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State of U.P. v/s Shiv Shanker & Others

    Government Appeal No. 994 of 1983

    Decided On, 21 February 2014

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE RAKESH TIWARI & THE HONOURABLE MR. JUSTICE KALIMULLAH KHAN

    For the Appellant: ---------. For the Respondents: R.V. Gupta, Rohan Gupta, Shamsul Islam, Sarvesh, Advocates.



Judgment Text

Rakesh Tiwari, J.

1. We have heard learned A.G.A. appearing for the appellant-State, and Sri Shamsul Islam holding brief of Sri Rohan Gupta, Sri Sarvesh, learned Counsel appearing for the respondents-accused. Perused the record. This Government appeal challenges the judgment and order dated 20.12.1982 passed by the VIII Addl. District & Sessions, Judge, Kanpur in Sessions Trial No. 370 of 1981: State v. Shiv Shanker and others, whereby accused-respondents, Shiv Shanker, Shiv Babu, Durga Prasad, Ganga Ram and Raja Ram were acquitted as they were found not guilty of the charges levelled against them.

2. Brief facts culled out from record are that the aforesaid five accused-respondents were committed to the Court of Sessions to stand their trial u/s 302 I.P.C. read with section 149 I.P.C.; that whereas Raja Ram was charged under sections 148 I.P.C. while remaining accused were charged u/s 147 I.P.C. According to the prosecution story in the F.I.R. complainant Jagannath along with his cousin brother Suresh was sitting at his door on 16.9.1981 at about 9.30 P.M. when accused Shiv Shanker came there and said to Suresh "CHALO CHAL KAR RUPIYA LE LO". He took Suresh with him, and at about 9.30 p.m. a call of "BACHAO-BACHAO MARE DAL RAHA HAI" was heard from the South-West side of the village. On hearing the cry for help Mohar Singh (P.W. 1) who was sitting at the door of Vikram, he along with Vikram, Ram Gulam, Maiku and also the complainant Jagannath along with Subedar, Babu Lal, Mohar Singh, Dipty Lal, Goverdhan, Shiv Prasad, Vikram, Ram Narain and Miththu reached the spot with lathi, danda and torches where they saw the accused assaulting Suresh, Puttan alias Ram Kishore with Talwar and Tabbal, accused-respondents-Shiv Babu, Shiv Shanker, Ganga Ram and Durga were pressing Suresh to ground in order to over power him while Puttan and Raja Ram were killing him; tha

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t when they challenged them, the accused persons ran towards the west but after chase were caught near the spot with their weapons used by them which were taken away from the hands of the accused; that in the morning Jagannath got a written report (Ex. Ka-1) scribed by Mohar Singh (P.W. 1) and went to police station-Sheoraj Pur, where check report was prepared by Constable - Ram Shanker Yadav (P.W. 5) and first information report of the incident was lodged on 17.9.1981 at 10.45 A.M.

3. After the F.I.R. was lodged, investigation was taken-up by the Investigating Officer, Madan Singh (P.W. 10) on 17.9.1981, being Station Officer, Police Station-Sheorajpur. Dr. G.P. Tiwari (P.W. 2) Medical Officer, E.S.I. Dispensary Gwaltole, Kanpur conducted the autopsy on the dead body of Puttan on 18.9.1981 at 2.30 P.M. In his estimate the age of the deceased was about 28 years and at the time of post-mortem about one and a quarter day had passed since after the death. In the post-mortem report thirteen (13) ante-mortem injuries were reported by Dr. G.P. Tiwari (P.W. 2) on the dead body of the deceased.

1. Contusion in an area of 12 c.ms. x 14 c.ms. on right side of Head at the level of upper part of Pinna of right ear and upwards.

2. Contusion 1 c.m. x 1 c.m. on left side of face 2 c.ms., laterally downwards from lateral side of left eye.

3. Contusion 2 c.ms. x 1 c.m. on middle of chin.

4. Contusion 8 c.ms. x 4 c.ms. back of left forearm 1 c.m. above left wrist joint.

5. Contusion 2 c.ms. x 2 c.ms. front of left upper arm 11 c.ms. below left shoulder joint.

6. Abraded contusion in an area of 13 c.ms. x 6 c.ms. on back of right forearm 5 c.ms. below right elbow joint.

7. Lacerated wound 2 c.ms. x 2 c.m. x bone deep on front of right leg 16 c.ms. below right knee joint.

8. Abrasion 2 c.ms. x 1 c.m. on front of right leg 3 c.ms. below injury No. 7.

9. Contusion 2 c.ms. x 2 c.ms. on front of right leg 2 c.ms. below injury No. 8.

10. Contusion 1 c.m. x 1 c.m. on front of left leg 16 c.ms. below left knee joint.

11. Contusion 4 c.ms. x 4 c.ms. on front of left leg 4 c.ms. below injury No. 10.

12. Contusion 3 c.ms. x 2 c.ms. on back on upper part, 5 c.ms. below 7th cervical vertebra.

13. Multiple contusion extending in an area of 30 c.ms. x 11 c.ms. on middle and lower part of back 12 c.ms. below 7th cervical vertebra.

