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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: ABDUL & ORS.

DATE OF JUDGMENT:       05/05/1997

BENCH: M.K. MUKHERJEE,S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:       JU D E ME N T S.P. KURDUKAR, J.      The village  Tilokpur consists  ofseveral hamlets, of which Kurtharais onewhere Abdul  Ali son ofMaikoo (A-1) was residing  but lateron  he shifted  to village  Tilokpur. Mustaffa (A-2)was also  residing at  village Kurthara but thereafter shifted  to villageTilokpur. Vikram  (A-3) and Ramanuj(A-4)  are theresidents of  village Kurthara. All these four  accused persons  happened to be close friends of each other,  ofwhom,  Abdul Ali  (A-1)was  the Pradhan  of Tilokpur Gram  Panchayat for  about fifteen  years until  he lost the  election to  the post of Pradhan  toShanker Lal (since deceased).  At the  timeof incident which took place on December  24, 1983,undisputedly  Shanker  Lal  was the Pradhanwho  belonged to the opposite group. The accused and in particular Abdul Ali(A-1) did not cherish the success of ShankerLal  asthe Pradhan of village Tilokpur. The victory of  Shanker  Lal  as  the  Pradhan  was celebrated  by his supporters in  the village  which addedan additional insult to theego ofA-1. Accordingto  the prosecution,  these factorslead  to the strained and inimical relations between the two groups, one  headed byA-1 andthe other by Shanker Lal. 2.   Itis  alleged bythe prosecutionthat a year prior to the  incident  in  question,  A-1  andhis  associates has attempted to  commit the  murder  of  Shanker  Lal,  but  he survived and  at the  material time  a criminal case  under Section307  ofthe  Indian Penal  Codewas  pending against them. A case under  Section 107  of the  Criminal Procedure Code was also pending against A-1. 3.   According to the prosecution, a day beforethe incident in question,  Shanker Lal  received a notice relating to the ‘No ConfidenceMotion’being  moved  against  him.  It was allegedthat  A-1 and  his associates  were instrumental  in moving this  ‘No Confidence Motion’. Shankar Lal, therefore, on December  24, 1983  i.e. the date of  incident left his house at  about7.30  a.m. along with his brother Mangal (PW 1) anduncle Chhote  Lal (PW  2) and  reached the  house of DwarikaPrasad(DW 1)to discuss  about the ‘No Confidence Motion’. In  the said  meeting,it  wasdecidedto challenge

