Subhash vs State of U.P. and Others

O.P. Jain, J.—This revision is directed against the judgment dated 17th December, 1997 passed by District and Sessions Judge, Muzaffarnagar in Sessions Trial No. 876 of 1997, State of U. P. v. Mahendra and Anr.. By the said judgment, the learned Sessions Judge has acquitted accused Mahendra and Yakoob of the charge u/s 302 read with Section 34, I.P.C.

The main ground in this revision against acquittal is that the learned Sessions Judge rushed through the trial and after recording the evidence of only four witnesses, out of a list of twenty-one witnesses, the order of acquittal was passed. The trial opened on 28th August, 1997 when the charge was framed against the accused and the order of acquittal was passed on 17th December, 1997, i.e., within less than four months. As will be shown presently, it is a classic case of "justice hurried is justice buried."

The prosecution story may be stated briefly in the words of learned Sessions Judge (Sri M. A. Khan) as under :

On 22.3.1997 at 8.30 a.m. complainant Lala alias Sakat Singh s/o Risal, r/o village Nala, P.S. Kandhla, district Muzaffarnagar lodged a written report (Ext. Ka-1) at P.S. Kandhla alleging that his son''s wife Smt. Rakesh was a woman of loose character. On 22.3.1997 she was sleeping on the first floor with her son Subhash. There was the light of electricity. At about 3 O''clock in the night about four persons came at the first floor of his house and tried to molest with Smt. Rakesh wife of Rukam Singh. At the same moment, Subhash awakened and he made cries. Smt. Rakesh also made protest. At this two of the miscreants gave Palkati blows on the body and neck of Smt. Rakesh and on the hand of Subhash. Hearing the hue and cry, the complainant, Raj Pal s/o Kali Ram and Kali Ram s/o Prabhu and many others reached there and saw that Mahendra son of Ram Chand and Yakoob s/o Pheru Teli, armed with Palkati were committing Marpeet. Smt. Rakesh breathed her last at the spot. The accused ran away seeing them. Subhash was taken to Shamli for medical aid. It is also mentioned in Ext. Ka-1 that they can identify the two unknown miscreants if brought before them. On the basis of this written report (Ext. Ka-1), Chik report (Ext. Ka-2) was prepared and the case was registered in Crime No. 102 of 1997, u/s 302/324 of the Indian Penal Code and the investigation was entrusted to S.I. Sri R. P. Singh, and an entry in the G.D. was made. The Investigating Officer reached the scene of occurrence, recorded the statements of the witnesses, prepared the Panchayatnama (Ext. Ka-3) Photo-Lash (Ext. Ka-4) ; letter to Chief Medical Officer, Muzaffarnagar (Ext. Ka-4) ; letter to R.I. (Ext. Ka-6) ; and Challan-Lash (Ext. Ka-8). Ext. Ka-7 is the copy of F.I.R. The Investigating Officer also prepared the site-plan (Ext. Ka-12) of the place from where on the pointing out of accused Yakoob, Palkati, an arm used in the commission of the crime, was recovered and also prepared the site-plan (Ext. Ka.-13) of the place where this incident took place. The Investigating Officer also took in possession the bloodstained and plain earth from the place of occurrence and prepared its Fard (Ext. Ka-11) in presence of witnesses Lokesh and Bhanwar Singh.

The dead body of Smt. Rakesh was sent to District Hospital, Muzaffarnagar for post-mortem examination, where Dr. Vishnu Dutt, Medical Officer, District Hospital, Muzaffarnagar conducted the post-mortem examination on the dead body of Smt. Rakesh on 22.3.1997 at 3.00 p.m. The age of the deceased was about 32 years and about half a day had passed at the time of post-mortem since the death. Rigor mortis was found all over the body and there was no decomposition. Eighteen incised wounds were found by the doctor as ante-mortem injuries. Thus, it was a ghastly murder. In the opinion of the doctor the cause of death was shock and haemorrhage as a result of ante-mortem injuries. The post-mortem examination report is Ext. Ka.-9 on record.

