Surendra Dubey and Others vs State of U.P.

Vipin Sinha, J.—Heard Sri G.S. Chaturvedi, learned Senior Advocate for the appellants and Sri Akhilesh Singh, learned GA with Sri Rajeev Gupta, learned AGA for the State and perused the record of the case.

This criminal appeal arises out of a judgment and order dated 16.6.2014 passed by Additional Sessions Judge, Court No. 4, Kushinagar, Padrauna in S.T. No. 90 of 2001 by which he has convicted and sentenced all the appellants to hang till death under Section 302/34 I.P.C. and fine of Rs. 30,000/- each, in default of which, two years further simple Imprisonment and seven years rigorous imprisonment under Section 201 IPC and fine of Rs. 20,000/-, in default of which, one year further simple imprisonment.

The prosecution story, in brief, is that a First Information Report was lodged by Ramesh, the brother of the deceased, in his capacity as first informant on 22.5.2000 at about 5.00 PM with regard to an incident which took place on 22.5.2000. As per the FIR, the time of incident is 2.00 PM, which is said to have taken place at village Mugrahi Paikoli which is at the distance of 6 Km. from the police station. The prosecution version as it unfolds in the FIR itself is to the effect that about 18 years ago, the sister of Surendra Dubey, namely, Indu had run away with the brother of the first informant, namely, Ramjeet Kauri (the deceased) and out of the said liaison, one son Shailesh and a daughter Km. Savita were born. It has been stated that Indu again ran away from Bombay with one Madrasi leaving behind two children. Ramjeet Kauri was living in Bombay with his two children and was looking after them at Bombay. Ramjeet Kauri returned to his village along with his two children on 14.5.2000 and on the said date when the first informant along with his brother (first informant) and two children were going to their fields and as they reached the canal, at about 2.00 PM they were accosted by Surendra Dubey, Virendra Dubey and Guddu Dubey all sons of late Dharm Raj Dubey, who caught hold of Ramjeet Kauri and took him towards the canal at which the first informant shouted and at that moment Virendra Dubey had fired at Ramjeet Kauri (deceased) by his "Katta" (country made pistol) by point black range as a result of which the brother of the first informant fell down on the ground and died. Thereafter the accused had chased the first informant and the two children at which all three of them ran away. It has also been mentioned in the FIR that number of villagers arrived at the spot on whose arrival the accused-appellants stopped chasing the first informant and the children and turned back saying that CHALO SAALE KI LAASH GAYAB KAR DE. It has also been mentioned in the FIR that out of fear, the first informant and children remain in hiding and only after some time they returned to the spot and found that the body was missing.

During the investigation all the appellant had surrendered before the court below on 29.5.2000 and thereafter their statements were recorded and in the disclosure statements made by them about the weapons of assault, namely, "Katta" (country made pistol) and Spade which are said to have been hidden by them at particular place and on their disclosing the same can be recovered. The body of the deceased was found next day i.e. on 23.5.2000, however, the head of the body was missing. The police after collecting the cogent reasons has submitted the chargesheet against all the accused-appellants and on the basis of the chargesheet the learned Magistrate took cognizance and committed the case to the Sessions Judge for trial.

P.W. 3 Dr. Amrendra Pratap Singh had conducted the postmortem on the body of the deceased on 23.5.2000 at 3.30 PM and he had found the following ante-mortem injuries:

Now before we proceed to go through the evidence on record, it would be relevant to bring on record the contention as has been raised at the Bar by either side in brief.

Shri G.S Chaturvedi, Senior Advocate appearing for the appellants has vehemently contended that the present is a case of blind murder and infact no body has seen the incident and the appellants have been falsely implicated merely on account of enmity. He further contended that the prosecution has failed to explain the injuries on the body of the deceased and further no reasons have been attributed for drawing away the body or for beheading the body. He has also contended that the evidence of the prosecution does not inspire confidence and the prosecution story as set up is highly improbable and untrustworthy. He further contended that the recovery has not been proved and the weapons have not been connected with the murder and, thus, the appellants are entitled for acquittal.

