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Court No. - 46
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 7320 of 2006
Petitioner :- Rishi Pal
Respondent :- State Of U.P.
Petitioner Counsel :- Prem Prakash,Km. Akanksha Yadav
Respondent Counsel :- Govt. Advocate
ALONG WITH
1.Criminal Appeal No. 6537 of 2006
Harnandan Vs. State.
AND
2.Criminal Appeal No. 7733 of 2006
Karu alias Surendra Vs. State.
Hon'ble Amar Saran, J
Hon'ble N.A. Moonis, J
(Delivered by Hon'ble Amar Saran, J)
These criminal appeals arise out of a judgement and
order dated 17.10.2006, passed by the Special
Judge (E.C. Act)/Additional Session Judge, Badaun
in S.T. No. 962 of 1996, State Vs.Rishipal and
others, convicting and sentencing the appellants
Rishi Pal , Karu alias Surendra and Harnandan to
undergo three months RI under Section 147 IPC. The
appellants Rishi Pal and Karu alias Surendra have
also been convicted to six months RI under Section
Neutral Citation No. - 2011:AHC:29928-DB
148 IPC. The three appellants Rishi Pal, Karu alias
Surendra and Harnandan have further been
convicted to imprisonment for life under Section 302
read with section 149 IPC, together with a fine of Rs.
5000 each. In default of payment of fine they have
further to undergo three months imprisonment. All the
sentences were to run concurrently.
When the case was called out in the revised list, as
the appellants counsel Sri Ratnesh Nandan Singh,
who represented the appellant Karu alias Surendra in
Criminal Appeal No. 7733 of 2006 and appellant
Harnandan in Criminal Appeal No. 6537 of 2006, and
Sri Prem Prakash Yadav and Km. Akansha who
represented the appellant Rishi Pal in Criminal
Appeal no. 7320 of 2006, chose not to appear, hence
this Court proceeded to hear the learned AGA and to
peruse the judgement and record of the trial court
and to decide the appeal in terms of the directions
given in the case of Bani Singh v. State of U.P., AIR
1996 SC 2439.
The prosecution case as set out in the FIR, lodged by
the informant Gajveer on 27.10.1993 at 10.10 P.M at
Police Station Binawar, district Budaun was that he
along with his brother Naresh Pal had gone to Kishni
Jatav's house, where they called out to Kishni's wife
to come to their field the next morning for harvesting
their paddy. At that time, the appellant Rishi Pal
carrying a 'Gandasa' and the accused Munendra who
was also armed with a 'Gandasa,' Guddu, and Karu,
who were armed with knives and Harnandan who
was armed with a Lathi emerged at that spot and
caught hold of Naresh Pal and took him inside
Kishni's house. On the cry of the informant Gajveer,
Phoolwati the wife of Kishni came out of the house in
fear and went away. On the cries of this witness,
Satendra and Bhalrey and others arrived at the spot and saw
the appellants and coaccused in the light of torches assaulting
the deceased with their respective weapons. On the alarm, the
assailants came out of
the house and ran away towards the south of the
village. Munendra absconded and Guddu was
murdered during the trial, hence the aforesaid two
persons are not parties in these connected appeals.
The prosecution in support of its case has examined
the informant Gajveer as PW1 and Satendra as PW
2. The witness Bhalrey was not examined. Apart from
these two eye witnesses, the prosecution examined
Dr. V.K. Jadaun as PW3, who conducted the post
mortem on the body of the deceased on 28.10.1993
at 3.00 P.M at District Hospital, Budaun. PW4 HC
Krishna Gautam was also examined to prove the
check FIR and GD entries etc. PW5 D.K. Baliyan,
S.O., P.S. Binawar was the second Investigating
Officer, who investigated the case after transfer of
the earlier Investigating Officer, the S.O of police
station Binawar, namely Sri Indrajeet Singh. The
earlier Investigating Officer had also conducted the
inquest on the body of the deceased Naresh Pal and
prepared the relevant papers which are in his hand
writing.
One witness DW1 Smt.Phoolwati alias Phulwa
widow of Kishni Jatav has appeared as a witness in
defence. The plea of the accused was of denial. It
was further suggested by the defence that when the
deceased Naresh Pal did not return home in the
night, then his family members went to search for him
and found his body lying in the house in some other
circumstances.
