Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : S.302 IPC Prosecution Case That Deadbody Was Carried To Another Place By Accused-due To Absence Of Blood On Spot Accused Acquitted
JUDGEMENT TITLE : Brijveer And Ors. Vs. State Of U.P On 21/11/2007 By Allahabad High Court
CORAM : Hon'ble Kawaljeet Singh Rakhra,J. And Hon'ble Raghunath Kishore Rastogi,J.



Criminal Appeal No. 2290 Of 1982

Brijveer And Three Others . . . . . . .. . . . . . . . . . . . . .. . . . Appellants.
State Of U.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .Respondent.
Hon'ble K.S.Rakhra,J.
Hon'ble R.K. Rastogi,J.

This Is An Appeal Against Judgment And Order Dated 15.9.1982 Passed By The III Addl. Sessions Judge, Muzaffarnagar In Connected Sessions Trials No. 383 Of 1981 And 9 Of 1982, Whereby Appellant No.4 Vijendra Has Been Convicted And Sentenced To Life Imprisonment Under Section 302/34 I.P.C., Two Years Rigorous Imprisonment Under Section 452, I.P.C., Four Years Rigorous Imprisonment Under Section 201/34 I.P.C. And One Year's Rigorous Imprisonment Under Section 25 Arms Act. The Remaining Three Appellants, Brijveer, Narendra And Rajveer Have Been Sentenced To Two Years R.I. Under Section 324/34, I.P.C., One Year's R.I. Under Section 323/34 I.P.C., Two Years R.I. Under Section 452 I.P.C. And Four Years' R.I. Under Section 201/34 I.P.C. All The Four Appellants Are Real Brothers Being Sons Of Bhagirath Resident Of Village Dudhaheri Within The Circle Of Police Station Mansoorpur District Muzaffarnagar. Out Of Them Appellant No.2 Narendra Expired During Pendency Of The Appeal And His Appeal Has Abated.
It Is Said That At About 3 Months Prior To The Present Incident Appellant Brijveer Had Borrowed A Sum Of Rs.30/- From Dinesh Pal First Informant. He Was Not Returning The Said Money On One Pretext Or The Other. With A View To Recover His Money Dinesh Pal Borrowed A Sum Of Rs.100/- From Brijveer About Eight Days Prior To The Incident And Subsequently Returned To Him Only Rs.70/- After Deducting Rs.30/- Which He Claimed To Be Due To Him From Brijveer. This Became The Source Of Annoyance And Brijveer Had Threatened Dinesh Pal On Various Occasions By Saying That He Will Definitely Recover His Rs.30/- From Him.
On 1.7.1981,i.e. The Date Of Incident, At About 8 A.M. Brijveer Met Dinesh Pal Who Was Going To His Field And Again Demanded Rs.30/- From Him And Also Threatened That If The Money Is Not Returned, He Will Be Killed On That Date. At About 6 P.M. On The Said Date, Dinesh Pal P.W.3 Along With His Brother Sansar Was Sitting At His Bullock Cart In The Sahan Of Their House And Other Members Of The Family Were Inside The House. His Sister Kumari Savita P.W.4 Was Cooking Food. His Mother And Father Bishambhar Were Also Sitting Nearby On A Cot Below A Neem Tree. It Was At That Time When Appellants Brijveer Armed With Lathi, Narendra Armed With Pharsa, Rajveer Armed With Lathi And Vijendra Armed With A Revolver Arrived There. Brijveer Again Demanded His Money From Dinesh Pal First Informant, Whereupon Bishambhar, Father Of The First Informant, Came To Brijveer From His Cot And Asked Brijveer To Talk To Him In The Matter. On This Brijveer Gave A Lathi Blow To Bishambhar And Simultaneously The Other Three Accused Persons Opened Assault On Bishambhar With Their Respective Weapons. The Informant's Brother Sansar Singh Also Picked Up A Lathi And Wielded The Same In Self Defence Hitting Vijendra And Brijveer. The First Informant Also Wielded Lathi In Defence, But He Was Also Assaulted. While This Marpit Was Going On Appellant Vijendra Fired From His Revolver And The Shot Fired By Him Struk Sansar Singh Who Fell On The Ground And Died. It Is Alleged That Accused Persons Then Forcibly Took Away The Dead Body Of Sansar Singh With Them And Carried It To Their House.
A Report Of This Incident Was Lodged By Dinesh Pal At Police Station Mansoorpur On The Same Day At 19.30 Hours And It Was Registered As Crime No. 121 Of 1981 Under Sections 302, 324, 323 & 452 I.P.C. Etc.
Investigation Of This Crime Was Taken Up By Sri Vishwanath Singh Chauhan, Who Was S.H.O. Of Police Station Mansoorpur And In Whose Presence The Crime Was Registered. He Immediately Commenced The Investigation And Recorded Statements Of The First Informant Dinesh Pal And Bishambhar At The Police Station Itself And Then Despatched Them For Medical Examination. After This He Proceeded For The Place Of Occurrence Alongwith Other Police Force. At About 8.30 P.M. They Reached Village Dudhaheri And Noticed Two Persons Near Maharshi Dayanand School Sitting By The Side Of Road; Who, On Seeing The Police Party, Tried To Run Away, But Were Apprehended On The Spot. They Disclosed Their Names As Vijendra And Brijveer, Who Are Appellants No. 4 & 1 Before Us. On Their Search The Police Party Recovered From Possession Of Vijendra A Country Made Pistol And Two Live Cartridges And Empty Shell Of 12 Bore In Its Barrel. The Country Made Pistol Was Giving Smell Of Fresh Firing. The Police Also Found Some Blood Stains On The Shirt Of Vijendra. The Shirt And Aforesaid Arms And Ammunitions With The Empty Shell Were Taken By The Police Into Their Custody And On The Disclosure Made By Accused Vijendra Before The Police They Also Reached The House Of Vijendra Where Dead Body Of Sansar Singh Was Lying On The Roof Of The House. The Police Also Found Blood Stained Lathi And Broken Spear With Blood Stains Lying Near The Dead Body. These Things Were Taken Into Possession By The Police. The Dead Body Was Also Taken Into Possession But Was Left Lying There Till Inquest Was Prepared On 2.7.1981. From The Place Where The Dead Body Of Sansar Singh Was Recovered, The Police Also Found Blood Stained Earth And Its Sample As Well As Of Simple Earth Were Also Collected.
In Autopsy Four Anti-mortem Injuries Were Found On The Body Of Sansar Singh, One Of Them Was Abrasion And Remaining Three Injuries Which Were Caused By Fire Arm Including Two Wounds Of Entry And One Wound Of Exit. Following Ante-mortem Injuries Were Noted By Dr. S.K.Sharma, P.W.2 :
1.Gun Shot Wound Of Entry 1/4"x1/4" Over Front Of Right Elbow Slightly Towards Lateral Side. No Tattooing Or Blackening Present. Margin Inverted Corresponds To Injury No.2, The Wound Of Exit.

