Durbal vs State Of U.P

1982 whereby the High Court allowed the appeal

preferred by the State and accordingly reversed the

judgment and order of acquittal passed by the trial Court

under Sections 147, 148, 302/149, IPC. The High Court 2

having convicted the accused, sentenced them to life

imprisonment.

2. During the pendency of the appeal preferred by the State

in the High Court, the accused Awadhoo (A-1) and Birbal

(A-3) died and the appeal against them was ordered to be

abated. This appeal is preferred by Durbal, accused No. 2.

3. In order to appreciate as to whether the judgment of the

High Court reversing the order of acquittal, requires any

interference at our hands, we may have to notice the

prosecution case in brief:

The origin of the prosecution case lies in an altercation

between the accused and one Kaldhari (PW 1) alleged to

have taken place two days prior to the date of incident on

23rd December, 1979. It is the case of the prosecution that

one Ramdhani (not examined) in partnership with Kaldhari

(PW 1) had obtained lease of fishery rights in respect of a

pond situated in Harirampur village. They had raised fish in

the said pond. The accused were claiming right to collect fish

from the said pond. Kaldhari (PW 1) along with his 3

companions had gone to village Harirampur for the collection

of the fish from the pond. The accused along with their

associates had also assembled there to collect the fish from

the pond. Their attempts were resisted by Kaldhari (PW 1)

resulting in an altercation. Awadhoo (A 1), since deceased,

threatened Kaldhari (PW 1) of his life. This incident had

taken place in the presence of Madan (PW 4) and one Sidhu

(not examined).

4. It is further the case of the prosecution that on 24th

December, 1979 at about 10.30 p.m. in the night while

Kaldhari (PW 1) was sleeping in his house with its door

bolted from inside, his father Abhi Raj (deceased) and

nephew Bal Kishun (deceased) were sleeping on a takhat

in the verandah, all of a sudden, Abhi Raj and Bal Kishun

(both deceased) raised alarm and in the meanwhile,

someone started thumping on the door of the room where

Kaldhari (PW 1) was sleeping. As he was about to open

the door, he could hear Awadhoo (A 1) commanding him

to open the door. Kaldhari (PW 1) identified him from his 4

voice. Kaldhari then started raising alarm from inside the

house. This attracted Sonai (PW 3), Sheo Kumar (PW 2)

and Lal Mani (not examined) from the neighbourhood who

reached the place of occurrence flashing torch lights. On

seeing the witnesses, Kaldhari gathered courage and

opened the door of his room and came into verandah. He

saw that all the four accused accompanied by two or three

unknown associates were assaulting his father Abhi Raj

and nephew Bal Kishun with knives and bhalas. On finding

that the villagers were gathering at the scene of offence,

the miscreants retreated and before turning away from

the place of occurrence, they also opened fire. The police

station, as per chik FIR is about 20 kilometers away from

the place of occurrence. Kaldhari (PW 1) could not go to

the police station in that night. In the early morning he

got the information registered. At that time, Ram Awadh

Chaudhary (PW 8), the Investigating Officer, was present

at the police station who having registered the First

Information Report, proceeded to the scene of offence 5

and commenced the investigation. He recorded

statements of the witnesses and collected lantern and

torches which were the alleged source of light in which

the witnesses claimed to have seen the occurrence. He

also collected blood stained earth and other material

including an empty cartridge shell and some pellets of the

shot which was fired by the miscreants on the spot. The

dead bodies were then sent for autopsy after holding

inquest and due formalities.

5. Dr. P.N. Awasthi (PW 5) performed the autopsy on 26th

December, 1979 and has found the following ante mortem

injuries on the body of Abhi Raj who was aged about 70

years:

1. Punctured wound clean cut mrgins 1=" x pleural cavity deep, 3" from middle line on front of chest.

2. Punctured wound clean cut margins 1=" x =" x peritoneal cavity deep, just below lower and sternum.

3. Punctured wound with clean cut margins 1<" x <" x pleural cavity deep on right side front of chest in between 3rd and 4th rib 4" from middle line.

6

4. Punctured wound with clean cut margins 1<" x <" x pleural cavity deep 1" below injury No. 3.

5. Punctured wound with clean cut margins 1=" x =" x pleural cavity deep, on right side chest 6"

below right axilla.

Cause of death, in his opinion was shock and hemorrhage as

a result of ante mortem injuries and death had occurred two

days prior to the time of autopsy.