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the  validity  of  the‘No  Confidence Motion’  before  an appropriate forum  and to  obtain a  stay  order;  forthat purpose, they  were togo to Lucknow. Dwarika Prasad (DW 1) told Shanker Lal and his associates to go aheadand he would join after  a short  time. Accordingly, Shanker Lal, Mangal and Chhote  Lalleft  the house of Dwarika  Prasad andwhen they reached  near thehouse of  Dhanendra Jain,  A-1 armed with his  double barrel gun, A-2  and A-3  armed with katta (country made  pistol) and  A-4armed  with  banka  suddenly appeared on  the scene of offence and encircledShankerLal. A-4 used  filthy language  against  Shanker  Lal.  A-1then suddenly firedat Shanker  Lal. A-4  assaultedShankerwith banka whereas  A-2 andA-3 fired  fromtheir katta (country made pistol).  Shanker Lal on receivinga gun shot and other injuries fell  down and died at  the  spot.  This  incident happened at  about 8.45a.m.. The soundof firearms and the cries  raisedby  Mangal  and Chhote Lal  attracted the attention of  acoupleof  persons  includingMahadin and Mahabir. All the accused thereafter fled away. 4.   Mangal (PW 1) dictated  the report  of the incident to his uncle  Chhote Lal (PW 2) and was signed by both of them. They carried  the report  to  the  police  station  Masauli, Distt. Barabanki  and handed  it over to HC Sukhanta Ram (PW 3) whoprepared the  FIR (Ex. Ka-2) and registered thecase at about  1.00 p.m.  Mohan LalPandey (PW 6), the SHO along with police  force    reached  the  place  of  incident for necessary  investigation.   After  drawing   up an  inquest panchanama (Ex.Ka-5) on the dead body,it was sent forpost mortem examination  through  constableJagdish Pandey and villageChowkidar  Rahmat Ali. Dr. Ram Mohan (PW 4) held the autopsyon  thedead  body on 25th December, 1983. Mohan Lal Pandey (PW 6) then prepared several panchanamasand recorded the statementsof various  witnesses. During  the course of investigation, Mohan Lal Pandeyreliably learntthat A-1 had deposited his  fire arm on December  24, 1983 at about9.30 a.m. in the shop  of Waheb  Ali. The said weapon came to be seized under seizure panchanamaon 6th January,1984. During the course  of investigation,  the accused person came to be arrested. After completing the investigation,all thefour accusedwere  put up  for trial for an offence  punishable under  Sections  302/34  of   the  Indian  Penal  Code for committing the murder of Shanker Lal. 5.   The accused deniedthe allegation levelledagainstthem and pleaded  that theyhave been  falsely implicated in the presentcrime  out of  enmity. They areinnocent and they be acquitted. 6.   The prosecution  in support  of  its  case principally relied upon  the evidence  of  two  eye witnesses,  namely, Mangal (PW  1) and  Chhote Lal(PW 2)in addition  to the evidence of  Dr. Ram  Mohan, M.O. (PW 4) and panch witnesses and various  panchanamas. The  accused in  support of  their defenceexamined Dwarika Prasad(DW 1). 7.   The IVth  Addl. Session  Judge, Barabanki,on appraisal of oral and documentary  evidence on record byhis judgment and order  dated 31st  August, 1988  convicted all  thefour accusedpersons under Sections 302/34of  theIndian Penal Code for  committing the  murder of  Shanker Lal.  The trial judge awarded  death sentence  to AbdulAli (A-1) and made a reference under Section 366  Cr.P.C. to  the AllahabadHigh Court, Bench atLucknow. A-2 toA-4 were sentenced to suffer imprisonment for life. The reference made by the trial court came tobe numbered being Capital Sentence Reference No.3 of 1988. In  the meantime, all the  four accused persons filed Criminal Appeal to the High Court challengingthe legality and correctness of thejudgment and order of conviction and

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sentence passed against them.All these  criminal  appeals along with  aforesaid referencewere here together. TheHigh Court, on  reappraisal of  evidence and other materials  on record vide  its judgement  dated Ist December,1988 allowed all the   three  appeals  filed  by  the  accused  persons, rejected the reference and acquitted each one of them of the chargeslevelled  against him. It is this judgment and order of acquittal passed by the HighCourt  which issought to be challenged by  the  State of U.P. in these criminal appeals. Since these criminal appeals arise out of a common judgment, they are being disposedof by this judgment. 8.   Weheard  the  learned  counsel  for  theparties and perusedthe  oral evidence  andother material on record. We have also gone through the judgments ofthe courts below and in ourconsidered view the impugned  judgmentof  theHigh Court is not only erroneous on interpretation of Section 174 Cr.P.C.but  itsuffers from serious  infirmity as  regards appreciation ofevidence on record in proper perspective. We are conscious  that weare dealing  with  thejudgment  of acquittal passed by theHigh Court. Unless, we find that the impugned judgment  is based  on misconceptionof  law and erroneous appreciationof evidence  onrecord, this  Court would not  interfere with the judgment of acquittal. Wemay, therefore, point  out how  the findingsrecorded by theHigh Court are unsustainable. 9.   While disbelieving the correctness  and reliability of the FIR,  the High  Court heavily  placed reliance  upon the contents of  the inquest panchanama (Panchayatnama) prepared under  Section174  of the  CriminalProcedure  Code and contrasted withthe recitals inthe FIR. The High Courtheld that inthe inquest panchanama,it was recordedthat Shanker Lal was shot dead  by fire  arm but  it did  not  make any reference to the fact that Shanker Lal was alsoassaulted by banks. The  investigating officer  has failed  to record any injury on  the person  of Shanker  Lal having been caused by banka. The HighCourt then observed as under:-      "The primary purpose of holding and      inquest is to ascertain  the cause      ofdeath and to find out whether it      is   homicidal,  suicidal    or      accidental.  Thelaw   therefore,      requires a PoliceOfficer to make      an investigation and  prepare  a      report describingthe  wounds  and      indicating by   what  weapon  such      wounds appear  to have been caused.      The  inquest   report,   though   a      document  of   limited  scope   and      nature,   can    nevertheless    be      utilised under  section 145  of the      Evidence Act.   As pointed out earlier, in the      instant case, the inquest report is      silent asto the use of banka. Why      has  the  use  ofbanka  not  been      mentioned in the "Panchayatnama" is      a question which immediately crops      upfor consideration in view of the      recitals in  the F.I.R.  mentioning      in unambiguous   words  that   the      deceased  was   also  assaulted  by      banka which was wielded byRamanuj.      What is  the answer  of  the  above      question is the next question?"      The High  Court  then  went  on  to