Shri Akhilesh Singh, learned GA with Shri Rajeev Gupta, learned AGA appearing for the State, on the other hand, has strongly contended that a prompt FIR was lodged by P.W. 1 Ramesh who had given a graphic version of the incident which clearly establishes the manner in which the incident had taken place. He further contended that the presence of P.W. 1 and eyewitness P.W. 2 Km. Savita cannot be disputed. He contended that the appellants have a strong motive in view of the fact that the appellants'' sister had run away with the deceased though long time back and also on the ground that during the time that the deceased was living in Bombay the appellants had grabbed his entire fields and even got the mutation done. He further contended that the child witness Km. Savita, who was approximately 10 years of age at the time of incident, has corroborated the prosecution story. The alleged weapon of assault namely spade has been recovered at the instance of the appellants on which blood was found and, thus, he has prayed for dismissal of the appeal.

In view of the contentions as raised at the Bar, this court proceeds to examine the evidence as has come on record individually and separately.

Shri Ramesh, who is the brother of the deceased, was examined as P.W. 1, a bare perusal of whose testimony shows that there are full of contradictions in his statement. He, in his statement, has stated that the name of his brother was Ramjeet who had run away about 20 to 25 years ago along with Indu, the sister of the present appellants. He stated that of the said liaison two children were born namely, Shailesh and Km. Savita. Thereafter Indu again ran away with some Madrasi leaving behind the children. He further stated that on the date of incident his brother (the deceased) had come to his village along with his children and had gone to see his fields. He stated that there was a dispute with regard to the fields with Guddu Dubey, one of the appellants who had occupied the land of the deceased by force with regard to which a case was pending. He stated that while they were going back, all the three accused appellants had accosted the deceased. Virendra Dubey fired from a close range at the deceased thereafter all the accused appellants had dragged the body near the canal. As the deceased had fallen down, all the appellants had chased him (P.W. 1) and the two children who made good their escape. He also stated that there were a number of villagers present at the spot and had seen the incident at the distance. He further stated that after the assailants had run away, he along with two children returned to the spot and found the body missing. He also states that an application was transcribed by one Amit Kumar which was read over to him, who thereafter signed the said application. He stated that he recognized the body on the basis of the stitch mark on the stomach of the body. The body was sent for the postmortem and the "Panchnama" was done.

However, if we examine his cross-examination, we find that the deceased had run away to Bombay about 25 years ago and never returned to the village but returned for the time when the incident is said to have occurred.

It has come in evidence that the younger brother of the first informant had also gone missing and was never found. He further stated that:

It has also come in evidence that after the deceased had run away to Bombay along with Indu, he was not maintaining any ties with the family members or with the first informant himself and he had returned the village for the first time on 13-14.5.2000 from Bombay. It has also come in evidence that the first informant himself was also highly troubled by the arrival of family of his brother (the deceased) who had initially broken all ties from the family. Apparently, as the younger brother had gone missing and the elder brother had gone to Bombay and thus the first informant was quiet complacent about his share in the property of his parents which complacency was disturbed on account of sudden arrival of his brother (the deceased) and his two children. His annoyance as appears from his statement is to the effect that

If the story of the prosecution is to be believed, than it seems to be highly not understandable that even though the appellants were not aware of the arrival of the deceased and the first informant, but still they were present at the precise time when the deceased along with two children and the brother had gone to see his fields.