6. On the same day, post mortem examination of the body

of Bal Kishun, a boy aged about 11 years revealed the

following ante mortem injuries:

1. Abrasion <" x <" on front of left side chest 1"

below left nipple.

2. Incised wound <" x 1/44 x muscle deep on front of right side chest =" below right nipple.

3. Twelve punctured wounds with clean cut margins on back of whole of chest in an area of 8" x 8" measuring from 1=" x =" plural cavity deep to 1" x <" x pleural cavity deep, pleura was cut underneath.

In the opinion of the Doctor, the death had occurred

two days before on account of ante mortem injuries 7

and the injuries could have been caused by sharp

edged weapons like knife and bhala.

7. The prosecution in support of its case examined Kaldhari

(Pw 1), Sheo Kumar (PW 2) and Sonai (PW 3) apart from

Dr. P.N. Awasthy (PW 5) and Ram Avadh Chaudhary (PW

8), the Investigating Officer.

8. The trial Court by its well reasoned judgment acquitted all

the accused of the charges. The trial Court found that

there was no motive whatsoever for the accused to have

attacked the deceased on that fateful night. There was no

altercation whatsoever at the pond over fishery rights two

days prior to the incident as alleged by the prosecution.

The trial Court disbelieved Magan (PW 4) who allegedly

witnessed the altercation. He was examined by the

Investigating Officer after more than two months of the

incident. The trial Court also found that PW 4 (Magan) is

closely related to Kaldhari (PW 1). Ramdhani, the alleged

partner of Kaldhari (PW 1) was not examined. The trial

Court also found the evidence of Kaldhari (PW 1) to be 8

highly doubtful. The very fact that Kaldhari (PW 1) was

not attacked by the accused is a strong circumstance,

according to the trial Court, to doubt the prosecution's

case. The trial Court noticed the contradictions in the

statement of Kaldhari and accordingly disbelieved his

evidence. The trial Court also noticed that Sonai (PW 3)

stated that he came out of the house on hearing alarm

raised by Abhi Raj (deceased) and found only Sheo Kumar

(PW 2) and one Lal Mani (not examined). According to

him, no other person was present at the scene of offence.

The trial Court, in the circumstances, came to the

conclusion that it was extremely doubtful as to the

presence of Kaldhari (PW 1) at the scene of offence. The

trial Court also doubted the presence of Sheo Kumar (PW

2) at the scene of offence. The trial Court also disbelieved

the evidence of Sonai (PW 3) who is a close relative of PW

1. His statement is so vague and the same did not inspire

any confidence in the trial Court to accept. The trial Court

also found that the lantern and torch lights were not 9

produced in the Court. The seizure memos of lantern (Ext.

ka-2), torches (Ext. Ka-3) did not contain the crime

number. The trial Court came to the conclusion that since

the offence occurred in the dead of night in the last week

of December, the witnesses could not have identified the

assailants except with the aid of lantern and torches,

whose seizure itself was doubtful.

9. The High Court, upon reappreciation of the evidence

available on record, mainly relying upon the evidence of

Kaldhari (PW 1), came to the conclusion that non-

production of the lantern and the torch lights in the Court

were of no consequence.

10. A short question that arises for our consideration in this

appeal is whether the High Court committed any error in

relying upon evidence of Kaldhari (PW 1) since the whole

prosecution case rests upon his evidence? Whether his

evidence is acceptable based on which the High Court

convicted the accused?

10

11. The whole prosecution case is that on account of the

dispute over fishery rights, the accused bore a grudge

against Kaldhari (PW 1) and even threatened him with

dire consequences. Whether there was any dispute over

the fishery rights itself is highly doubtful. The only person

apart from PW 1 who speaks about the dispute is Magan

(PW 4) who was examined by the police after more than

two months of the occurrence. It is true, motive for

committing the crime pales into insignificance in a case

where the prosecution story rests upon the evidence of

eyewitnesses. But, for the purposes of evaluating and

appreciating the evidence, the sequence of events cannot

be ignored.

12. Be it as it may, there was no enmity whatsoever between

the deceased and the accused. When the suggested

enmity, if at all, was between the accused and Kaldhari

(PW 1), there does not appear to be any reason as to why

the accused should attack the deceased and leave

Kaldhari unscratched. Admittedly, there was not even an 11

attempt by the accused to attack Kaldhari. This story

somehow appears unbelievable and difficult to accept. At

any rate, there is no evidence adduced by prosecution in

this regard. Admittedly Awadhoo (A-1), on reaching the

scene of occurrence on that fateful night, challenged

Kaldhari (PW 1) to open the door. Kaldhari woke up and

reached the door with the torch and lathi in his hand

raising alarm. On hearing the cries, Sonai (PW 3) and

Sheo Kumar (PW 2) reached the spot with torch lights in

their hands. Kaldhari opened the door only after the said

witnesses reached the scene of offence and saw all the

accused along with two or three persons assaulting his

father Abhi Raj and Bal Kishun with knives and spears.