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    observe:-      "Once it  has cometo the knowledge      ofthe  investigating officer  that      the   deceased    had   also   been      assaultedby   banka   which   was      allegedlyused   by  one of  the      appellants, therewas nooccasion      for him  not to  mention the use of      banka in  the inquest report unless      itcan  beattributed  to him  that      he, from  the verybeginning of the      investigation attempted  to  screen      out   orshield Ramanuj,   but,      according to the allegations in the      FIR was armed with‘banka’. 10.  The interpretation of  Section  174  of  the  Criminal Procedure Codesought to  be given  bythe  High  Court  is apparently contrary  tothe  law laid  down by this Court in Pedda Narayana& Ors.Vs. State  of  Andhra  Pradesh1975 (Suppl)S.C.R.84. Wemay usefully  reproducethe relevant observations which are as under:-      "Another point taken by the learned      Addl. Sessions  Judge wasthat  in      the inquest  report details  of the      overt actscommitted by the various      accused have  not been mentioned in      the relevant  column.  The learned      Judge in  fact has assumed without      any   legal    justification   that      because  the   details   were   not      mentioned in  the requisite  column      ofthe  inquest report,  therefore,      the presumption  will be  that  the      eye witnesses  didnot  mention the      overt  acts   in  their  statements      before thepolice.To begin with it      seems  to us  that   the learned      AdditionalSessionJudge’sapproach      islegally erroneous. A  statement      recorded by  the police  during the      investigation   is  notat   all      admissibleand theproper procedure      isto  confront the  witnesses with      the contradictions when  they  are      examinedand    they   ask    the      Investigating   Officer   regarding      those contradictions. Thisdoes not      appear tohave done  in this case.      Further   more,   proceedings   for      inquest under  Section 174 of  the      Code of  Criminal Procedure  have a      very limited scope."      Itwas then observed:-      "Aperusal of this provision would      clearly show that the object of the      proceeding underSection 174  is      merely  to  ascertain  whether   a      person has died  under  suspicious      circumstances or an unnatural death      and if  so what  is  theapparent      cause of  the death.  Thequestion      regarding the details as to how the      deceased  was   assaultedor   who      assaulted him   or   under   what      circumstance   he was   assaulted

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    appears to us to be foreign to the      ambit andscope of the proceedings      under   Section   174.   In   these      circumstance, therefore, neither in      practice  nor   in  lawwas   it      necessary for  thepoliceto  have      mentionedthesedetails in  the      inquest report."      Inview  of  thissettled position  of  law,  in our considered opinion,  the very  foundation of the judgment of the High  Courtis  rendered unsustainable.  The High  Court disbelieved theevidence of Mangal (PW 1) and Chhote Lal (PW 2) on  the ground  thattheir  evidenceis inconsistentwith the recitals  in the inquest panchanama. The observations of the High Court in this behalf are as under:-      "It may becontended that according      tothe  recitals in  the  FIR,  the      deceased  had  caught  hod of  the      banka and, therefore, there was no      injury caused  on the person of the      deceased which  could be attributed      tothe useof banka Banka,which is      a heavy  sharp cutting  weapon, was      inthe  hand of  Ramanuj and he has      attempted to  givea  blow on  the      person ofthe deceased.  Since the      intention was to commit the murder,      itcan  bereasonably inferred that      the    banka    was    used    with      considerable  force.   Ifin  that      situation it  was caught hold of by      the deceased,  serious wounds would      have been caused on the hand of the      deceased. Such  aninjuryhas  not      been noticed  by the  Investigating      Officer  on   theperson of  the      deceased which  also wouldindicate      that  Ramanuj   was  sought  to  be      screened  out  from  the  scene  of      occurrence."      Itis  this basicfoundation in  the impugned judgment which  has   resultedinto   erroneous   appreciation  of prosecution evidence  on record.  We may briefly set out the reasonsfor acquittal recorded in the impugned judgment, (1) the witnesses  are  close  relatives  of  Shanker  Lal; (2) DwarikaPrasadalthough shownas a  witness in  the charge sheet, was  given up atthe trial; (3) if Shanker Lal was to go to  Lucknow for  obtaining the stay order against the ‘No Confidence Motion’,  surely he would have carried some money with him  but in fact what was recovered from his person was only 70 paise;(4)  the  incident  took  place in  abusy locality but the prosecution did not examine any personfrom he said locality; (5) Shanker Lal was a history sheeter and involved in  many crimes;  thathe  hadmany  enemies in the village and,  therefore,  thepossibility  of assault  on ShankerLal  bysome  other persons  other than the accused cannot be ruledout. The High Court then observed:-      "A person  would go   to   Court      speciallythe   High  Court  after      having arranged  for the  money  to      meet the  expensesinvolved  in the      institution of  the    case.  Three      persons,namely,   Shanker   Lal      (deceased), his  brother Mangal (PW      1)and uncle Chhote Lal (PW 2) were

