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Judgment
M.C. Jain, J.—The State of U.P. has come up in appeal against the judgment dated 14.10.1981 passed by Sri S. C. Jain, the then Sessions Judge, Mirzapur in Sessions Trial No. 264 of 1980, acquitting the two accused Respondents-Kishore Singh and Daya Chaubey of the charge u/s 302, I.P.C. read with Section 34, I.P.C. relating to the murder of one Smt. Subhadra Verma, allegedly in furtherance of their common intention.
The deceased Smt. Subhadra Verma was a midwife and belonged to District Ballia where her husband was employed as lecturer in some college. She had been transferred to Robertsganj. After purchasing some land in village Sihore, she had constructed a small house. Accused Kishore Singh belonged to Robertsganj while Daya Chaubey resided in village Majhgawa situated nearby. In July, 1980, a theft was committed at her house. The report had been lodged without naming anybody but nothing came out and final report was submitted. She suspected that the two accused Respondents were behind that theft and had so held out all around. It was resented to by the accused-Respondents and they started harbouring grudge against her. In village Sihore, she was living alone. Her eldest son was a doctor, doing house job in Kabir Chaura Hospital, Varanasi. Her second son Arvind Kumar P.W. 8 was studying in Intermediate. However, because of floods his college was closed and 3-4 days before the incident he had come to live with his mother. The incident took place between the night of 3/4th September, 1980. She and her son Arvind slept in the only completed room of their house. A lighted lantern was there. At about 11.30 p.m. the accused Respondents allegedly appeared there after breaking open the door. They had countrymade pistols wherewith they opened fire on her. Sustaining the fire shot injuries in her abdomen, she fell down and the accused Respondents escaped. Baijnath P.W. 1 and Chandra Shekhar P.W. 2 were related to her and lived in village Shripalpur situated nearby. Hearing the sound of gunshot they rushed to the scene along with other villagers. Sound of groaning was coming out from inside the house. They called Arvind who then opened the main door facilitating their entry inside. They found the lady lying injured on the ground in a state of great distress near by her cot. She was removed on a cot to the police station and at her dictation the report was allegedly scribed by Baijnath P.W. 1 and presented at the police station at 2 a.m.
The investigation was taken up by S.I. Kalp Nath P.W. 9 (to be ultimately completed by S.I. S. N. Singh P.W. 7). S.I. Kalp Nath P.W. 9 allegedly recorded the statement of injured and then sent her to hospital escorted by Constables Lallan Rai P.W. 5 and Dwarika Singh. She was examined by Dr. Visheshwar Singh P.W. 3. She was then referred to District Hospital, Mirzapur, after giving some elementary treatment. She, however, expired at about 3.30 a.m. before being admitted in District Hospital, Mirzapur. Constable Dwarika Singh then proceeded to the police station and the case was converted into one u/s 302, I.P.C. The dead body after being sealed was sent for post-mortem. From the spot the Investigating Officer recovered pellets and wads in the room of the incident. The broken door and a ladder found on the spot were taken in possession and given in the custody of Chandra Shekhar P.W. 2. On autopsy being conducted by Dr. Visheshwar Singh P.W. 3 on 4.9.1980 at 3.30 p.m. she was found to be aged about 45 years and about half day had passed since she died. There was gunshot wound in her abdomen without any tattooing, blackening or scorching. Intestine had come out through the injury and large and small both intestines had been punctured, 65 pellets, wads and pieces of cardboard were found in the wound.
The prosecution relied on the testimony of Baijnath P.W. 1, Chandra Shekhar P.W. 2 and Arvind Kumar P.W. 8 besides backing upon medical and formal evidence relating to investigation and allied matters. Arvind Kumar P.W. 8 was said to be the eye-witness of the incident. The prosecution also sought to rely on the statement of the deceased claimed to have been recorded by the first S.O. Kalp Nath P.W. 9, which was designated as her dying declaration.
The defence was of denial and false implication.
The learned trial Judge held that the manner in which the F.I.R. was lodged was suspicious ; that the so-called statement of the deceased could not be treated as her dying declaration and that the presence of Arvind Kumar P.W. 8 at the time of the incident was doubtful and, therefore, he could not be relied upon as an eye-witnesses. With this main approach, he recorded the finding of acquittal which has been assailed by the State in this appeal.