On 30.3.1997 on the information of a Mukhbir accused Yakoob was arrested by the police from his house and was interrogated. He narrated a detailed story and confessed his guilt. He stated that he and accused Mahendra had illicit relations with Smt. Rakesh and on the point of supply of milk there was exchange of hot words between Smt. Rakesh and them. To take revenge of that insult the accused with two other companions committed this heinous crime and when Subhash objected, he was also given Palkati-blow on his hand by accused Mahendra. When their companions tried to molest with Smt. Rakesh, she became annoyed and hurled abuses and so accused Mahendra gave many Palkati-blows on her body and neck, that after committing this brutal murder accused Mahendra handed over the Palkati to this accused for hinding it and he stated that he can get recovered that Palkati and then the Investigating Officer on the pointing out of accused Yakoob recovered the Palkati, the arm used in the commission of this crime, and prepared its Fard (Ext. Ka-10) in presence of witnesses Sewa Ram and Ram Pal.

The investigation of this case was transferred two three times. Accused Mahendra could not be arrested nor he surrendered in Court and so steps for proceedings u/s 82, Cr. P.C. were taken. Then on 23.5.1997 he surrendered in Court and was taken into judicial custody and was sent to jail."

I have heard Mr. S. S. Malik, learned Counsel for the revisionist, Mr. P. C. Srivastava learned Counsel for the accused and A.G.A. for the State and have gone through the record of the Court of Session.

The first thing which attracts attention in this case is that in the committal order passed by the C.J.M., Muzaffarnagar, it was specifically mentioned that prima facie case under Sections 302 and 326, I.P.C. is made out against the accused. But the learned Sessions Judge did not frame a charge u/s 326, I.P.C. and framed charges against the accused u/s 302 read with Section 34, I.P.C. only.

It is argued by the learned Counsel for the accused that the injury report of Subhash is not available on record and, therefore, the learned Sessions Judge did not frame a charge u/s 326, I.P.C. A perusal of the record shows that a copy of the injury report has been filed along with the revision and is Annexure-4 to the memo of revision. In the case-diary, it is mentioned that Subhash was admitted in Bohra Nursing Home at Shamli. It is further mentioned in the case-diary that the left hand of Subhash was severed near the wrist joint. In fact, the learned Sessions Judge himself was conscious of the fact that Subhash received a grievous injury in this incident. It has been observed by the learned Sessions Judge in the judgment as under :

As Subhash was given a serious Palkati-blow and his left hand was completely cut from the elbow-joint, the case was converted into one u/s 326 of the Indian Penal Code from u/s 324 of the Indian Penal Code. After completing necessary formalities and investigation, the Investigating Officer submitted charge-sheet (Ext. Ka-16) against accused Mahendra and Yakoob under Sections 302 and 326 of the Indian Penal Code.

Therefore, there was no apparent reason for the omission to frame a charge u/s 326, I.P.C. and it shows that the learned Sessions Judge (Sri M. A. Khan) did not deal with the case with due care.

As stated above, the prosecution examined four witnesses, namely, Kali Ram (P.W. 1), Raj Pal (P.W. 2), Sewa Ram (P.W. 3) and Ram Pal (P.W. 4). Witnesses Kali Ram and Raj Pal were examined on 18.11.1997 and the remaining two witnesses Sewa Ram and Ram Pal were examined on 10th December, 1997. All these witnesses turned hostile. Kali Ram and Raj Pal were witnesses of fact and P.W. 3 Sewa Ram and P.W. 4 Ram Pal were witnesses of recovery of Palkati at the instance of accused Yakoob. After the evidence of these four witnesses was recorded, the A.D.G.C. (Criminal) Sri Raunaq Ali Zaidi moved an application on 10th December, 1997 that the remaining witnesses including Subhash should be summoned by issuing a non-bailable warrant against them. It does not appear from the record that any summon was served on Subhash and he failed to attend the Court. Yet the learned A.D.G.C. (Criminal) prayed for issuing of a non-bailable warrant against him and the learned Sessions Judge in a routine manner allowed the application and issued non-bailable warrant against Subhash who is the injured person and who had received grievous injury in this incident and who is the present revisionist.