2.Gun Shot Wound Of Exit 1/2" X 1/2" Over Back Of Right Arm Lower 3rd.Margin Everted Corresponds To Injury No.1.

3.Gun Shot Wound Of Entry 1/4" X 1/4" Over Left Side Chest 4??" From Left Nipple At 8.0' Clock Position. Margin Inverted. No Tattooing Or Blackening . This One Fractured Xip-histernum. Right Chamber Of Heart And Lower Lobs Of Right Lung Were Cut And Was Found Embedded Between 6th And 7th Ribs On Right Side.

4.Abrasion 1"x1/4" Over Left Flank 1" Above Iliac Crest.

On Internal Examination The Doctor Found Fracture Of Exiphisternum Below Injury No. 3. Pleura, Lungs And Pericardium, Right Chamber Of Heart Were Found Lacerated. In The Opinion Of The Doctor Death Was Caused Due To Shock And Haemorrhage As A Result Of Ante-mortem Injuries. One Pellet Was Also Recovered By The Doctor From Injury No.3 According To Him Death Of Sansar Singh Might Have Been Caused On 1.7.1981 At About 8.30 P.M.
Similarly Bishambhar And Dinesh Pal, Two Injured Persons Of The Side Of Prosecution, Were Medically Examined By Dr. S.K.Sharma,P.W.2.
Following Injuries Were Found On The Body Of Bishambhar Who Was Medically Examined On 1.7.1981 At 11.40 P.M.:

1.Incised Wound 3/4" X 1/8" X Muscle Deep Over Back Of Left Forearm On Lower One Third.

