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Judgment
Saroj Bala, J.—This criminal appeal is directed against the judgement and order dated 2.11.1982 passed by the II Additional District and Sessions Judge, Gorakhpur in S.T. No. 2 of 1982 whereby convicting the appellants for the offences under Sections 147 I.P.C. and 302 read with Section 149 I.P.C. and sentencing each of them to two years rigorous imprisonment u/s 147 I.P.C and imprisonment for life u/s 302/149 I.P.C.
The factual background as unfolded at the trial was that on 1.7.1981 at about 10 P.M. the first informant Gabbu Chaubey (P.W.I) along with Sheo Prasad (P.W.2) and his son Prabhash was sitting in his open hut and they were engrossed in conversation. At the same time accused- appellant Mallu along with his relatives co-accused Sirtaj, Rambali, Tapesar, Gama and Sadhu was seen in the electric light burning at the tubewell of Uttam Chaubey coming from the southern side towards the village. After some time outcries of Smt. Saukariya widow of Jamuna coming from her residence were heard. On hearing her outcries the first informant along with his companion reached at the house of Smt. Saukariya and saw the appellants in electric and torch light coming out from her residence. The appellants took to their heels on seeing the witnesses.
The motive behind the commission of offence was litigation with accused-appellant Mallu over the agricultural and. The first informant scribed the report of the incident (Ext. Ka1) which was laid by his son at P.S. Chauri Chaura on 2.7.1981 at 7.45 A.M. On the basis of written report check F.I.R.(Ext. Ka4) was prepared by constable Moharrir Ram Nagina Partdey (P.W.7) and crime was registered in the general diary maintained at police station Chauri Chaura.
S.I Jitan Prasad Yadav (P.W.6) the then posted at P.S. Chauri Chaura was entrusted with the duty to investigate the crime. He reached at the place of offence at 10.20 A.M. and conducted inquest on the dead body and prepared inquest memo(Ext. Ka-6). During the course of inquest photolash(Ext. Ka 7) Challan lash (Ext.ka8), hatters to C.M.O. (Exts. Ka 9 and Ka 10) were prepared. The seal bundle containing the dead body of Smt. Saukariya along with police papers was handed over to the constable Surendra Singh (P.W.5) and Shiv Nath Prasad for transportation to the mortuary for postmortem.
The autopsy on the dead body was conducted by Dr. Mahendra Pratap Singh (P.W.3), then posted as Medical Officer in District Hospital Gorakhpur, on 3.7.81 at 3.30 P.M. and following ante mortem injuries were found on the ''person of deceased as per postmortem report (Ext. Ka2):
Incised wound 1/2" x 1/4" x muscle deep on left forearm 4" above the wrist.
Incised wound 1.5" x 1/2" x muscle deep, 7" above injury No. 1.
Punctured wound 1" x 1/2" x 4" on front of chest 4" above left nipple.
Incised wound 1" x 1/2 x muscle deep, 4" below left nipple.
Incised wound 1" x 1/2" x muscle deep, 2" below injury No. 4.
Incised wound 1" x 1/4" x muscle deep, 2" below injury No. 5.
Incised wound 1" x 3/4" x muscle deep on front of chest in middle in between the breasts.
Punctured wound 1" x 1" x4.5" anterior axillary fold right side.
Incised wound 2.5" x 1/4" x bone deep on right ear.
Incised wound 3" x 1/4" x bone deep. Right ear broken in three parts due to injuries No. 9 and 10.
Incised wound 4" x 1/2 x bone deep, on neck left side.
Incised wound 3"x 1" x muscle deep, on upper part of right scapula.
Incised wound 1" x 1/2" x muscle deep on upper part of left hand.
Incised wound 1" x 1/2" x muscle deep 1" below injury No. 13.
The ribs on left side and both lungs were found fractured. The death was caused due to shock and hemorrhage as a result of ante mortem injuries.
The investigating officer prepared the site plan of the place of offence (Ext. ka11). The recovery memo (Exts. Ka12 and Ka13) were prepared in respect of torches of the witnesses. He collected blood smeared and plain earth from the spot under the memo (Ext Ka14). The blood stained Durrie of deceased was taken in police custody under the seizure memo(Ext. ka 15).
The broken pieces of bangles and small hand fan stained with blood were taken from the spot by the investigating officer under the recovery memo (Ext.ka16). The eyewitnesses were interrogated. Thereafter the investigation was transferred to S.I. Viveka Nand Tewari. He interrogated the witnesses Jogeshwar, and accused persons and thereafter submitted the charge sheet (Ext. ka3) for the offences under Sections 147, 302/149 I.P.C.
The committal proceedings were conducted by the Munsif Magistrate XI Gorakhpur. The accused-appellants were committed to the court of Sessions by the order dated 1.1.1982.