With regard to the incident, P.W. 1 Ramesh states that:

It may be clarified here itself that in the site-plan, the "Pokhra" has not been shown and P.W. 1 was also not aware as to where the children were hidden. There is nothing in his testimony as to how and under what circumstances he could see the incident from a "Pokhra". The further version of P.W. 1 Ramesh that the appellants had chased him and the two children and while the children running away to some other place, he had taken the shelter of a "Pokhra". It is also unbelievable that such an incident took place and though the villagers were present at the spot but none of the villagers have been examined. His further statement is also highly not credible inasmuch as he stated that:

In fact it has come in evidence that they were residing in different villages and for the first time they had come to this village that too from a outer road without going into the village to see the field and, thus, it is highly improbable that all the three appellants met them near a canal duly prepared for assault on the deceased.

P.W. 1 Ramesh, in his cross-examination, further states that

This again is a contradiction as there is no such averment in the FIR itself.

There is no reason as to why the said act of beheading the body was not mentioned in the FIR as he had really seen the incident. At one phase, P.W. 1 says that immediately after the firing, he along with two children ran away while children running away towards abandoned house to hide themselves and he had taken the shelter of a "Pokhra" but still P.W. 1 describes the incident in his testimony as

Thus, overall reading of testimony of the first informant i.e. P.W. 1, it is apparent that it is quiet different from the version as given in the FIR and thus, this witness is totally unreliable.

Sri G.S. Chaturvedi, Senior Advocate has strongly contended that in view of the aforesaid facts and circumstances and the testimony as is evident, there could be a possibility of the fist informant himself having orchestrated the murder himself as he was shaken out of complacency on account of the sudden arrival of his elder brother who had broken all ties for the last 25 years and also because he was comfortable in the thought that elder brother has broken all ties and was not maintaining any relation with the family and the younger brother having already gone missing, the entire property will belong to him.

The daughter of the deceased, namely, Km. Savita was examined as P.W. 2. She in her statement has clearly stated that

It is surprising that they could have heard the assailants saying because it has come in evidence that while the children were running away in one direction and the first informant running in the other direction and both have stated in their testimonies that they had heard the assailants saying that

. 24. P.W. 2 Km. Savita further states that as soon as the firing has taken place, the accused-appellants had chased the children and the first informant and on such chase the children ran away in one direction and the first informant had run away in other direction. P.W. 2 Km. Savita further states that

Thus, it is apparent that at best she could be an eye-witness to the incident of firing. Thereafter she had escaped along with her brother and had taken shelter in a house.

It may be appreciated that no details have been given with regard to the existence of the house as to whose house it was and also it has not been shown in the site-plan. Moreover, it is highly improbable that the in the house which came into existence, nobody was living in the said house.

P.W. 2 further states with regard to the house that:

Another contradictions in the testimony of Km. Savita P.W. 2 is that:

Km. Savita further states that:

Another important aspect which has to be appreciated here is that the prosecution as set up in the FIR is with regard to single shot whereas alleged eye-witness P.W. 2 Km. Savita has stated that

Thus, it is apparent that the case of the prosecution as set up in the FIR is entirely different from the version as given by the alleged two eye-witnesses, namely, the first informant Ramesh himself (P.W. 1) and Km. Savita (PW2).

Another important aspect of the matter is with regard to the recovery of weapon. In the testimony of P.W. 4 C.P. Tiwari, he has stated that

However, Km. Savita P.W. 2 in her statement has stated that

Thus, it has rightly been contended by the learned Senior Advocate that no reliance can be placed on such recovery.

P.W. 5 Patru Yadav, who is a witness of recovery and P.W. 6 Videshi have been declared hostile.

It has also to be appreciated that even though blood was found on the spade but as per the report of Serologist, it was disintegrated blood and, thus, it has also been contended that the weapons "Spade and Katta" alleged to have been recovered, have not been connected with the murder.

Learned Senior Advocate for the appellants has also drawn the attention of this Court towards the testimony of P.W. 4 C.P. Tiwari, who in his statement has stated that

Thus, this factum goes to the support of the case of the appellants that no weapon is said to have been recovered in any manner whatsoever and it cannot be connected with the murder of the deceased Ramjeet. It may also be appreciated that the brother of Km. Savita has not been examined by the prosecution even though in the testimonies of both P.W. 1 and P.W. 2, it has come that a number of villagers had reached the spot but surprisingly none of the villagers have been examined.

