it is not necessary for the disposal of this appeal, we are not adverting to it.

On completion of the investigation, the Appellants were charge-sheeted.

Going backwards, the autopsy on the corpse of the deceased Khurramdas was conducted on 7.11.1977 at 2.00 p.m. by Dr. J. K. Verma P.W. 2, who found on it the following ante-mortem injuries:

(i) Lacerated wound 5 x 1 cm. x bone deep on the left side of scalp 9 cm. above the ear obliquely placed.

(ii) Lacerated wound 4 cm. x .75 cm. x bone deep on the left side of scalp 1 cm. above and 1 cm. behind the left ear obliquely placed.

(iii) Contusion 6 cm. x 3 cm. on front of left shoulder middle part obliquely placed.

(iv) Multiple abraded contusions of 4 cm. x 2 cm. to 1 cm. x 1.5 cm. on the top and back of left shoulder in an area of 10 cm. x 6 cm.

(v) Abrasion 3 cm. x 1.5 cm. on the lateral side of left arm 11 cm. above elbow.

(vi) Multiple abrasion 3 cm. x 1.5 cm. to 1 cm. x 1 cm. on the back of left fore arm in an area of 6 cm. x 5 cm., 5 cm. below elbow.

(vii) Lacerated wound 1 cm. x .3 cm. x muscle deep on the front of distal phalanx of the left ring finger.

(viii) Contusions 6 cm. x 2 cm. on the back of neck left side just above the root of neck 4 cm. lateral to mid line, obliquely placed.

(ix) A contusion 7 cm. x 2 cm. on the back of right shoulder, obliquely placed.

(x) Multiple contusion of 6 cm. x 2 cm. to 4 cm. x 1.5 cm. on the left side of back of chest in area of 12 cm. x 8 cm., 4 cm. lateral to mid line and 5 cm. below the root of neck.

(xi) A contusion 7.5 cm. x 2 cm. on the left gluteal region upper, outer quadrant, obliquely placed.

(xii) Contusion 7 cm. x 2 cm. on the back of left thigh upper part just below the gluteal region obliquely placed.

On internal examination, Dr. Verma found beneath injury No. 1 depressed fracture of left parietal bone, membranes and brain lacerated and beneath injury No. 10, fractures of 5th, 6th and 7th ribs on the left side.

In the opinion of Dr. J. K. Verma, the deceased died on account of shock and haemorrhage on account of ante-mortem injuries suffered by him.

In his deposition in the trial court, Dr. J. K. Verma stated that ante-mortem injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death and the deceased could have died as a consequence thereof on 6.11.1977 between 6.00 a.m. to 7.00 a.m.

The case was committed to the Court of Sessions in due course, where the Appellants were charged for offence punishable u/s 302, I.P.C. read with Section 34, I.P.C. They pleaded not guilty to the charge and claimed to be tried. Their defence was of denial.

During trial, in all the prosecution examined eight witnesses. Four of them, namely, the informant Jagdish Prasad, Ram Bhajan, Ganesh and Kehari P. Ws. 1, 4, 5 and 6 respectively were examined as eye-witnesses. Ram Bhajan and Ganesh did not support the prosecution case and were declared hostile. During cross-examination when they were confronted with their statements u/s 161, Cr. P.C. in terms that they saw the Appellants assaulting the deceased, they candidly denied having stated to the said effect. However, the informant Jagdish Prasad P.W. 1 and Kehari P.W. 6 gave credible evidence.

It is significant to mention that during cross-examination, the suggestion given to the informant Jagdish Prasad and Kehari was that the deceased was assaulted in early hours of the morning in the darkness by some unknown persons and no one saw his murder being committed. However, they denied the aforesaid suggestion.

The learned trial Judge believed the ocular evidence of Jagdish Prasad and Kehari and convicted and sentenced the Appellants in the manner stated in paragraph 1.

Hence, this appeal.

It is a matter of profound regret that although the appeal pertains to the year 1980, Mr. K. K. Dixit, learned Counsel for Appellants is absent. Considering the circumstances that this appeal is pending in this Court since the last 23 years, we did not think it feasible to adjourn it and instead thought it appropriate to decide it, with the assistance of learned Additional Public Prosecutor Mr. Janardan Singh. That we can do so is manifest from the ratio laid down by the Apex Court in paragraph 15 of its judgment in the case of Bani Singh and ohters Vs. State of U.P., .

It would be manifest from the above that the conviction of the Appellants is founded on the ocular account furnished by Jagdish Prasad P.W. 1 and Kehari P.W. 6. We make no bones in observing that we do not find it worthy of belief for the reasons stated hereinafter.