2.Incised Wound 1/2" X 1/8" X Muscle Deep Over Medial Aspect Of Left Forearm Lower One Third.

3.Contusion 3" X 1 ??" Over Back Of Left Hand. Advised X-Ray.

4.Lacerated Wound 1"x1/4" X Muscle Over Knuckle Of Left Middle Finger.

5.Abradded Contusion 1" X 1/2" Over Left Cheek.

6.Contusion 3" X 1/2" Over Right Scapula Medial Border. There Was Also Complaint Of Pain Over Right Thumb.

The Injuries Were Found Fresh. Injuries No. 1 And 2 Were Caused By Some Sharp Object. All The Injuries Except Injury No.3 Were Found By The Doctor To Be Simple. They Could Have Been Caused At 6 Or 6.30 P.M. On The Same Day.
Dr. S.K.Sharma Also Found Following Injuries On The Body Of Dinesh Pal, Who Was Examined At 11.40 P.M. On The Date Of Incident:

1.Contusion 3 ??" X 3/4" Over Top And Back Of Left Shoulder.
2.Contusion 3" X 3/4" Over Left Scapular Region.
3.Contusion 4" X3/4" Over Left Back Middle One Third.
4.Abraded Contusion 1 ??" X ??" Over Back Bone Middle One Third.
5.Abraded Contusion 1" X ?? " Over Back Of Left Forearm Upper One Third.
6.Contusion 2 ?? " X 3/4" Over Back Of Left Forearm Middle One Third.

All The Injuries Were Simple, Fresh And Caused By Some Blunt Object.

The Other Two Appellants Namely, Rajveer And Narendra Subsequently Surrendered Before The Court. Brijveer And Vijendra, Who Were Arrested By The Police,had Also Some Injuries On Their Person And Were Sent For Medical Examination. They Were Examined By Dr. D.P.Arora P.W.1 On 3.7.1981 At About 12.20 To 12.30 A.M. On The Person Of Vijendra The Doctor Found Following Injuries:
1.Lacerated Wound 3/4" X 1/8" X Scalp Deep On The Right Side Head 3" Above The Right Ear.
2.Scabbed Abrasion 3/4" X 1/4" On The Upper Part Of The Left Shoulder.
3.Abrasion 1/2" X 1/4" On The Right Side Of Abdomen.
4.Abrasion 1"x1/4" On The Right Finger Of The Right Hand.

On The Person Of Brijveer Following Injuries Were Found By The Doctor:
1.Swelling 2" X 2" On The Lower Part Of The Left Thumb.
2.Abrasion ??" X ??" On The Back Of The Right Elbow.