4. In the opinion of Dr. Tiwari, the death of Puttan was caused due to shock and haemorrhage, which was result of injuries received by him.

5. On an internal examination of body, the doctor found membranes of the brain congested, the trachea was cut under injury No. 6. Oesophagus was also cut under injury No. 6 about 40 ozs, semi digested white coloured food was present in the stomach. The small and big intestines were half full. In the opinion of Dr. Chandra Prakash, the death of Suresh was caused due to shock and haemorrhage, which was the result of aforesaid injuries.

6. Dr. Chandra Prakash (P.W. 3) Medical Officer, E.S.I. Maternity Hospital, Sarvodaya Nagar, Kanpur conducted the autopsy on the body of deceased Suresh on 18.9.1981 at about 3-15 P.M; who found the age of the deceased to be about 25 years and at the time of post-mortem about 1 and quarter day was passed. In his post-mortem report seventeen (17) ante-mortem injuries were reported by the said doctor on the body of the deceased Suresh, which are as under:

1. Incised wound 5 c.ms. x 3 c.ms. x bone deep on the front of scalp 5 c.ms. above right eye brow.

2. Incised wound 6 c.ms. x 2 c.ms. x muscle deep 2 c.ms. behind left ear.

3. Incised wound 5 c.ms. x 3 c.ms. x bone cut (mandible) left side border of Mandible.

4. Incised wound 15 c.ms. x 3 c.ms. x muscle deep on the left side neck 4 c.ms. below (left) ear lobule.

5. Incised wound 14 c.ms. x 2 c.ms. x 5 c.ms. on the left side neck cutting all carotid vessels and external jugular vein 1 c.m. below injury No. 4.

6. Incised wound 11 c.m. x 3 c.ms. x trachea oesophagus cut on the front of neck 1 c.m. below chin.

7. Incised wound 15 c.ms. x 6 c.ms. x Lt. clavicle cut (lateral end) over left side shoulder.

8. Incised wound 6 c.ms. x 1 c.m. x muscle deep over the left shoulder 2 c.m. below injury No. 7.

9. Incised wound 2 c.ms. x 1 c.m. x muscle deep on the left forearm 11 c.ms. below left elbow back aspect.

10. Incised wound 6 c.ms. x 4 c.ms. x muscle deep in between thumb and left index finger dorsum side.

11. Incised wound 3 c.ms. x 1 c.m. x muscle deep left palm medially and transversely.

12. Incised wound 8 c.ms. x 3 c.ms. x muscle deep (right) Arm back aspect 8 c.ms. away from Axilla.

13. Incised wound 6 c.ms. x 2 c.ms. x bone but in between right thumb and index finger dorsum aspect.

14. Incised wound 12 c.ms. x 3 c.ms. x muscle deep on the left side back 5 c.ms. from middle and upper part of scapula obliquely.

15. Incised wound 4 c.ms. x 3 c.ms. x muscle deep on the left side back 9 c.ms. below injury No. 14. obliquely.

16. Incised wound 7 c.ms. x 3 c.ms. x muscle deep on the right side back 5 c.ms. from mid line and scapular region.

17. Incised wound 8 c.ms. x 2 c.ms. x bone cut (occipital bone) of scalp slightly to the left side from mid line 10 c.ms. away from left ear.

7. As regards the injured persons, Dr. S.K. Raghubanshi (P.W. 7) Medical Officer, P.H.C. Sheorajpur, examined the injured Shiv Babu, Ganga Ram, Durga, Raja Ram and Shiv Shanker on 17.9.1981 in between 9.15 p.m. to 10.45 p.m. He found 4-4 injuries on each of them and 5 injuries Shiv Shanker as per Ext. Ka-7 to Ext. Ka-11. After concluding the investigation the case was committed to the Court of Sessions where charges were framed against Raja Ram, Shiv Shanker, Durga, Ganga Ram and Shiv Bahadur, being members of an unlawful assembly with common object to commit murder of Suresh Chandra, in prosecution of which offence of rioting was committed in which Raja Ram committed the murder of said Suresh Chandra thereby committing offences punishable u/s 302 read with section 149 I.P.C.