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    to go   either  to   Barabanki  or      Lucknow,  which   would  mean  that      apart  from   litigation  expenses,      travelling  and other  sundry      expenses for  three  people  should      have beenwith the  deceased.  But      the investigating officer recovered      only 70  paise from  the pocket  of      the  deceased  vide  recovery  memo      (Ex. Ka-12)  whichwas sealed in an      envelop (Ex.3)." 11.  The abovereferred findings in our considered view are totallyunsustainable for the followingreason:-      Itis  notand  cannot be disputedthat Shanker Lal met with ahomicidal death.  Dr. Ram  Mohan  (PW  4)  held the autopsyon  thedead  body of  Shanker Lal  andnoticed the following injuries:-      1.Lacerated wouldon the left side      ofneck  4 c.m.  x  1/1.4 c.m.  x      muscle  deep   2  c.m.  above  left      collar bone.      2.Gun shot would of entry3 c.m. x      3c.m.   x  chest  cavity   deep,      circular in  shapesurrounding skin      isblackened  and hairs are signed.      The wouldis situated  onthe left      side of  chest. 3 c.m. is above and      lateral tothe left nipple. Margins      are inverted.      3.Gun  short wound of entry on the      right side of  abdomen  2 c.m.  x      1/1.2 c.m. x abd. cavity deep  3      c.m. right to the umblcus Margins      are inverted  surroundingskin  is      blackened and hairs are signed.      4.Incised wound on  the point  of      right thumb  on the  pulp 1  c.m. x      0.4 c.m. xmuscle deep.      5.Gun  shot would of exit  on the      right side of lower  back (limber      area) 5 c.m. x 3 c.m. x abd. cavity      deep.  Margins  are  inverted.  The      wound is  corresponding with injury      No.3.      6.Contusion  on the rightscapular      region 1 c.m. x 1 c.m. in size.      7. Two  sub-cutaneous  swelling  1      c.m. x  1 c.m.  onthe left side of      chest 5  c.m. below  and lateral to      the  left nipple.  Some rounded      foreign  body  isfelt  under  the      skin.      The Medical  Officer opined that the causeof death was shock and  haemorrhage as a result of fire arm injuries. We, therefore, unhesitatingly conclude thatShankerLal metwith a homicidal death. 12.  Coming tothe culpabilityof the accused persons, the evidence of  two eye  witnesses, namely,  Mangal (PW  1) and Chhote Lal  (PW2) in our opinion is totally unblemished and can besafely accepted as  credible  one.  Mangal  is the brotherof  Shanker Lal.  He has statedthat onDecember 24, 1983, he  alongwith  Shanker lal and Chhote Lal (PW 2)left the house  at 7.30  a.m. and  went to  the house  of Dwarika Prasad (DW  1) to  discuss about the ‘No Confidence Motion’. The copy  of the  notice of ‘NoConfidence Motion’ was being