The Injuries Of Both These Accused Were Simple And Caused By Blunt Object And Were Opined To Be 1?? Days Old. The Doctor Clearly Stated That These Injuries Could Have Been Caused On 1.7.1981 At About 6 Or 6.30 P.M.
The Police After Investigation Submitted Charge Sheet Against All The Four Accused-appellants.
The Accused Appellants Contested The Case And Put Forward Their Defence Version. According To Them This Incident Took Place In Two Parts; Firstly, The Quarrel Took Place At About 6 P.M. When Brijveer Appellant Had Gone To Dinesh Pal Etc. To Demand His Money,whereupon He Was Beaten By Them, With Regard To Which He Lodged A Report At The Police Station Which Was Registered As NCR Against Bishanbhar, Dinesh Pal And Sansar Under Sections 323 And 504 I.P.C. According To Defence After Half An Hour At About 6.30 P.M. Dinesh Pal Armed With A Revolver, And Sansar Singh And Bishambhar Armed With Lathis Went To The House Of The Appellants To Pick Up Quarrel And Opened Assault There On Them. Vijendra Appellant In His Statement Under Section 313 Cr.P.C. Narrated The Manner In Which The Incident Took Place. According To Him He Was At His Home When Sansar, Bishambhar And Dinesh Pal Armed With Lathis, And Revolver Arrived There And Opened Assault On Him. He And His Brother Rajveer Also Wielded Lathis In Self Defence, And This Was Witnessed By D.W.3 Laxmi Chand. When Bishambhar Caused Lathi Injury, He Ran Inside His House And Picked Up A Lathi Whereupon Sansar Singh Exhorted Dinesh Not To Wait And Open Fire. Dinesh Opened Fire But The Shot Instead Of Striking Vijendra Or Rajveer Incidently Struck His Own Brother Sansar Singh. Appellant Brijveer In His Statement Also Admitted This Fact That There Was Dispute With Regard To Money And Stated That Sansar, Dinesh And Bisambhar Assaulted Him On The Fateful Day In Galiyara At 6 P.M. And He Wielded Lathi In Defence And In Regard To That He Lodged Report At The Police Station.
In Trial Court The Accused-appellants Were Charged For Committing Offences Punishable Under Sections 452, 302/34, 324/34, 323/34 And 201/34 I.P.C. They Pleaded Not Guilty. Appellant Vijjendra Was In Addition Charged For Committing Offence Punishable Under Section 25 Arms Act. He Also Pleaded Not Guilty.
In Order To Bring Home The Charge The Prosecution Examined Nine Witnesses In All In The Trial. Out Of Them Only Two Witnesses, Namely, Dinesh Pal P.W.3 And Kumari Savita P.W.4 Are The Witnesses Of Fact Who Claimed To Be Eye Witnesses. Dinesh Pal Is The First Informant And Kumari Savita Is His Sister. The Remaining Witnesses Are Formal Witnesses.
Dr. D.P. Arora P.W.1 Is A Witness Who Had Examined The Two Accused Brijveer And Vijendra. P.W.2 Dr. S.K.Sharma Had Examined The Injured Persons From The Side Of The Prosecution And Also Conducted Postmortem Examination Of The Dead Body Of Sansar Singh On 2.7.1981. Siya Ram P.W.5 Is Constable Who Had Taken Injured Persons To The Doctor For Medical Examination. P.W.6 Jagveer Singh Is Constable Moharrir Who Registered The Crime On The Report Lodged By Dinesh Pal As Well As NCR Lodged By Brijveer. P.W.7 O.P.N. Tripathi Is Ballistic Expert Who Had Examined The Fire Arm And Empty Shell Recovered From Vijendra On 1.7.1981 By The Police And Has Given Report That The Empty Shell Was Fired From The Weapon Recovered From Vijendrar. P.W.8 Harkesh Is The Constable Who Had Carried The Dead Body Of Sansar Singh To Mortuary. P.W.9 Vishwanath Singh Chauhan Is The Investigating Officer.
In Defence Three Witnesses, Namely, Sukhveer D.W.1, Ram Nath D.W.2 And Laxmi Chand D.W.3, Were Examined By The Accused. Out Of Them Laxmi Chand Supported Defence Version And Stated That Dinesh Pal, His Brother Sansar Singh And Bishambhar Had Gone To The House Of Brijveer To Fight And They Had Assaulted Brijveer And Vijendra And Also Chased Them Into Their House And Attacked Them. The Other Two Defence Witnesses Sukhveer And Ram Nath Pleaded That They Had Not Seen Any Occurrence.
On The Basis Of The Evidence Adduced Before The Trial Court, The Learned Trial Judge Found That The Evidence Adduced By The Prosecution And The Version Of Incident Given By Them Was Acceptable And Accordingly The Conviction Was Recorded And Sentences As Mentioned Earlier Were Awarded.