All the accused-appellants were charged for the offences under Sections 147, 302/149 I.P.C. They pleaded not guilty to charges and claimed to be tried. At the trial prosecution examined Gabbu Chaubey (P.W.1) and Shiv Prasad (P.W.2) as witnesses of fact. The rest of the witnesses (P.W.3 to P.W.7) were formal witnesses deposing about registration of crime, autopsy and investigation.
The accused-appellant Mallu in his statement u/s 313 Cr.P.C. admitted that Tulsi Ram had three sons, namely, Pawaru, Jhabaru, Jairam out of whom Pawaru died issueless. Jamuna was the son of Jhabaru and deceased Saukeriya was his wife. Chandi was son of Jairam. Chandi was his father. He further stated that he alongwith family and Smt. Saukariya resided separately in divided portions of one and the same house. He admitted long litigation with the deceased. He denied that a decree was passed in the suit for cancellation of sale deed. He attributed his false implication to enmity with Gabbu Chaubey.
Accused Sirtaz stated that he was resident of village Keotan Tola. Accused Rambali and Tepeshwar stated that they were resident of village Jungle Rasoolpur P.S. Jhagha. They denied that they were maternal uncle of accused Mallu. Accused Gama and Sadhu stated that they were resident of village Barbaspur P.S. Balipar. They denied that they are relative of accused Mallu.
On scrutiny the trial court found the testimony of Gabbu Chaubey (P.W.1) truthful and recorded the findings of conviction.
We have heard Shri P.N. Mishra, learned Senior Advocate and Shri Kamal Krishna appearing on behalf of appellants, learned A.G.A. and have perused the trial court record.
The learned Counsel for the appellants challenging the finding of conviction argued that the solitary witness Gabbu Chaubey (P.W.1) inimically deposed against the appellants; the sole eyewitness having got executed a sale deed in his favour and manufactured a forged Will of deceased in relation to the same property which was sold by her husband in favour of the appellant Mallu had strong motive for false implication; there is no eyewitness to the occurrence; the deceased being issueless, appellant Mallu would have inherited her property, therefore, there was no motive to kill her; the first informant had taken possession of the house of the victim after her death though he had no relationship with her; the only evidence is of seeing the appellants coming out of the house of deceased; the eyewitness has not assigned any weapons.
The prosecution case rested on the solitary testimony of Gabbu Chaubey (P.W.1). The deceased was a issueless widow. The appellant Mallu was the son of real cousin of Jumuna, husband of deceased. Jamuna owned and possessed agricultural land. Jamuna died in or around the year 1969-1970. The accused -appellant Mallu claimed that Jamuna had executed a sale deed of his agricultural land in his favour during his life time. The deceased instituted a suit for cancellation of the said sale deed. The deceased filed a review application against the decree passed in favour of Mallu in the appeal. The deceased executed a sale deed of the disputed agricultural land about nine years before in favour of witness Gabbu Chaubey (P.W.1). The witness Gabbu Chaubey had taken possession of her house after her death on the basis of an unregistered Will executed on 1.9.1975. It was suggested to the witness (P.W.I) that he was instrumental in getting the suit of cancellation instituted by the deceased against the appellant Mallu.
The witness having purchased the land pending litigation was rival claimant of disputed land. In the background of these facts the testimony of witness Gabbu Chaubey has to be assessed with great care, caution and circumspection.
The witness Gabbu Chaubey (P.W.I) deposed that a passage from north to south turns towards the house of Smt. Saukariya and electric pole with bulb existed on the said way at a distance of about 15 paces from the house of Smt. Saukariya. His open hut existed towards the western side of the said way.
The house and tubewell of Uttam Chaubey was situated on the eastern side of the way at a distance of 5-6 paces and a bulb fixed in the wall of tubewell towards the side of way used to burn constantly. Accused Mallu and deceased Saukariya were litigating over the land since long and a decree was passed in that suit. About ten months ago at about 10 P.M. he along with his son Prabhash and Shiv Prasad was sitting in his open hut and were talking to each other. At the same time he saw accused-appellants booing towards the village from southern side. About 8 or 10 minutes thereafter he heard the voice of Saukariya and reached at her house along with his son and Shiv Prasad and saw the accused-appellants coming out of the house of Smt. Saukariya.
They went inside her house and found her body lying on the cot in a pool of blood. It was raining that night. In the cross examination he admitted that the accused-appellants Rambali, Tapeshwar, Shirtaz, Gama and Sadhu were resident of Jungle Rasoolpur, Chhapara and Barbaspur. He feigned ignorance about execution of sale deed of agricultural land by Jamuna in favour of accused Mallu and mutation of his name (Mallu) over the said land in revenue records. He denied having knowledge about the pendency of appeal in the High Court against the decree passed in the suit for cancellation of sale deed. He stated having purchased the agricultural land of Jamuna from Smt. Saukariya about nine years before his evidence in the sessions trial was recorded. He admitted that the application for mutation was moved by him five years before and mutation case was pending between him and accused Mallu.