8. The accused pleaded not guilty to the charges in their statement u/s 313 Cr.P.C. Admitting the relationship amongst themselves they denied their friendships. They also admitted that Shiv Shanker, Sheo Babu and Durga worked as a labourer; that Sheo Shanker denied having borrowed any money from Suresh Chandra and rest of the accused pleaded ignorance about the transaction; that about 2 and 3 days before the occurrence Jagannath, Suresh Chandra and other villagers asked them for working on their fields, but they refused because insufficient wages were offered by them; that they were labourer on the alleged date and he along with Ganga Ram, Raja Ram, Durga Prasad, Shiv Babu and Puttan was returning from the Village-Veeramau together after doing the daily labour; that on the way home there being a river they always returned together, but on the fateful day Jagannath, Mohar Singh, Dipty, Goverdhan and Miththu surrounded them at the river and assaulted them in which Puttan died.

9. The contention of learned A.G.A. for the appellant-State of U.P. is that the accused Shiv Babu stated that he did not work as labourer at the place of the witnesses because they do not give sufficient wages; that he was a washer-man but did not wash their clothes; that accused Durga has stated that to their defence the complainant lodged a report in collusion with the police; that a day before the occurrence Jagannath and Mohar Singh asked him to work but they refused, therefore, they started working at Veeramau. It is when after doing the daily labour they were returning together when aforesaid persons who were sitting at the river, surrounded and assaulted them; that they in their defence stated that Raj Kishore used Tabbal in self defence and that due to injuries caused in the altercation, Puttan alias Raj Kishore died in the evening.

10. The judgment impugned in this appeal is assailed on the ground that the Court below was entirely mislead by the facts that two of the accused received incised injuries; that ignoring the fact that they were all simple and the doctor has not mentioned them to be grievous; that the Court had not considered the nature of injuries received by the accused, but was mislead by number of injuries received by the victim and that the judgment is based on finding of probability of surmises and conjectures. It is also assailed on the ground that reasons for holding that time and place of incident was doubtful are not sound in fact and in law; that the Trial Court has erred in holding that there was no motive for committing the offence and his finding of this point is unsustainable and therefore acquittal of accused-respondents was unwarranted in law and the Trial Court ought to have convicted the accused persons.

11. Per contra, Sri Rohan Gupta, appearing for the accused persons submits that admittedly there was neither any motive nor any quarrel between the deceased and the accused persons. It is stated that the story as narrated in the F.I.R. is not substantiated or proved by oral and medical evidence and in these circumstances there is no illegality in the judgment and order impugned passed by the Court of sessions in S.T. No. 370 of 1981: State v. Shiv Shanker and others.

12. After hearing learned Counsel for the parties and appreciation of the evidence on record, the Trial Court passed the judgment of acquittal holding that all the accused persons are said to be the residents of Village-Harnu while Suresh and the witnesses are the residents of Village-Sukha Niwada; that the Village-Harnu is in extreme West at a distance of about 1 furlong from the Village-Sukha Niwada, while place of occurrence is about one and half furlong from the Village-Sukha Niwada towards South-West which is about two and a half furlongs from the Village-Harnu towards South East.

13. Noticing the case of prosecution, it is apparent that it was moonlight night and that Jagannath (P.W. 4) had stated that Suresh Chandr and Shiv Shanker were visible for a distance of about 15-16 steps and thereafter they were not visible. Jagdish further stated that Shiv Shanker had said to Suresh Chandra that "Rupiya Taiyyar Hai Chalo Ghar Se Le Lo." The place of occurrence was a lonely place away from the two villages, hence in the aforesaid back ground, the question is that if Shiv Shanker had taken Suresh Chandra with him to his house to Village-Haruna for giving him money back and Suresh Chandra and Shiv Shanker went towards West of village Haruna then from Sukha Niwada to Harnu would not fall on the way. Hence, it does not stand to reason as to how Suresh could reach at the place of occurrence which was about one and half furlong towards South-West of village Sukha Niwada for which there was no plausible explanation from the side of prosecution. The Court also noticed that no alarm was raised by Suresh Chandra (since deceased) if he was being taken forcibly from the house of Shiv Shanker to the place of occurrence which was not on the way to village-Harunu.