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carriedby  Shanker Lal.  Aftera briefhalt atthe house of DwarikaPrasad (DW 1), they left his house in order to go to Lucknowfor  taking  appropriate  legal proceeding  and  to obtain a  stay order.  When they  reached nearthe house of Dhanendra Jain, all the  four accused appearedon the scene of offence. A-1was armed with double barrel gun, A-2 and A- 3 werearmed with  katta and  A-4 was armed with banka. A-4 uttereda  few abusivewords and immediately thereafter A-1 fired at  Shanker Lal.A-2 and A-3 also  fired from  their katta causing  bullet injuries to Shanker Lal. A-4 assaulted with banka. Theincident took place at out 8.45a.m. and the First Information Report came to be lodged at Masauli police stationat  about 1.00p.m. The FIR lodged by Mangal (PW 1) in allmaterial particulars  corroborated his evidence. All necessary details  about the  assault includingthe role and weapon used  byeach accused persons has been referred to in the FIR.  Mangal (PW 1)then stated that his brother Shanker Lal died  on the  spot. The  witness  was  although  cross- examined at  agreat  length  but  here  is  absolutely  no material brought  out during the cross-examinedto discredit his testimony. We, therefore, see no hesitationin accepting the evidence  of Mangal (PW 1) as credible one. Chhote Lal (PW 2), the uncle  of ShankerLal again  corroborated the evidence of Mangal (PW 1) in all material particulars and he narrated the  entire story in the samesequence without any omission or  mistake. In  addition to  the  above  evidence, Chhote Lal  (PW2)  hasstated that he was carrying with him Rs. 1400/-  to Rs.  1500/- for court expenses. There issome inconsistency as regards who was carrying the said money but in ouropinionthe said inconsistency does notdemolish the substratum of  the prosecutioncase. It is also relevant to not that  during the  inquest panchanama,  a  notice  of ‘No Confidence Motion’  wasrecovered from the person of Shanker Lal. This  is an independent circumstance whichspeaks about the truthfulness  of the  prosecution case thatShankerLal, Mangal (PW  1) and  Chhote Lal(PW 2) then decided to go to the  Court   to obtain the  stay  order  against  the ‘No Confidence Motion’.  There is  no serious  challenge to the evidence of  Mangal (PW 1) and ChhoteLal (PW2) thatthey were going  along withShankerLal to Lucknow.The presence of both these witnesses,  therefore, cannot  be doubted. If this be so, in our opinion, the High Court had committed a seriouserror  in not appreciating the evidenceof these two eye witnesses  in a  proper perspective and had erroneously discarded   the   prosecution story  on   a   erroneous interpretation of  Section 174 Cr.P.C. We are, therefore, of the consideredview that  the judgmentof the High Court is totallyunsustainable and needsto be set aside. 13.  Consequentupon  conviction of  all  the  four  accused personsunder  Section 302/34  of the Indian Penal Code, the trial court  awarded a capital punishment to Abdul Ali (A-1) and imprisonment  for life  to A-2  to A-4 videits judgment and order  dated 31st  August, 1988  and made aReference to the High  Court.  The  High  Court,  however,  rejected the reference; allowed  thecriminal  appeals filed by thefour accusedpersons and acquittedeach one  of them  vide its order dated IstDecember, 1988.Presentappeal were filed in 1990 and  they are  being disposed of in April,1997. Having regard to  the passage of time,we do not thinkit proper to confirmthe death sentence awarded to Abdul Ali(A-1) by the IVth Addl. Session Judge. We reject thereference. We uphold the convictionof A-1to A-4under Section  302/34 of the Indian Penal  Code andSentence each of the accused persons to suffer imprisonment for life. 14.  For the  aforesaidconclusion,  the appealfiled by the

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State  of  U.P. is  allowed.  the  judgment  and  order  of acquittal dated December 1,  1988 passed  by the High Court are setaside and the judgment and order of conviction dated 31st August,  1988 passed by the trial court against accused A-1 toA-4 under   Section  302/34 of the Indian PenalCode are restored.  However,the  death sentence  awarded by the IVth Addl.  Session Judge  Barabanki to Abdul Ali  (A-1) is commuted to imprisonment of life. Capital Sentence Reference No. 3  of 1988 is rejected. A-1to A-4 who are on bail shall surrender to  their bailbonds  forthwith to  serve  out the sentences.