We would first like to take up the statement of the informant Jagdish Prasad P.W. 1. Since in paragraph 2, we have set out the prosecution story on the basis of recitals contained in his examination-in-chief, we do not want to burden our judgment by reiterating all the details. In short his evidence shows: There was enmity between him, and his father Khurramdas on one hand and Appellants on the other (in paragraph 2 we have set out the details of the said enmity). On 6.11.1977, at about 6.30 a.m., while he along with his brother Ayodhya was scraping grass in the west of the field of Kaptan Singh, he found that his father, after answering the call of nature, came and sat by the side of the drain wherein the monsoon water had accumulated and started washing his face and hands. At that juncture, Appellant Chheda armed with a lathi and Appellant Sri Krishna armed with a kanta came. Sri Krishna instigated Chheda in terms "Mar Lo Sale Ko Jane Na Pawe". Thereafter Khurramdas started raising cries and running in the northern direction. After he had run some distance Appellant Chheda with a lathi and Appellant Sri Krishna with a kanta came near him. Chheda assaulted him with lathi and Sri Krishna inflicted 3-4 kanta blows on his person, which he avoided. In the mean time he, Ram Bhajan, Ganesh and Kehari rushed to the place of the incident. They also saw the incident. Thereafter the Appellants ran away and he arranged for a bullock cart on which he took Khurramdas, who was precariously injured to police station Beniganj but when he was just about to reach the police station, Khurramdas succumbed to his injuries. He thereafter lodged the F.I.R.

We have gone through the statement of the informant Jagdish Prasad and make no bones in observing that we are not inclined to accept his claim of having seen the incident. It is significant to mention that the definite case set up by him right from the F.I.R., lodged by him is that after his father Khurramdas had answered the call of nature, he was belaboured by the Appellants. However, the autopsy report belies this because the same shows that in both, small intestine and large intestine, the autopsy surgeon Dr. J. K. Verma P.W. 2 found presence of faecal matter and gases.

That apart, in his F.I.R., Jagdish Prasad has categorically stated that Appellant Chheda with a lathi and Sri Krishna with a kanta assaulted his father, who sustained injuries as a result of the aforesaid weapons. However, this is belied by a perusal of the ante-mortem injuries suffered by the deceased, which we have set out in paragraph 5. Their perusal would show that they comprised of lacerated wounds, contusions, multiple abraded contusion and multiple abrasion and none of them could be said to be attributable to a kanta, which is a sharp-edged weapon. Realising the complete absence of kanta injuries, prosecution tried to act smart. When Dr. J. K. Verma P.W. 2 the autopsy surgeon, was being examined, the usual question which should have been put to him and which in our experience is normally put, namely, with which weapon the injuries was caused to the deceased, was not put to him. In our view, the default was intentional, the reason being as there was no incised wound to the person of the deceased, the prosecution did not put it to the autopsy surgeon as to with which weapons, the injuries suffered by the deceased were caused.

It was in such a situation that the informant Jagdish Prasad gave a go-bye to the manner of assault as contained in his F.I.R. and modulated his evidence to bring it in conformity with the medical evidence. Consequently, in the trial court, he stated that although Appellant Sri Krishna inflicted 3-4 kanta blows on the person of the deceased but the deceased avoided them. We have no doubt that this modulation was deliberate and well-designed.

We may have believed his evidence that the kanta blows did not strike the deceased, had this been mentioned by him in his F.I.R. However, this has not been mentioned therein. In our view, since the medical evidence did not show any kanta injury (incised wound) on the corpse of the deceased, he was left with no other option but to say that 3-4 kanta blows inflicted by Sri Krishna were avoided by the deceased. We make no bones in observing that we are not prepared to stomach this because the deceased could not avoid the 12 blunt weapon blows inflicted by Chheda on his person but by a unhappy coincidence could avoid all the kanta blows inflicted on him by Sri Krishna.

In our judgment, when the aforesaid infirmities in the evidence of Jagdish Prasad are examined in the back-drop of the fact that being the son of the deceased, he is an highly interested witness, it becomes extremely unsafe to accept his evidence. We dare say we find the defence suggestion made to him during cross-examination in terms that deceased was assaulted in the early hours of morning in the darkness and no one saw his murder being committed, to be correct.

We now come to the evidence of second eye-witness Kehari P.W. 6. His evidence shows: On the date and time of the incident, he, Ram Bhajan and Ganesh were washing their face in the drain wherein monsoon water had accumulated. At that juncture, they heard cries of the deceased Khurramdas. When they proceeded further, they saw that the Appellant Chheda with a lathi and Appellant Sri Krishna with a kanta were assaulting Khurramdas, who avoided kanta blows but fell down, as a consequence of lathi blows, to the south of the place where they were washing their face.