14. Furthermore, case of prosecution is that when alarm of "Bachao-Bachao Mare Dal Rahe Hai" was heard from the South West of the village, the witnesses armed with lathi, danda and torches are said to have rushed towards that side and saw from a distance of 20-25 steps that accused persons, Shiv Shanker, Shiv Babu, Ganga Ram and Durga were pressing the accused downward while accused Raja Ram with a Tabbal and Puttan with a sword were inflicting blows on neck of Suresh Chandra (since deceased) and that; when they were challenged, the accused ran towards West leaving behind the body of Suresh Chandra; that the witnesses chased them and after causing them injuries apprehended them and Tabbal and Talwar were snatched from them. In this backdrop statement of Jagannath (P.W. 4) was considered by the Court below that he had deposed that "Jo Char Admi Dabai The Unme Do Ne Pair Va Do Ne Hath Daba Rakhkha Tha".

15. On consideration of the aforesaid statement, the Court below was of the view that the statement of Jagannath makes the position clear as to how Suresh Chandra was being killed. Taking note of the fact that as per post mortem report, Suresh Chandra received 17 ante mortem injuries, therefore, if he was lying with his back downward as stated by Jagannath, there was no question of Suresh Chandra having received injury No. 14, an incised wound measuring 12 c.ms. x 3 c.ms. x muscle deep on the left side back 5 c.ms. from the mid line. Similarly, he could also not have received injury No. 15 an incised wound on the left side of the back below injury No. 14, while injury No. 16 was also incised wound on the right side back 5 c.ms. from the mid-line, and scapular region. Hence, the Court has rightly come to the conclusion that Suresh Chandra (since deceased) was being held to the ground in the manner deposed by Jagannath, P.W. 4.

16. The Court below disbelieved the story of prosecution in the manner of murder of Suresh Chandra as said to have been committed. The reason given by the Court in this regard is that injury No. 10 was found between thumb and left index finger of dorsum side, whereas injury No. 11 was on left palm, injury No. 12 on right arm back aspect 8 c.ms. away from Axilla and injury No. 13 between the right thumb and index finger dorsum aspect. Injury No. 9 was on the left forearm 11 c.ms. below left back aspect. Therefore, if the hands of Suresh Chandra were being pressed by two of the accused as alleged by the prosecution witnesses, the aforesaid injuries on the palm and dorsum side of hands could not be possible to be caused to him.

17. Apart from above, the Court below also disbelieved the injuries caused to the deceased as stated by the prosecution, causing his death on the spot, whereas Puttan one of the assailant is stated by accused Shiv Babu in the statement recorded u/s 313 Cr.P.C. to have died in the morning while other accused persons had stated that Puttan died in the evening. Hence the version of prosecution that Puttan died in the morning was rightly disbelieved by the Court below. From the evidence, it was also established that Puttan also died in the night, hence out of the two versions the defence version was found reliable and in any case, the prosecution version about the manner of the Marpeet was neither proved nor appeared to be plausible.

18. It is apparent from record that Puttan received 13 injuries and the doctor had opined that his death was due to shock and haemorrhage as result of injuries received above, hence from his statement too, the time of death also became doubtful.

19. On consideration of evidence, judgment of the Court below and upon hearing learned A.G.A. for the appellant-State as well as learned Counsel for the respondents-accused, we are of the considered view that observation and conclusion of the Court below that prosecution has failed to prove as to how Suresh Chandra who had gone to Village-Harnu with Shiv Shanker for taking his money back reached at the place of occurrence at a considerable distance from the two villages.

20. Learned A.G.A. also could not advance any satisfactory explanation before us as to how the accused received so many injuries particularly when Suresh Chandra (since deceased) was pinned down yet received injuries on his back and front of aspect of his body and how did the incised wounds on Puttan came to be caused on hearing the call of Suresh Chandra, Mohar Singh (P.W. 1), Vikram, Ram Gulam and Maiku who reached the spot armed with lathi and danda and not with any cutting weapon particularly when the 'Talwar' and 'Tabbal' in the hands of accused persons are stated to have been snatched by them, hence all these circumstances lead to the one and only one conclusion as reached by the Court below that defence version to be probable about the manner of marpeet.

21. The Court below rightly found that prosecution has failed to prove beyond all reasonable doubts that the incident took place in the manner as suggested by the prosecution and the possibilities of the incident having taken place in the manner as suggested by the defence can not be completely ruled out.

22. In the circumstances and for the reasons stated above, we are of the view that the reasons given by the Court below holding accused-respondents to be not guilty of the offence under sections 147/148/302/149 I.P.C. are cogent and convincing. The view taken by it, appears to be a possible view. No illegality or infirmity in the order impugned could be shown by learned A.G.A. We, therefore, concur the reason and findings recorded by the Court below and uphold the judgment and order impugned in this appeal. The appeal is, accordingly, dismissed.

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