We Have Heard Sri Satish Trivedi, Learned Senior Counsel, Assisted By Sri Mangla Prasad Rai And Sri AbhinavTrivedi For The Appellants And Sri Suresh Chandra Dwivedi, Learned A.G.A. For The State, Who Have Taken Us Through The Entire Evidence On Record And We Have Also Gone Through The Judgment Recorded By The Trial Court.
The Learned A.G.A. Strongly Argued That The Prosecution In This Case Has Succeeded To Establish Motive For Commission Of The Crime And There Is Ocular Version Of Incident Given By Dinesh Pal P.W.3 And Kumari Savita P.W.4, Who Have Given Description Or The Manner In Which The Offence Was Committed And It Clearly Shows That The Accused Persons Had Gone To The House Of Informant Duly Armed With Lathis, Pharsa And Revolver And Had Assaulted Bishambhar And Dinesh Pal Inflicting Injuries To Them And To Sansar Singh, Who Had Also Been Fired At And Was Killed On The Spot. They Have Also Stated That The Accused Persons Took Away The Dead Body Of Sansar Singh And Carried It To Their House. The Argument Of The Learned A.G.A. Is That The Above Testimony Of The Witnesses Is Duly Corroborated By Medical Evidence And Circumstances And He Submitted That Prosecution Should Not Fail On Account Of Latches Of The Investigating Officer During The Course Of Investigation. This Argument Was In Reply To The Contention Of The Accused That Neither Dead Body Nor Signs Of Marpit Were Found In The House Of The First Informant Where According To The Prosecution, The Incident Took Place. The Learned A.G.A. Further Argued That The Evidence Adduced By The Defence In This Case Was Not Reliable And Was Not Supported By The Circumstances.
The Learned Counsel For The Appellants, Sri Satish Trivedi, On The Other Hand, Submitted That The Date And Time Of Incident Is Not Disputed Nor It Is Disputed That The Quarrel Was With Regard To The Claim Of Brijveer For Return Of Rs.30/- Which Dinesh Pal Had Deducted From Rs.100/-, Which He Had Borrowed From Brijveer. The Learned Counsel For The Appellant Argued That The Incident Took Place In The Manner Claimed By The Defence And This Is Also Proved By The Testimony Of D.W.3 Laxmi Chand Who Is An Independent Witness Coming From The Neighbourhood. The Defence Theory Of Incident According To The Learned Counsel For The Appellant Was Also Corroborated By The Circumstances That The Dead Body Of Sansar Singh Was Found On The Roof Of The House Of Accused-appellant Vijendra And No Blood Stains Or Other Marks Of Fight Were Found At The Sahan Of The First Informant. He Has Further Argued That Burden Of Proof In The Case Like This Is On The Prosecution To Establish Its Case Beyond Reasonable Doubt And The Defence Is Not Under Such Burden And It Is Sufficient For The Accused To Show And Establish That The Version Of Incident Which They Are Giving Before The Court May Also Be Possible Or Probable. He Further Submitted That The Evidence Adduced In The Case Should Be Examined In The Light Of This Proposition Of Law And The Trial Court Has Failed To Appreciate Their Evidence Properly.
We Have Carefully Examined The Evidence On Record In The Light Of The Submissions Made By Both The Sides. We Are Of The View That The Argument Of The Learned A.G.A. That It Was The Negligence Of The Investigating Officer To Have Not Noticed The Blood Or Other Signs Of Violence In The Sehan Of The First Informant And So It Should Be Ignored, Cannot Be Accepted. The Fact That The Incident Took Place On Account Of The Alleged Dispute Of Rs.30/- Between The Parties Is Not Denied. The Question For Consideration Is Whether The Incident Took Place In The Manner Alleged By The Prosecution. There Is No Evidence On Record To Show That Signs Of Assault And Death Of Sansar Singh In The Sahan Of Dinesh Pal Were In Existence. No Blood Was Found There. No Weapon Of Assault Nor Empty Shell Of The Shot Fired Was Recovered From There, And The Dead Body Was Also Not Found At That Place. To The Contrary The Dead Body Was Found On The Roof Of The House Of Vijendra Appellant No.4, And There Was Also Blood Spot On The Ground. Not Only This, The Investigating Officer Also Found One Blood Stained Lathi And Broken Head Of Pharsa Near The Dead Body Which Are Clear Signs Of The Fact That Sansar Singh Was Fired At And Was Killed On The Roof Of The House Of Vijendra.
