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CASE NO.: Appeal (crl.) 517 1992

PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: MUNDRIKA & ORS.

DATE OF JUDGMENT:       12/12/2000

BENCH: R.C.Lahoti, S.V.Patil

JUDGMENT:

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     J U D G M E N T

     R.C.  Lahoti, J.

     The  State  of Uttar Pradesh has filed this appeal  by special  leave  putting  in issue the judgment of  the  High Court  whereby Mundrika, Brindaban Mouria and Ram Asrey, the three  accused respondents have been acquitted setting aside the conviction of Mundrika under Section 302 & the other two under  Section 302/34, I.P.C.  Brindaban Mouria, the accused respondent No.2 had expired during the pendency of appeal in the  High Court.  Apparently it is a mistake, rather an  act of  carelessness to have impleaded him as respondent No.2 in the memo of special leave petition.

     The  charge against the three accused persons  related to the homicidal death of one Dharamdeo caused on 20.10.1982 at about noon in Village Raghunathpur, Police Station Harpur Budhat,  District  Gorakhpur.  Smt.  Kabutra, P.W.1, is  the mother  of the deceased Dharamdeo.  She had an  agricultural land  in village Raghunathpur wherein gram crop was sown  at the  time  of  the incident.  On  19.10.1982,  four  persons namely Ori, Lachhan, Ragghu and Musafir were seen up-rooting the  crop  in the field of Kabutra which was objected to  by her and her brother-in-law Shyam Lal.  On 20.10.82 again Ori and  Lachhan  were seen up-rooting the gram crop of  Kabutra and  also  ploughing into her field.  Kabutra and Shyam  Lal again  protested.  There was a scuffle.  Mundrika threatened that  the  entire family of Smt.  Kabutra would be  finished and he would see the matter being settled through the police station.

     Both  the parties appeared to have lodged reports with the  police station.  Shambhu Singh, P.W.5, with the help of a  few police constables reached at the site of the  dispute

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and  found Dharamdeo, the deceased, his uncle Shyam Lal, Ori and one another exchanging hot words and grappling with each other.   They were arrested under Section 151, Cr.P.C.   and taken  to  the police station in a jeep.  At or about  12.30 p.m.   an entry was made in the general diary of the  police station.   The  incident took place at a point of time  when the  persons,  including  Dharamdeo, brought to  the  police station  were  in  the process of being sent to  the  police lockup  from  outside the police station.  At that point  of time  Ram Asrey, the appellant, hit Dharamdeo with his hands from  behind aiming at the head of Dharamdeo, as a result of which  he  fell  down.   Accused  Brindaban  instigated  the accused  Mundrika  to  strangulate  Dharamdeo  by  his  neck whereupon Mundrika pressed the neck of Dharamdeo causing his instantaneous  death on the spot.  A crowd had collected  at the  place  of the incident.  Some people in the crowd  were shouting  that Dharamdeo had an attack of epilepsy and  some were  shouting  that  Dharamdeo was killed.   Gorakh  Singh, P.W.4,  the  Station  Officer  was taking  his  lunch  while Shambhu  Singh, P.W.5, Sub-Inspector was busy in the  office making  some entries in the record.  Both of them rushed out of  the  police  station and found Dharamdeo  lying  on  the ground.  Dr.  Ramesh Chandra, a nearby physician, was called who  examined Dharamdeo and declared him dead.   Information was  given  to  the  District   Magistrate  and  the  Senior Superintendent  of  Police in as much as Dharamdeo had  died while  he  was  in  police   custody.   Inquest  and   usual investigation  followed.   At  the  end  the  three  accused persons were charge sheeted and put up for trial.  The trial court  hold  the  accused Mundrika guilty of  offence  under Section 302 IPC.  The accused Ram Asrey and Brindaban Mouria were  found  guilty of an offence under Section 302/34  IPC. All the three were sentenced to imprisonment for life by the learned  Session Judge.  All the three appealed.  As already stated,  the  accused  Brindaban   Mouria  died  during  the pendency of the appeal and his appeal abated.  The remaining two  have been acquitted as in the opinion of the High Court the prosecution case was not proved to hilt.

     The  conviction  rests on the testimony of  three  eye witnesses  namely Smt.  Kabutra, P.W.1, Shiv Dass, P.W.2 and Bhullar  Prasad,  P.W.6.   The High Court has in  very  many details scrutinised the testimony of all the three witnesses and  found their statements conflicting with each other  and unworthy  of reliance.  As to Smt.  Kabutra, P.W.1, the High Court has found that she was not even present at the time of the  incident.   She  had heard rumours in  the  village  of Dharamdeo having died at the police station.  Whereafter she had  swung into action.  The High Court has also found  that Ram  Asrey, the appellant, was not even previously known  to Smt.   Kabutra and it was not satisfactorily explained as to how  his name found place in the statement of Smt.  Kabutra. There  was  a litigation going on in Revenue Courts  between Smt.  Kabutra and accused Brindaban Mouria.  The possibility of  the  latter having been falsely implicated could not  be ruled  out.  A written report of the incident was lodged  by Smt.   Kabutra at the police station but therein the  manner of  assault  resulting  into the death of Dharamdeo  is  not mentioned  and no satisfactory explanation was assigned  for this  material  omission  in the F.I.R.  As  to  Shiv  Dass, P.W.2,  the  High  Court has found that  his  statement  was recorded  belatedly  three  months  after the  date  of  the incident.   This unexplained gross delay in the recording of the  statement  of  a material eye witness throw  a  serious doubt  as  to whether he was really an eye witness  or  not.

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The  manner in which the deceased was assaulted and died was narrated  by  Shiv  Dass in a way which  was  materially  at divergence  with the narration of the incident given by Smt. Kabutra.   There  were material contradictions  between  his court   statement   and  the   statement  recorded  by   the investigating  officer  under Section 161 Cr.P.C..   In  the opinion of the High Court it was extremely doubtful, if not impossible,  to hold that he was an eye-witness.  From  the testimony  of Bhullar Prasad, P.W.6, a third version of  the incident  was spelt out.  He was one of the police personnel attached with the police station and it appeared that he was giving  a  cautious statement so as to save himself.   On  a critical  appreciation of the testimony available on record, the  High Court held __ the conclusion is irresistible that the  truth  has been attempted to be obliterated in  such  a manner  so  as to screen the real offender or  create  doubt about the persons put in the dock as accused and, therefore, challan  of  the  accused was an eye wash  for  the  general public.

     From  a  perusal of the judgment of the High Court  it appears that Dharamdeo, the deceased, who was apprehended by the  police and was in their custody died during the  course of  his being brought to the police station and being put up in  the lockup.  People of the village were agitated on  the death  of  Dharamdeo  whilst in police custody  and  so  the record  was  manipulated  by police people and  false  story cooked  up to hush up the incident.  The High Court has made a  strong observation in this regard and directed the record of the police station to be thoroughly examined by holding a departmental  enquiry  so  as to bring to book such  of  the police  personnel  who may be found guilty of misconduct  or negligence  or dereliction of duty resulting into the  death of Dharamdeo whilst he was in the custody of police.

     Having  heard the learned counsel for the parties  and having gone through the evidence available on record, we are of the opinion that no fault can be found with the reasoning assigned and the findings arrived at by the High Court.  The appeal  is, therefore, dismissed.  The judgment of the  High Court  acquitting the accused respondents is maintained.  We hope  that  departmental proceedings in accordance with  the observations  made  by  the High Court  were  initiated  and pursued to their logical end.