We have gone through the evidence of Kehari and make no bones in observing that we do not find it worthy of belief. In his cross-examination (paragraph 4), he stated that both the Appellants, namely, Chheda and Sri Krishna were assaulting the deceased Khurramdas who fell down as a consequence of the assault. In view of his said statement, the absence of kanta injuries creates a serious dent in his credibility. Even if we ignore this, the fact remains, that it is very difficult to accept his statement that whereas as the deceased could not avoid 12 lathi blows inflicted by Chheda but he avoided all the kanta blows, which had been caused by Sri Krishna.

It should be borne in mind that in a planned murder such as the instant, the deceased would have been done to death in the swiftest and most effective manner, i.e., by being assaulted with a kanta. In our view, had Appellant Sri Krishna armed with a kanta participated in the incident, there would have been kanta injuries on the corpse of the deceased and their absence belies his presence on the place of the incident.

In our view, the suggestion given to him during cross-examination in terms that deceased was murdered in the early hours of the morning and no one saw his murder being committed, appears to be correct.

It is true that apparently he appears to be a witness, who nursed no ill-will against the Appellants. But in our view, the mere circumstances that a witness is not inimical would not ipso facto result in the acceptance of his evidence. The evidence of a witness is accepted by the Court if it finds it to be in consonance with probabilities and medical evidence, which is not as is the case here. In the oft quoted case of Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, (in paragraph 33) Chandrachood, C.J. in answer to a question if the Appellant was not present then why so many witnesses implicated him, held:The answer to such questions is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions.

For the aforesaid reasons, in our view, it would also not safe to place reliance on the evidence of Kehari P.W. 6.

Before proceeding to the operative part of the judgment, we would like to mention in no uncertain terms that we have reservations both in respect of the place of the incident and the time of lodging of F.I.R., in respect of the former because the Investigating Officer S.I., S. P. Shukla in his examination-in-chief (paragraph 5) stated that from the place of the incident, he seized blood stained earth but in his examination-in-chief itself (paragraph 7), he admitted that he did not send the case property to the chemical examiner because it was a broad daylight incident ; the place of the incident was not disputed ; and there were eye-witnesses of the incident. We are not prepared to go by this examination of the Investigating Officer. How did he know that the place of incident would not be disputed. In our judgment, since the incident had not taken place at the purported place of the incident, the Investigating Officer did not send the blood-stained earth to the chemical examiner.

Our reason for holding that the F.I.R. was not lodged at the purported time, i.e., on 6.11.1977 at 10.00 a.m., is that the Investigating Officer S.I., S. P. Shukla, P.W. 8 in his cross-examination (in paragraph 8) admitted that the F.I.R. had been lodged on 6.11.1977 at 10.00 a.m. but the time of lodging of the F.I.R. in the inquest report (Ext. Ka-5) and challan lash (Ext. Ka-7) had been mentioned as 10.02 a.m. He could give no explanation for this. We are prepared to believe the defence suggestion (though denied by him) that this discrepancy occurred on account of the circumstances that the F.I.R. had not seen the light of the day, when the inquest and challan lash were prepared.

For the aforesaid reasons, in our view, the claim of both eye-witnesses, namely, Jagdish Prasad P.W. 1 and Kehari P.W. 6 of having seen the incident is doubtful ; the place of the incident is doubtful ; and the time of lodging the F.I.R. is also doubtful.

In such a situation we are left with no option but to acquit the Appellants.

However, before proceeding to the operative part of the judgment, we would like to point out to a blunder committed by the trial court, namely, that he convicted Appellant Sri Krishna instead of an offence u/s 302/149, I.P.C. for one u/s 323/109, I.P.C. In our judgment, having accepted the instigation of Appellant Sri Krishna, the learned trial court should have convicted him for the offence punishable u/s 302/109, I.P.C. We fail to see on what logic he convicted Appellant Sri Krishna for the offence punishable u/s 323/109, I.P.C.

In the result, this appeal is allowed. We acquit Appellant Chheda for the offence punishable u/s 302, I.P.C. and set aside his conviction and sentence of imprisonment for life thereunder. We also acquit Appellant Sri Krishna for the offence punishable u/s 323/109, I.P.C. and set aside his conviction and sentence thereunder. In case he has paid the fine of Rs. 1,000 imposed on him by the trial court, the same shall be refunded to him. Appellants Chheda and Sri Krishna are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.