Dr. Amrendra Pratap Singh was examined as P.W. 3, who had performed the postmortem on the body of the deceased. He has stated that

However, as contended by Sri G.S. Chaturvedi, Senior Advocate that there is nothing on record to show as to how and under what circumstances, the deceased had suffered injury Nos. 2 and 3 which are to the following effect:

There is no explanation from the side of the prosecution that as to how and under what circumstances, these injuries have come into existence and thus on this ground also a serious doubt has been raised with regard to the story of the prosecution.

P.W. 4 C.P. Tiwari, in his statement, has stated that

Ram Das Yadav was examined as P.W. 7, who in his statement has stated that on 22.5.2000 in the presence of his and Alham Ansari, the Investigating Officer had collected the blood stained soil from the place of murder and some plain mud was collected. In his cross-examination, P.W. 7 stated that:

A very important aspect of the present case is that the version as has cropped in the statements of P.W. 1 and P.W. 2, who were eye-witness to the alleged incident is totally different from the version of the prosecution as set up in the FIR which was lodged by P.W. 1 i.e. first informant claiming himself to be an eye-witness.

Thus, if we examine the testimony of the two main witnesses, namely, the first informant Ramesh and P.W. 2 Km. Savita, the daughter of the deceased, it can be safely concluded, even if the prosecution story is believed to be true, that immediately after the first shot was fired the children along with first informant had made good their escape by running in different directions while the first informant took shelter in a alleged "Pokhra" though it has not been shown in the site-plan and the two children took shelter in a house which again has not been shown in the site-plan nor anybody has come forward to say that the children were hiding in the house. It is difficult to believe the story of the prosecution as set up with regard to the beheading of the body in the diabolic manner and also in the testimonies of first informant and P.W. 2 there is nothing on record to show as to how and in what manner they have seen the actual act of beheading as has been described by them in their testimonies and, thus, this Court can safely conclude that the evidence as given by both P.W. 1 and P.W. 2 is highly improbable, unbelievable and no trust can be suffice on these two witnesses.

A reference may be made to a judgment of Apex Court passed in the case of Ram Kumar Pande v. The State of Madhya Pradesh reported in AIR 1997 SC 1026 wherein it has been clearly held that "no doubt an FIR is a previous statement which can, strictly speaking, be only used to corroborate a contradict the maker of it. The Court has further held that we think that omissions of such important facts, affecting the probabilities of the case are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case."

In the present case, although P.W. 1 and P.W. 2 have claimed themselves to be the eye-witnesses, but the fact remains that the version as contained in the FIR is totally different from the version so as in the testimonies of P.W. 1 and further P.W. 2 and, thus, this Court strongly feels that in such circumstances, the accused-appellants are entitled to be extended the benefit of doubt.

A reference may also be made to another judgment of Apex Court in the case of State of M.P. Vs. Dhirendra Kumar, wherein a reference has been made to a case of Ram Kumar v. State of Madhya Pradesh, AIR 1975 SC 1022, wherein the Court has opined that material omission in the FIR would cast doubt on the veracity of the prosecution case despite the general law being that the statements made in the FIR can be used to corroborate or contradict its maker. This view owes its origin to the thinking that if there be material departure in the prosecution case as unfolded in the FIR, which would be so if material facts not mentioned in the FIR are deposed to by prosecution witnesses in the Court, the same would cause dent to the edifice on which prosecution case is built, as the substratum of the prosecution case then gets altered. It is apparent that prosecution cannot project two entirely different versions of a case. The Court further that this is entirely different from thinking that some omission in the FIR would require disbelieving of the witnesses who depose about the fact not mentioned in the FIR. Evidence of witnesses has to be tested on its own strength or weakness. While doing so, if the fact deposed be a material part of the prosecution case, about which, however, no mention was made in the FIR, the same would be borne in mind while deciding about the credibility of the evidence given by the witness in question."

