Pukary vs State of U.P.

Uma Nath Singh and S.N.H. Zaidi, JJ.—We have heard learned Counsel for parties and perused the record.

This criminal appeal arises out of a judgment dated 28.4.2005, passed by learned Sessions Judge, Bahraich, in Sessions Trial No. 195 of 2000, convicting sole accused Pukary of the offence u/s 302, I.P.C.

From the narration of prosecution case, it appears that on 15/16.7.2000 at about 8.30 in the night, deceased Bhawani Prasad Srivastava, a Forest Sub-Inspector, went for dinner to the house of accused Pukary. As he did not return till late night. Forest Guard Kishun Singh and Wild Life Guard Om Prakash Chandra went out with torch in search of Bhawani Prasad at about 12.30 in the midnight. When they reached near the house of Pukary and switched on their torch, they saw the accused running away from his house. At that time a lamp was burning in the courtyard and Bhawani Prasad (deceased) was found lying in injured condition on a cot. He was bleeding from the left side of his neck. When he was asked as to what happened, he pointed out that accused Pukary having just stabbed him had run away. When they decided to carry Bhawani Prasad for treatment, he succumbed to his injuries on the cot itself. Thereafter, they came out and raised hue and cry which attracted the villagers. Accused Pukary was searched but he could not be traced out.

Forest Guard Kishun Singh (P.W. 1) submitted a written report (Ext. Ka-1) at police station Sujaoli in the night of 16.7.2000, which led to registration of an F.I.R. at 1.50 a.m. against the accused.

Investigation was undertaken by Station House Officer, Digvijay Singh (P.W. 7). He recorded the statement of complainant as also of Om Prakash Chandra (P.W. 2). and took into possession their torch. Thereafter, the Investigating Officer (I.O.) reached the scene of occurrence, being the house of accused, where the dead body of Bhawani Prasad was lying on a cot in the courtyard of the house. Since it was a dark night, a light was arranged, and then the Investigating Officer prepared the inquest report of dead body and completed other procedural formalities. He sealed the dead body and also collected bloodstained earth from the scene of occurrence, which he again sealed and then prepared a panchnama in respect thereof. He also prepared a panchnama (Ext. Ka-7) of the lamp, which was said to be burning in the house of accused. The Investigating Officer having inspected the scene of occurrence also prepared the spot map (Ext. Ka-8).

Accused Pukary was searched and arrested on the same day in evening. The accused was put to interrogation and on his pointing out a knife was recovered. Investigating Officer prepared a panchnama (Ext. Ka-10) in respect thereof. He also completed the recording of statements of witnesses.

Dead body of deceased Bhawani Singh was sent to Bahraich for post-mortem examination which was conducted on 17.7.2000. Autopsy Surgeon, Dr. J. K. Shukla (P.W. 6), vide his report (Ext. Ka-4) noticed the following injuries:

Incised wound on left side of the neck 4 cm. x 2 cm. x depth reaching to cervical third vertebrae fine neck. Body of C3 is also cut. Underlying all vessels and nerves severed 5 cms. below from the left ear lobule (pinna).

On internal examination, the doctor noticed the presence of about 300 gms. of undigested food like rice and meat. It smelt the presence of alcohol. In the opinion of doctor, the cause of death was shock and excessive bleeding as a result of ante-mortem injuries.

Finally, on completion of investigation, a challan [vide Ext. Ka-11) was laid against the accused and the Magistrate concerned committed the case to the Court of Sessions for trial.

The accused denied the charges but he admitted that the deceased with Mohanlal, a Forest Contractor, had come to his house. They had purchased chicken for Rs. 50 and had also taken liquor. Thereafter, they went to sleep in their houses and the accused also went to bed. The moment he came to know about the incident that the Forest Sub-Inspector was done to death, he raised hue and cry and went to police station, where he gave an oral information about the incident. The accused, thus, pleaded ignorance about the incident and examined one defence witness Vishram (D.W. 1) in his favour.