Kaldhari (PW 1) makes an omnibus allegation of all the

accused of their attacking the deceased indiscriminately

with the weapons in their hands. If PWs 1, 2 and 3 were

present at the scene of offence as stated by Kaldhari (PW

1), there is no explanation forthcoming as to why three of

them put together could not resist the accused in 12

attacking the deceased.

13. Sheo Kumar (PW 2) in his evidence stated that two of the

accused were armed with knives and two with lathis. He is

alleged to have witnessed the incident with the assistance

of the torch lights in his hand. He also levels omnibus

allegations against all the accused that they were

inflicting knife and spear injuries on the deceased. It is in

his evidence that about two or three persons were

standing outside the verandah while actually the accused

were inflicting knife and spear injuries over the victims.

Those other individuals remained unidentified. According

to him, he himself and PWs 1 and 3 were also armed with

lathis but no attempts were made to resist the accused

who are indulging in the acts of assault. In the

circumstances, it is doubtful to believe PW 2 to have

actually witnessed the incident and recognized the

accused with the help of torch lights.

14. PW 3 is one Sonai who stated in his evidence that he had

purchased the house along with Kaldhari (PW 1) from one 13

Swaminath Chaudhary. He speaks about the presence of

Sheo Kumar (PW 2) and one Lal Mani (not examined) and

does not speak about presence of any other person

including that of PW 1 at the scene of offence. He also

made indefinite allegations against all the accused as

inflicting knife and spear blows on the victims.

15. It is also required to note that all the eyewitnesses had

stated in their evidence that lantern was burning in the

verandah and Kaldhari (PW 1), Sheo Kumar (PW 2) and

Sonai (PW 3) were having torch lights in their hands and

only with the help of the lantern and the torch lights they

could recognize and identify the assailants. The lantern

and the torch lights though were alleged to have been

seized vide seizure mahazar Exts. Ka-2 and Ka-3

respectively, were not produced in the Court. The seizure

memos Ext. Ka-2 and Ka-3 did not contain the crime

number and other recovery particulars. In the

circumstances, it becomes highly doubtful as to whether

those torch lights and lantern were actually seized during 14

the course of investigation by the Investigating Officer.

The Investigating Officer (PW 8) did not explain as to why

the crime number was not noted on Ext. Ka-2 and Ka-3

and as to why the material objects if at all seized, were

not produced in the Court. The very fact that the lantern

and torch lights were pressed into service for the purpose

of identifying the accused, itself suggests that it was a

pitched dark night during the mid winter and it was not

possible to identify the assailants without the aid of

lantern and torch lights. It is highly doubtful as to

whether PWs 1, 2 and 3 had actually torch lights in their

hands as stated by them, in the absence of their recovery

details in the seizure memo and their not production

before the Court. Moreover, Kaldhari (PW 1) refused to

state as to whether the assailants were covering their

faces with chadar. His evidence does not inspire any

confidence.

16. These all are the factors which give rise to doubt in our

minds as to the presence of PWs 2 and 3 at the scene of 15

offence. The trial Court rightly entertained the doubt and

accordingly gave the benefit of doubt to the accused. It is

a plausible view taken by the trial Court which could not

be held to be a perverse one. Such a view has been taken

by the trial Court after appreciation of the evidence. The

High Court, in our considered opinion, ought not to have

interfered with the judgment of the trial Court merely

because there is a possibility of taking a different view

other than the one taken by the trial Court. The appellant,

in our considered opinion, is entitled to the benefit of

doubt. It would be unsafe to convict the accused on the

evidence which is not free from doubts.

17.For the aforesaid reasons, the impugned judgment of the

High Court is set aside and judgment of the trial Court

shall stand restored. The appellant is thus acquitted of all

the charges and his conviction and sentence is accordingly

set aside. He may be set free forthwith unless otherwise

required in any other case.

18.The appeal is allowed accordingly.

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..................................................J. (B. SUDERSHAN REDDY)

NEW DELHI, .................................................J. JANUARY 25, 2011. (SURINDER SINGH NIJJAR)