However, it goes without saying that FIR is not to be taken as an encyclopedia and omission of fact therein, even if material, cannot itself make the witness about that fact unbelievable at that point but the fact remains in a case that an entire process of execution of the deed has been changed. It has to be appreciated that if the first informant i.e. P.W. 1 the brother of the deceased and P.W. 2, the daughter of the deceased had infact really seen the occurrence, there was no reason as to why the same version did not find a place in the FIR itself. A very important aspect which creates a doubt regarding the entire prosecution story is with regard to the fact that in the FIR or in the version as given in the FIR the incident is confined with regard to shooting and that too of firing one shot from close range whereas in the testimonies of P.W. 1 and P.W. 2 the incident has been described in an entirely different manner with regard to the beheading of the body. However, in both the versions, the explanation with regard to other injuries found on the body of the deceased have not been explained especially facture on the body and this also goes along the way in making the entire story of prosecution doubtful with regard to the presence of the eye-witnesses.

As far as recovery is concerned, the witness to the recovery has been declared hostile and the alleged weapons, namely "Spade and Katta" have not been connected with the actual murder. The recovery of Katta itself is disputed and the blood found on the Spade was disintegrated blood.

As far as question of motive is concerned, apparently it seems that the first informant had greater motive inasmuch as accused-appellants'' sister had run away about more than 25 years ago and never returned and the first informant had, even if the prosecution story is believed to be true, taken over the property of the deceased whereas if we compare the motive of either side we find that the first informant had a greater motive inasmuch as he was complacent about his getting the remaining property of his parents-ancestors in view of the fact that the elder brother had run away to Bombay and for the last 25 years had not maintained any relationship with his parents and with the first informant and younger brother had also gone missing and thus, the first informant must have been taken by surprise when all of a sudden the deceased arrived at the village along with his two children with the categorical feeling which was expressed to the children to the effect that CHAL KAR KHET DEKH LO WARNA TUMHARA CHACHA HADAP LEGA.

One strong factum in favour of the appellants is that one can understand the firing of the shot, one can also understand the beheading of the body but there is no explanation on record as to how and under what circumstances the two fractures have come into existence and thus the medical evidence does not corroborate the case of the prosecution as set up in the FIR and also set up in the testimonies of P.W. 1 and P.W. 2. It seems that the present is a case of blind murder and nobody has seen the actual incident.

From the perusal of the evidence on record, it is apparent that there is a vast contradiction with regard to the prosecution version as contained in the FIR and the version as has been elicited from the testimonies of P.W. 1 and P.W. 2 and it can also be safely presumed that had the incident taken place in the diabolical manner as very graphically mentioned in the testimony of P.W. 1 there was no reason as to why it was not mentioned in the FIR itself. In fact the testimonies of P.W. 1 and P.W. 2 are a classic illustration of what being idiomatic English language is termed as a cock and bull story. It would be a sheer travesty of justice if the accused appellants in the present appeal are sent to the gallows solely on the basis of such scanty evidence of P.W. 1 and P.W. 2. Moreso, as it is quiet doubtful, keeping in mind the intensity and gravity of the motive, that the deed in question might have been orchestrated by somebody other than the accused appellants.

Thus, in view of the aforesaid facts and circumstances, this Court feels that there is not enough cogent evidence on record to convict the accused-appellants as convicted by the court below and the appellants are entitled to be given the benefit of doubt. Accordingly the appeal is allowed. The order of the trial court dated 16.6.2014 convicting and sentencing the accused-appellants is set aside. Consequences to follow.

The reference No. 6 of 2014 for confirming the sentence of death is accordingly rejected.

The copy of the order be communicated to the CJM concerned for compliance.