Chhunnu alias Chhunna alias Shyam Prakash vs State of U.P.

Sushil Harkauli and Syed Nazim Husain Zaidi, JJ.—We have heard learned Counsel for the Appellant and the learned A.G.A. for the State at length.

The Appellant was tried alongwith the co-accused Malkhan son of Jagram for the offences u/s 392/302/411, I.P.C. The trial court by the impugned judgment dated 25.8.1995 acquitted the co-accused Malkhan of the charges. The Appellant has been convicted to three years rigorous imprisonment u/s 392, I.P.C. and to life imprisonment u/s 302, I.P.C. The Appellant was not granted bail during the trial. He has not even been granted bail during the pendency of this appeal. Thus, he has remained in jail since 1.1.1994, i.e., more than 14 years.

The prosecution case, in brief, is that at about 5.00 p.m. on 1.1.1994, the complainant and the witnesses heard cries of Smt. Kundandevi wife of Veerpal that some persons had snatched her nose ornament called pungariya and were running away. Thereupon, the complainant and his brother Ramjeewan and Deendayal, Veerpal and Sunder came running to the spot. They saw two persons running away. Ramjeewan, the brother of the complainant caught hold of one of these two persons, who stabbed Ramjeewan. Thereafter, the complainant and Veerpal, caught hold of that assailant, who disclosed his name as the present Appellant. The first information report further says that the second man was chased and caught by Deendayal and Sunder, who disclosed his name as Malkhan. Ramjeewan died on his way because of the stab wound. The complainant left the two apprehended accused in the custody of villagers and also left the dead body of his brother Ramjeewan, and went to the police station to lodge the F.I.R., which was lodged on the same day at 9.15 p.m. According to the Investigating Officer, he reached the village of incident the same night, but for want of proper light neither inquest was prepared nor the accused were searched. Next morning on 2.1.1994, the Investigating Officer is alleged to have searched the Appellant and recovered the nose ornament pungariya from him. Thereafter, on the pointing out of the Appellant, the knife which was the weapon of assault was recovered by the police. Blood soaked and ordinary soil was collected from the spot by the Investigating Officer. Two site plans were prepared, one with regard to the place of recovery of knife, and the other with regard to the place of incident. The body was sent for postmortem. According to the postmortem conducted at 11.50 a.m. on 3.1.1994, a single punctured wound was found on the chest of the deceased. There were no other ante mortem injuries. The stomach and small intestines were empty. The large intestine was full. Death was the result of the ante mortem injury. Both the accused were put on trial. The prosecution did not examine the lady, whose ornament was snatched or the two other ladies who, according to the F.I.R. were with her at the time of incident namely Smt. Kusum Devi and Smt. Dhanvati. The informant Chandrabhan was examined as P.W. 1. He denied the involvement of Malkhan saying that his name had not been mentioned in the first information report by the informant and the scribe of the first information report namely Ved Prakash had introduced the name of Malkhan on his own in the first information report, and that part of the first information report was not read out to the informant, who had signed the same in ignorance. He also denied naming the said accused Malkhan in the statement u/s 161, Cr. P.C. Deendayal, who according to the first information report had apprehended the accused Malkhan was examined as P.W. 2. This witness stated that Malkhan was one of the persons who had rushed to the spot on hearing the cry, and also stated that after the Appellant had stabbed Ramjeewan, he was caught by Malkhan. This version is at variance from the F.I.R. version. He denied naming Malkhan as an accused in his statement u/s 161, Cr. P.C.

Veerpal, who is alleged to have apprehended the Appellant alongwith the complainant was examined as P.W. 3. Departing from the F.I.R. version, he has stated that after stabbing Ramjeewan, the Appellant ran and he was apprehended by the said witness alongwith Deendayal, Sunder and one Chandra Bhan. He has stated that the Appellant threw the knife in the bushes. He has also stated that the Appellant was locked in a room in the village. He also says that the Investigating Officer came to the village on 2.1.1994. Thus, his evidence also is not only at variance with the F.I.R. version, but is also at variance with the evidence of the Investigating Officer P.W. 5, who had stated that he came to the village in the night of 1.1.1994. P.W. 3 has also stated that when the knife was recovered, it was blood stained and was sealed on the spot, and a recovery memo was prepared. However, the knife was not sent for report of the alleged blood on the knife. This witness has also stated that the co-accused Malkhan was cutting jari and he also chased and caught the Appellant. He has disowned his statement u/s 161, Cr. P.C. regarding Malkhan.

We may mention here that Malkhan is a resident of a different village of a different police station, and there was no occasion for him to be present on the spot for cutting jari.

The doctor, who conducted the postmortem was examined as P.W. 4. His evidence is more or less formal. The Investigating Officer was examined as P.W. 5. He has stated that when he reached the village on the night of 1.1.1994, he found both the accused, i.e., the Appellant and Malkhan locked in a room in the house of Veerpal.

Thus, the evidence led at the trial is at substantial variance with the F.I.R. version. The story of snatching the nose ornament (pungariya) is not corroborated by any injuries, which would have resulted in the normal course to the nose of the lady from whom this ornament was pulled. It is not corroborated by production of that lady namely Smt. Kundan Devi or the other two ladies, who were present with her according to the first information report itself.

We may mention here that in the trial, the Appellant could not engage a lawyer, and he was provided legal assistance by the State.

Thus, the story of snatching of the nose ornament and its subsequent recovery from the Appellant does not inspire confidence. Similarly, in the light of the evidence given by P.W. 3 Veerpal, the recovery of the blood stained knife at the pointing out of the accused also becomes doubtful inasmuch as, the witness states that he alongwith Deendayal, Sunder and Chandra Bhan apprehended the Appellant, who threw the knfie in a bush. This would mean that the Appellant was throughout visible to these witnesses and as such, the knife thrown by him in the bush also would have been seen by the witnesses. The alleged apprehension of the Appellant on the spot is also not sufficient for conviction, because the possibility of apprehension on suspicion while he was passing by cannot be ruled out, particularly when the witnesses have themselves departed from the original version of participation in the ornament snatching by more than one person and the apprehension of both the accused on the spot.

Considering the major departure by all the eye-witnesses from the original F.I.R. version regarding the co-accused Malkhan, and also considering the variation in the evidence regarding the persons who apprehended the Appellant as well as the doubt upon the recovery, both of the nose ornament as well as the knife, we are of the opinion that the Appellant is entitled to benefit of doubt.

We, accordingly allow this appeal, and acquit the Appellant Chhunna alias Shyam Prakash son of Ram Ji Lal Tiwari of all the charges. The Appellant will be set at liberty.

Let a copy of this order be sent forthwith to the trial court for issue of release order.