On appreciation of evidence, learned trial Judge while placing reliance on two intimating circumstances namely: (i) that the accused was seen running away from his house by the prosecution witnesses; and (ii) that he gave an oral dying declaration before these witnesses, recorded the conviction of accused as aforesaid.

Sri Subodh K. Shukla, learned Counsel for Appellant submitted that the trial court has wrongly placed reliance on the circumstances as aforesaid while discarding other circumstantial evidence placed on record by the prosecution. Sri Subodh K. Shukla also submitted that looking to the nature and gravity of injury, though solitary in number, it would not have been possible for the deceased to make an oral dying declaration. It is also a submission that the dead body was found lying in the courtyard, of accused which was an open space and was accessible to all. Even one of the prosecution witnesses, namely Chheda (P.W. 5), has stated that there was no recovery of weapon from the place as alleged by the prosecution, and this witness also turned hostile. Moreover, as per evidence of Dr. J. K. Shukla (P.W. 6) the injury noticed on the body of deceased was not received from the weapon of offence, but from a large size sharp edged weapon.

Sri Subodh K. Shukla also submitted that it has been admitted by complainant, Kishun Singh (P.W. 1), that when he went to police station to lodge the report, the accused was already present there. Thus, the defence taken by accused that he had not run away from the scene of occurrence and had gone to police station for lodging the report stands proved. Even in the alleged oral dying declaration, the deceased had not given the name of accused and the witnesses have stated that the deceased had only pointed towards the house of accused.

On the other hand, learned State counsel supported the trial court judgment showing that though the conviction is based only on two circumstances but they seem to be cogent and fully established by the prosecution evidence.

On a careful consideration of rival submissions and perusal of records, we notice that the presence of witnesses, namely, Kishun Singh (P.W. 1) and Om Prakash Chandra (P.W. 2) does not seem to be probable, particularly for the reason that nowhere in their testimonies it has come that the deceased had disclosed the place where he was to go for food on the fateful night. Besides, it has also not come in the statements of witnesses that the accused was seen running with any weapon and it seems equally improbable that the accused would have offered a cot in his house to the deceased for staying in the night if the motive that the deceased had indulged in teasing the daughter of accused is taken to be correct. Besides, the accused was already present in the police station before the complainant could reach there with Om Prakash Chandra (P.W. 2) to lodge a report. In his cross-examination, Kishun Singh (P.W. 1) has admitted that accused Pukary was seen present in the police station when he reached there to lodge a report. The time as pointed out by the witness was about quarter to one in the night. Similar is a statement of Om Prakash (P.W. 2) who has also admitted that they saw the accused present in the police station when they had reached there. It also looks to be improbable that the prosecution witnesses, without a prior information, would have reached the house of accused in search of the deceased, and further, looking to the nature and gravity of injury it was not possible for the accused to have uttered a word, much less to say that he could have made an oral dying declaration. Knife, the alleged weapon of offence which was recovered from the possession of accused, was only a vegetable cutting knife as stated by the Investigating Officer, Digvijay Singh (P.W. 7) and as per the medical evidence/testimony of Dr. J. K. Shukla (P.W. 6) in his cross-examination, the injury as noticed in the post-mortem report was not possible from that knife. Moreover, it is stated by Vishram (D.W. 1) that the deceased, having taken liquor and chicken in the dinner, had slept in the courtyard of house of accused, a place which appears to be accessible to all as per the site plan.

In view of all the aforesaid discussion, we find merits in submissions of learned Counsel for Appellant and, thus, the impugned judgment is not sustainable.

Hence, this criminal appeal is allowed and the impugned judgment and order are set aside. Accused-Appellant, Pukary, son of Bangali, resident of Tepara, Police Station Sujaoli, district Bahraich, who is presently lodged in jail, is directed to be released forthwith, if not wanted in connection with any other case.