It is spelt out from his testimony that Will was executed by Smt. Saukariya in his favour but it was not registered. He applied for substitution of his name in the suit between Saukariya and Mallu on 17.8.1981, on the basis of the sale deed dated 4.12.1971. He further stated that it was drizzling. The accused Mallu was at a distance of about four paces from the house of Smt. Saukariya when he saw him for the first time and rest of the accused were at a same distance. Accused Mallu was running away towards the eastern direction when he saw him for the first time. According to him the dead body was lying in the Kothari situated towards the northern side of courtyard.
The testimony of Gabbu Chaubey (P.W.1) reveals that accused-appellants were seen by him, his son and Shiv Prasad (P.W.2) in the electric light, while going from southern direction towards the village and 8-10 minutes thereafter the outcries of Saukariya were heard from her house. The witness along with his companions reached there and saw the accused-appellants coming out of the house of deceased. In the cross examination he gave out that the accused-appellant Mallu was at a distance of about four paces from the house of Saukariya when he saw him for the first time and he was running towards the eastern direction. This part of his testimony belies the fact of his having seen the accused-appellants coming out of the house of Saukariya.
The weapons carried by the accused-appellants were not disclosed in the First Information Report lodged about nine hours after the incident and in the statements recorded u/s 161 Cr.P.C. The testimony of (P.W.I) is silent on the point of weapons carried and used by the accused -appellants in the commission of offence. There is no direct evidence of commission of murder.
The witness (P.W.1) stated to have a fleeting glimpse of the accused-appellants while they were running towards the eastern side. He admitted that Jogeswar resident of the same village and many others had also arrived at the spot and saw the accused-appellants coming out of the house of deceased. The witnesses who gathered immediately after the occurrence were not examined at the trial. There is no reason for non-production of independent witnesses.
The witness Shiv Prasad (P.W.2) having not supported the prosecution was dubbed hostile. The witness (P.W.2) did not support the prosecution case in the examination in chief itself. In the cross-examination nothing substantial in favour of the prosecution could be elicited except the date, time and place of offence. It is noteworthy that he appeared as a witness in a criminal case from the side of Gabbu Chaubey (P.W.I) against the accused-appellant Mallu and deposed against the accused-appellant. He was surety of Gabbu Chaubey in another case of which accused-appellant Mallu was complainant. He was an accused along with Gabbu Chaubey in proceedings u/s 107/117 Cr.P.C. initiated on the report of accused-appellant Mallu. He denied the presence of electric light. His testimony has no bearing on the factum of the incident.
The First Information Report was lodged at 7.30 A.M. on 2.7.81. The occurrence took place at 10 P.M. on 1.7.1981. The explanation given for not making the report the same night was fear due to night. He admitted that it was raining in the night of the incident. Gabbu Chaubey (P.W.I) deposed that it was drizzling when accused-appellants were seen by him but when it comes to lodging of prompt report he gave out it was raining. If really the occurrence has taken place as alleged there was no reason for (P.W.I) to lodge the report at 7.30 A.M. on 2.7.1981. The incident had not taken place at dead hours of night. The distance intervening the place of offence and police station was six miles. A number of villagers had assembled at the spot. These facts lead to irresistible conclusion that the First Information Report was lodged after due deliberation.
We find that the sole testimony of Gabbu Chaubey (P.W.1) about seeing the accused-appellants running away at a distance of four paces when he had their first glimpse in rainy night does not fasten the guilt upon the appellants. There might be many reasons for their running away. The weapons carried by accused-appellants at the time he first saw them have not been disclosed nor recovery of any weapon was made from the possession or at their pointing out.
The witness (P.W.I) claiming ownership in the properties of deceased by virtue of sale deed and unregistered Will and contesting litigation was highly interested witness. On careful consideration of evidence of witness (P.W1) in the background of well settled principles of appraisal of evidence and glaring improbabilities, the prosecution failed to prove its case against the accused-appellants beyond reasonable doubt. The Sessions Judge fell in error in brushing aside the infirmities and inherent improbabilities in the prosecution case and placing implicit reliance on the testimony of witness (P.W.I) for recording the finding of conviction.
For the reasons given above we allow the appeal and set aside the impugned judgement and order of conviction of accused-appellants Mallu, Sirtaj, Rambali, Tapesar, Gama and Sadhu under Sections 147 and 302 read with Section 149 I.P.C. The accused-appellants are accordingly acquitted. They are on bail to which they need not surrender. Their bail bonds are cancelled and sureties are discharged.
Certify the judgement to the lower court within a week. The record of the case be also transmitted to the court below immediately.