We have heard Sri S. K. Pal, learned A.G.A. from the side of the Appellant in support of the appeal and Sri Amar Saran, learned Counsel for the Respondents in opposition thereof. The record of the lower court is before us which we have carefully perused. On scrutiny of the evidence on record carefully, we find ourselves in complete agreement with the finding of acquittal recorded by the court below and we intend to deal with in the succeeding discussion our reasons in this behalf.
To begin with, the motive assigned by the prosecution for the commission of this crime by accused Respondents was illogical. We are conscious that motive is not evidence in a case. But when the prosecution comes up with a motive, it is required to be examined on the anvil of probabilities. In the instant case, the motive allegedly was that in the theft committed at the house of the deceased lady in July, 1980, she suspected it to be the handiwork of the two accused Respondents and had so held out to all and sundry causing annoyance to them (accused Respondents). The so-called motive, in our opinion, was too tenuous to have inspired the accused Respondents to take it into their heads to commit the murder of the lady, it being the admitted case of the prosecution that in the F.I.R. of that theft, nobody was named and a final report was ultimately submitted. That means to say, the accused Respondents were not subjected to any trouble or harassment with regard to that case. Judged in this light, there was no sufficient motive for the accused Respondents to have committed the murder of the deceased lady.
Secondly, the manner of the lodging of the F.I.R. allegedly at the dictation of the deceased lady was shrouded in suspicious circumstances. The report on the face of it, was lodged at the police station on 4.9.1980 at 2 a.m. A look at the post-mortem report of the deceased lady indicates that she was seriously and mortally wounded so much so that intestine were coming out. As many 65 pellets, wads and pieces of cardboard came to be found in the wound. Kalp Nath P.W. 9, who investigated the case, stated that the F.I.R. had not been scribed in his presence. He did not know as to by whom and when it was scribed. Head Constable Jiledar Singh P.W. 4 stated that written report had been presented by Subhadra Verma at 2 a.m. and he prepared the chick report Ex. Ka-4 on its basis. She had been brought at the police station on a cot and he was present at the police station at that time. The written report had been brought to him by Baijnath P.W. 1 who presented the same to him soon after his arrival at the police station. He denied that the report had been scribed at the police station which was inconsistent to the testimony of Baijnath P.W. 1 himself that he scribed it at the police station at the dictation of the injured lady. it came down from his cross-examination that he reached the police station at 1.30 a.m. and when the S.I. came, he told him about the incident and the latter asked him to give a written report. Someone who accompanied him brought the paper from somewhere and he scribed the report at the dictation of Subhadra Verma. It is also in his testimony that the S.I. inquired from the lady about the occurrence. She was said to have dictated it in a voice audible from a distance of 5 or 6 paces. At that time, the Head Constable was on his seat and the Sub-Inspector was by his side and they could hear what she had stated. It would be recalled that S.I. Kalp Nath P.W. 9, denied that the F.I.R. was scribed in his presence. Obviously, the circumstances in which the F.I.R. was written as disclosed by Baijnath P.W. 1 were contradictory to the statement of Head Constable Jiledar Singh P.W. 4 and Kalp Nath P.W. 9 incapable of leading to any definite conclusion as to when and where it was written by Baijnath P.W. 1 and on what basis. Having regard to the serious condition of the injured, it was most doubtful that she was the author of the F.I.R. and had dictated it to Baijnath. She had received gunshot injury in her abdomen of very serious nature. The large and small intestine were punctured. A loop of intestine (about 2 ft.) had come out through the injury. When she reached the hospital at 2.30 a.m., she was unconscious. All this makes it difficult to believe that she was in a position to dictate the F.I.R. It appears that she was first taken to hospital, and not to police station. In this way, the contents of the F.I.R. were under cloud giving a serious jerk to the foundation of prosecution case as against the accused-Respondents.
