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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
MANOJ MISRA, SAMEER JAIN, JJ.
Banwari Lal And Anr. – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No.5769 of 2013
Decided on : 11-03-2022
Indian Penal Code, 1860 - Section 302 read with Section 34 – Appeal against Conviction – Offence of Murder - twin-motive -Deceased took a decision to transfer his land in favor of sons of the informant and, to arrange for the funds, to affect a transfer, had applied to the Bank - In night while deceased Ram Swaroop to protect his watermelon crop (watermelon), was sleeping in his field, at about 4.00 AM in the morning deceased's nephews appellant no.1 and appellant no.2 were noticed assaulting the deceased by PW-2 and PW-3 and when they were challenged, they threw body of deceased in a pit and ran away - It is alleged that body of the deceased was taken out from the pit, which had water, and injuries on neck, left ear and left knee of deceased were noticed - By alleging that appellants killed deceased - whether incident was witnessed in manner alleged by the prosecution or when body was discovered in morning, informant party was left guessing, or contriving a story, which caused the delay in reporting the incident; this delay in lodging report though may not be fatal to prosecution case, but it creates a doubt that puts us on guard to test the prosecution story on all material aspects more so, when one of two prosecution witnesses of fact during cross-examination did not support the prosecution story – Para 30.
Finding of the Court:
If rigor mortis all over body was noticed possibility of death having occurred about midnight cannot be ruled out, which is also in sync with PW-6's statement that there can be a variation of three hours in his estimate of 4.00 AM. But, when we notice stomach content, i.e., 100 gm of pasty food material at the time of autopsy, keeping in mind that in villages people have early dinner, it throws a possibility of incident having occurred much earlier than what has been suggested by prosecution.
Result: Ordered accordingly.
JUDGMENT :
1. We have heard Sri Krishna Gopal, learned counsel for the appellants and Sri J.K.Upadhyay, learned AGA for the State and have perused the record.
2. This appeal has been filed against the judgment and order of conviction and punishment, dated 18.11.2013 and 19.11.2013, respectively, passed by Additional District and Sessions Judge (Court No.6), Bareilly, in Sessions Trial No. 885 of 2011, convicting the appellants under Section 302 read with Section 34 IPC and sentencing them to imprisonment for life with fine of Rs.10,000/-each and a default sentence of two months.
INTRODUCTORY FACTS
3. The prosecution case is based on a written report (Ext.Ka-1) submitted by PW-1 at Police Station Kyolaria, District Bareilly on 5.5.2011, at about 10.30 AM, of which, Chik Report (Ext.Ka-2) and G.D.Entry No.14 (Ext.Ka-3) was prepared by PW-4. The allegation in the report is that the deceased Ram Swaroop had no issues; his wife had also died and after the death of his wife, the deceased was staying with the informant. The deceased had 18 Bighas of land. 15 days before the incident, the nephews of the deceased had dismantled the "Med" (field demarcation boundary) of the field of the deceased, which resulted in an altercation of the deceased with his nephews. On that ground, the deceased took a decision to transfer his land in favour of sons of the informant and, to arrange for the funds, to effect a transfer, had applied to the Bank. In the night of 4/5.5.2011 while the deceased Ram Swaroop to protect his watermelon crop (watermelon), was sleeping in his field, at about 4.00 AM in the morning of 5.5.2011, the deceased's nephews, namely, Banwari Lal (the appellant no.1) and Ram Naresh (appellant no.2), were noticed assaulting the deceased by PW-2 and PW-3 and when they were challenged, they threw the body of the deceased in a pit and ran away. It is alleged that body of the deceased was taken out from the pit, which had water, and injuries on neck, left ear and left knee of the deceased were noticed. By alleging that the appellants (i.e.,nephews of the deceased) have killed the deceased, the first information report was lodged.
4. The inquest was completed at the spot by 12.30 hours on 5.5.2011, of which, inquest report (Ext.Ka-4) was prepared by Ashutosh Kumar (PW-5). Autopsy was conducted on 5.5.2011 by PW-6 at about 4.45 PM. The autopsy report (Ext.Ka-12) notices:-A thin built body smeared over by mud with rigor mortis fully developed all over body; eyes half open; fist clenched, nails blue, face deeply congested; beard and moustaches smeared with blood that had trickled from nose to left ear back; and blood in nose and ear present. The external ante mortem injuries noticed were as follows:
(ii) Multiple (2) abrasion with contusion on left side front and side of neck in an area of 8 cm x 6 cm with subcutaneous ecchymosis over larynx plus trachea individual size of wound varying from 0.8 cm x 0.2 cm to 1.8cm x 1cm subject over wind pipe and voice box.
(iii) Multiple (3) abrasion back of left elbow joint 4.5cm x.02cm.
(iv) Multiple abrasion on left knee back of joint 0.5 cmx 1.5 cmx1.2cm.
(v) Abraded contusion on left knee joint 5cmx3cm.
(vi) Abraded contusion left leg, 4cm below knee of size 6cmx4cm.
The internal examination revealed larynx fractured; Hyoid bone fractured; extensive ecchymosis and bleeding in different layer of neck muscles; both lungs congested. The stomach contained 100gm of pasty food. Small intestine had semi digested food with gases; and large intestine had faecal matter and gases.
Cause of death, as per the report, was on account of asphyxia as a result of ante mortem throat strangulation.
Note : Autopsy report has not disclosed the estimated time of death.
5. After investigation PW-5 submitted charge sheet
Prosecution evidence does not inspire our confidence to enable us to hold that the prosecution has been able to prove the charges beyond reasonable doubt.
The main legal point established in the judgment is the importance of reliable and convincing evidence in proving the guilt of the accused beyond reasonable doubt.
The court emphasized the prosecution's burden to prove its case beyond reasonable doubt, leading to the acquittal of the accused due to substantial doubts regarding the credibility of witness testimo....
The lack of legal evidence and secondary hypothesis in the prosecution evidence led to the acquittal of the accused.
The reliability of eyewitness accounts and medical evidence in cases of direct evidence, and the diminished significance of motive in such cases.
Point of Law : The appellant shall be released from jail forthwith, unless wanted in any other case, subject to compliance of the provisions of Section 437A Cr.P.C. to the satisfaction of the trial c....
Point of Law : While appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, may not prompt the court to reject the evide....
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