There Are Many Other Circumstances Also Which Go Against The Theory Brought Forward By The Prosecution. First Of All, If Sansar Singh Had Been Killed At The Sahan Of Dinesh Pal In The Manner Alleged By The Prosecution, The Most Natural Conduct Of The Culprits Would Be To Immediately Run Away From The Place Of Occurrence To Save Themselves From Being Caught. It Cannot Occur To Such Persons In These Circumstances To Pick Up The Body Of The Deceased And To Place It To Their Own House In Order To Raise Defence.
Secondly, It Is Also Very Difficult To Believe That The Family Members Of Sansar Singh,i.e. Bishambhar And Dinesh Pal And Various Other Members Whose Presence Has Been Mentioned In The F.I.R., Themselves Would Let The Accused Take Away The Body Of Deceased With Them In The Manner Suggested By The Prosecution. There Is No Evidence That Any Of Them Resisted This Attempt Of Accused. They Remained Content By Saying That The Accused Persons Threatened And Asked Them To Keep Silent By Showing Pistol.
Thirdly, There Is No Sign Of Dragging The Dead Body From The So Called Place Of Occurrence To The Place Where It Was Found By The Investigating Officer. Moreover, If For Arguments Sake It Is Believed That Sansar Singh Was Killed At Dinesh Pal's Sehan And, If At All, The Accused Persons Had Decided To Remove His Dead Body, They Would Not Have Carried It In Their Arms, And In All Probability It Must Have Been Dragged And There Must Have Been Signs Of Dragging, Which Are Missing In This Case.
Further It Is Beyond Our Comprehension As To Why The Accused Persons Having Taken Away The Dead Body From Sahan Of Dinesh Pal Would Take It Inside Their Own House And Take Responsibility Of Explaining How The Person Had Died. They Could Have Thrown The Dead Body Outside The House And Raised A Plea That Sansar Singh Along With His Father And Brother Had Come To Their House And Assaulted Them And They Killed Him In Exercise Of Right Of Private Defence.
Even If For A Moment It Is Believed That The Dead Body Was Picked Up By The Accused Persons And Was Taken To Their House And Carried Upto The Roof Of Vijendra's House With A View To Destroy It, We Fail To Understand How The Broken Head Of Pharsa Reached There. Naturally Broken Head Of Pharsa Would Be Found At The Place Where Marpit Had Taken Place. It Is Difficult To Believe That Alongwith The Dead Body The Accus,ed Persons Also Took Away Broken Head Of Pharsa From The Sahan Of Dinesh Pal And Then Left It At The Roof Near The Dead Body. The Blood Stained Earth Was Also Found There.
All These Circumstances In The Light Of The Absence Of Blood At The Alleged Place Of Occurrence And Absence Of Marks Of Dragging From Sehan Of Dinesh Pal To The Place Where The Dead Body Was Found Raise Suspicion About The Story Brought Forward By The Prosecution. As Against This, The Defence Put Forward By The Accused Persons Appears To Be Probable. The Accused Are Not Under Obligation To Prove Their Case Beyond Doubt And It Is Sufficient For Them To Create Suspicion In Order To Earn Their Acquittal.
That Being The Position, We Are Of The View That The Trial Court Has Failed To Make Proper Appreciation Of The Evidence And Has Come To A Wrong Conclusion. The Prosecution Story, In Our Opinion, Is Not Believable And The Appellants Are Entitled To Acquittal.
The Appeal Is Allowed. Accused Brijveer, Rajveer And Vijendra, Who Are Surviving Appellants, Are Acquitted Of All The Charges. Their Conviction Under Various Heads Recorded By The Trial Court And Sentences Awarded Thereunder Are Set Aside.
The Appeal Of The Appellant No. 2 Narendra Has Already Abated.
The Appellants Are On Bail. Their Personal And Surety Bonds Are Discharged. They Need Not Surrender.
Let A Copy Of This Judgment Be Certified To The Trial Court For Information And Necessary Action.

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