On 17th December, 1997, the A.D.G.C. (Criminal) Sri Raunaq Ali Zaidi filed another application in which it was stated that in this case only two witnesses remained to be examined and a report has been received from the police station that witness Lala alias Sakat Singh has died and that the whereabouts of Subhash could not be ascertained as he has disappeared from his house. Sri Raunaq Ali Zaidi, A.D.G.C. (Criminal) prayed that the remaining witnesses should be discharged. Along with this application, Sri Zaidi submitted a report from the police station in which it is stated that Lala alias Sakat Singh has been murdered on 10.7.1997 and Case No. 199 of 1997 u/s 304, I.P.C. has been registered in respect of the same. It was also mentioned in the police report submitted by A.D.G.C. (Criminal) to the Court that Subhash could not be traced and has gone out of station. It further says that his address is not known and he is out of station for a long time.

On this report being filed by Sri Raunaq Ali Zaidi, A.D.G.C. (Criminal), the Court discharged all the remaining witnesses and the prosecution closed its case. On the same day, the Court recorded an order that as there is no circumstance against the accused, their statements u/s 313, Cr. P.C. need not be recorded and the judgment of acquittal was passed on the same day.

The learned Sessions Judge did not consider it necessary to record the statements of the Investigating Officer who had recovered the Palkati from the accused Yakoob. It is true that the Motabir witnesses of the recovery of Palkati had turned hostile, but the recovery can be proved by the person who made the recovery. The learned Sessions Judge did not attach any importance to the fact that witness Lala who was reported to have been murdered is the same person who had lodged the F.I.R.

In the opinion of this Court, the learned Sessions Judge completely abdicated his function when he accepted the report submitted by A.D.G.C. (Criminal) at its face value. Had the learned Sessions Judge taken slightest trouble, it would have realized that there is something fishy and the alleged disappearance of the star witness of the prosecution is highly suspicious. In fact, it appears that the issuing of non-bailable warrant against Subhash, a boy of thirteen years of age, was calculated to terrorise him so that he may not appear as a witness during the trial. It has already been stated above that there was absolutely no justification for issuing a non-bailable warrant against Subhash because no summon was ever served on him.

The revision has been filed with an affidavit of one Balwan who is the elder brother of Subhash. It is stated in the affidavit that his younger brother Subhash aged 13 years received injuries in this incident and after the murder of his mother, his grandfather (Lala) was also murdered. It is further stated in paragraph 6 of the affidavit that the State counsel conspired with the accused to give them undue advantage and it is further stated in paragraph 7 of the affidavit that the State counsel moved the application dated 17.12.1997 with mala fide and evil intention and sought discharge of the witness Subhash on absolutely fictitious grounds.

After a perusal of the record, it appears to this Court that the allegations made by the person swearing the affidavit against Sri Raunaq Ali Zaidi, A.D.G.C. (Criminal) is not without basis. The learned A.D.G.C. (Criminal) has acted in a most unusual manner and was instrumental in getting hasty orders passed by the learned Sessions Judge.

To sum up, the record shows that the trial has been conducted by the learned Sessions Judge (Sri M. A. Khan) in a very hasty manner and he allowed himself to be led by A.D.G.C. (Criminal). The result has been a failure of justice.

In view of the above discussion, the revision is allowed and the judgment of Sessions Judge, Muzaffarnagar dated 17th December, 1997 in S.T. No. 876 of 1997, State v. Mahendra and Yakoobis set aside. The case is remanded to the learned Sessions Judge with the direction to try the case de novo and to complete the trial as early as possible preferably within six months.

Accused Mahendra and Yakoob are directed through their counsel to appear before the Court of Session at Muzaffarnagar on Ist of July, 1998. The revisionist is also directed through his counsel to appear before the Court of Session on Ist of July, 1998 so that a date may be fixed for his evidence in his presence. In case accused Mahendra and Yakoob fail to appear before the Court on Ist July, 1998, their presence will be secured by issuing non-bailable warrants and notices will also be issued to the sureties to produce the accused.

The office of this Court is directed to send the record to Sessions Judge, Muzaffarnagar within two weeks positively.