We are also in agreement with the learned trial Judge that no reliance could be placed on the so-called dying declaration, Ex-Ka-14 of the deceased allegedly recorded by the Investigating Officer Kalp Nath P.W. 9. It is noted from the testimony of Dr. Visheshwar Singh P.W. 3 that she had reached the hospital at 2.30 a.m. and at that time, she was unconscious and within 10 minutes of her arrival, she died. However, the statement of Kalp Nath P.W. 9 is that he had started recording her statement at the police station at 2.35 a.m. and completed the same at 3 a.m. The statement of Head Constable Jilendar Singh P.W. 4 is still at variance that the Investigating Officer had been called from his quarter situated near the police station and when he arrived, the entry in the G.D. had already been made and the injured had already been sent to the hospital. He categorically stated that the Investigating Officer had arrived at the police station after about half an hour of the departure of the injured from the police station to the hospital. The perusal of the said statement Ex. Ka-14 itself leaves not the slightest doubt that it is a fabricated piece of evidence coined by the Investigating Officer to give a boosting to the prosecution case. In it, the seriously injured victim gives full details about her sons, daughters and other relations. It sounds to be quite unnatural that so seriously injured victim would devote time in her so-called dying declaration to unnecessary details. 2 ft. of her intestine were found to have come out when she had reached the hospital. Both of her intestines large and small were punctured and she was in great distress. She also allegedly stated therein that the accused persons had earlier committed theft at her house. It was belied by the fact that in the F.I.R. of that case no one was named, either directly or on suspicion. Neither she nor her son Arvind Kumar P.W. 8 disclosed the names of the accused (thieves) in the statements u/s 161, Cr. P.C. as we note from the evidence of S.I. Ram Awadh P.W. 6 who had investigated that case of theft. All facts and circumstances considered, no reliance could be placed on the so-called dying declaration of the deceased and it has rightly been discarded by the learned trial Judge.
The conduct of Arvind Kumar P.W. 8 completely belied his presence at the spot at the time of the incident and we veer around the idea that he was not at all there and was subsequently made to stand as a witness. He admittedly studied in Inter College, Ballia where his father was employed as a lecturer. He claimed to have come to his mother a few days earlier to the incident as his college had closed due to floods. Undoubtedly, her mother was seriously injured in the incident and was struggling between life and death. This witness did not accompany her to the hospital. He was not instrumental in the lodging of F.I.R. also. He stated that he accompanied his mother upto the crossing but then proceeded to Varanasi to call his elder brother. For that purpose also, he adopted a course not appealing to reason. He claimed to have gone to Churk situated in opposite direction. It came down from him that trucks coming from Churk and proceeding to Varanasi passed in front of the hospital. Therefore, he could very well accompany his mother to hospital and then proceed to Varanasi. His absence after the occurrence till the next evening was not free from doubt as rightly observed by the learned trial Judge. He did not say to the Investigating Officer in his statement u/s 161, Cr. P.C. that after the departure of the accused, he had chained the door from inside. There could hardly be any necessity for doing so after the offence had been committed. Rather, the natural conduct would have been of some step on his part to shout aloud to attract anyone for help to take his precarious mother to the hospital to save her life, if possible. Obviously, his statement suffered from serious infirmities leading to the irresistible conclusion that he was not at all present at the spot and was not an eye-witness. Had he been present at the spot, he would not have been left unharmed by the accused-Respondents, if they were actually the assailants.
If follows from the above discussion that all the three pillars on which the prosecution case was propped up tumbled down. The spontaneity of the F.I.R. was under cloud and it could not be believed that it had been dictated by the victim herself disclosing the names of the accused Respondents as the perpetrators of this crime. The basis and source of their so naming in the F.I.R. remained in the womb of obscurity. The so-called dying declaration of the victim was a fabricated document, not worthy of any reliance. The testimony of so-called only eye-witness ; namely, Arvind Kumar P.W. 8 was shattered to pieces and fell through on being tested on the anvil of reliability. Far from suffering from perversity or misreading of evidence, no other finding than of acquittal could possibly be recorded on the judicious appraisal of the evidence in the light of the attending circumstances.
It appears that the accused Respondents somehow came to be nominated as the culprits of this crime on the basis of suspicion. May be, the police was also instrumental in getting them so nominated on the basis of the earlier incident of theft in which prosecution side suspected them to be behind that incident. Needless to say, by getting someone nominated in the F.I.R., the burden of investigating agency to investigate, the case and find out the real culprit is reduced to a very great extent. That might have been the reason of local police being also instrumental in getting the accused Respondents so nominated. Anyway, this appellate court is not required to speculate on this aspect of the matter and to record a finding in this behalf. We have just made the above observation as a passing reference.
The long and short of the above discussion made by us is that the finding of acquittal has rightly been recorded by the learned trial Judge which is not capable of being reversed by this Court of appeal.
The appeal is hereby dismissed. The accused Respondents are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.
A certified copy of this order along with the record of the case be sent to the court below for incorporating necessary entry in the concerned register under intimation to this Court within two months.