The informant Gajveer PW1, brother of the
deceased substantially affirmed his FIR in the court
that he had gone along with the deceased to Kishni 's
house at about 7.00 P.M on the date in question for
calling labourers for harvesting their paddy and in this
connection they had called Smt. Phoolwati alias
Phulwa, the wife of late Sri Kishni. At that time, the
appellants Rishi Pal and Munendra, who were armed
with 'Gandasas,' Guddu and Karu alias Surendra
who were armed with knives and Harnandan who
was armed with a lathi came out of Ved Raj's house
and they caught hold of the deceased, who was
standing outside the door of Kishni's house. They
cried out that he should be murdered. Then they
caught hold of Naresh Pal and took him inside
Kishni's house. At that time, Smt. Phulwa ran away
from the house. On his alarm, Satendra and Bhalrey
reached there carrying torches. They entered 2 or 3
paces into the house from where they saw the five
assailants attacking the deceased Naresh Pal with
Gandasa and knives. He was lying on the floor.
When the informant raised further alarm, then the
accused bolted from the house from the southern
door by which they had entered the house. Out of
fear, the witness did not intervene in the incident or
give any chase to the accused. The deceased was
lying dead inside the house as a result of his injuries.
Gajveer dictated the report to Shiv Kumar Sharma of
Binawar and he handed over the same to the H.C. at
P.S. Binawar. The appellant Rishi Pal bore enmity
against Naresh Pal Singh because Rishi Pal would
often let loose his animals causing damage to the
crops of Naresh Pal in his field. They had also beaten
Naresh Pal on one or two earlier occasions.
The version of Satendra PW2 was that in the
evening at about 7.00 P.M on the date of incident,
when he was returning from his field carrying a torch,
he met Mallo who also reached the spot along with
him. He saw Gajveer standing at the door of Kishni's
house. When they flashed their torches, he saw the
five assailants attacking the deceased Naresh Pal
Singh and Naresh Pal was lying on the floor in
Kishni's house.
PW3 Dr. V.K. Jadaun who conducted the post
mortem on the body of the deceased Naresh Pal on
31.10.93 found the following antemortem injuries:
1.Incised wound 16 cm x 4 cm x bone deep in
front of neck. Muscles, skin, arteries, veins,
nerves, trachea, oesophagus cut above adam's
protuberance
2.Stabbed wound left side of thyroid 6 cm x cmx
3 cm x cavity deep 15 cm below left nipple at 6'
O clock position Intestines had come out which
were punctured at places. The spleen was
punctured or cut.
3.Stabbed wound 1 cm x 2 cm x cavity deep on
right side of abdomen, above the Pelvic bone.
4.Incised wound 2 cm x 1 cm x muscle deep
inside on left eye medial angle.
5.Stabbed wound 1 cm x .5 cm x cavity deep on
middle of abdomen 8 cm above umblicus at 12
'o clock position.
6.Incised ( cut) 8 cm x 6 cm x muscle deep, with
scrotum and penis separated from its base.
7.Incised wound 10 cm x 4 cm x bone deep on
left side neck. Muscle arteries cut, all cervical
vertebrae cut.
According to the doctor rigor mortis had passed
of from the upper limb which was present in the
lower limbs. There was post mortem staining
on dependent parts.
The deceased could have died on 27.10.1993 at
about 10.00 PM. On examining the stomach
condition, the doctor opined that the deceased could
have consumed food 2 or 3 hours before his death.
The cause of death was due to antemortem injuries.
DW1 Smt. Phoolwati alias Phulwa who was
examined in defence has stated that the deceased
Naresh Pal Singh had come to her house in the night
in question and was lying with her on the same cot at
the time of incident. At that time two persons jumped
over her boundary wall, crying out that he was a
witness in Mahipal's murder case and that he would
not abstain from giving evidence in the case, hence
they attacked Naresh Pal with sharp edged weapons.
The said accused persons also gave kicks and fist
blows to her, because of which her bangles were
broken. Finding an opportunity, she ran away from
her house. The deceased was a witness in the
murder case of Mahipal in which the persons
belonging to village Sikroli were threatening him not
to give evidence. She further stated that the
appellants Rishi Pal, Harnandan and Karu alias
Surendra were not involved in the murder of Naresh
Pal. She had even filed an affidavit to this effect
before the Chief Judicial Magistrate. She was the
wife of Kishni Jatav, who had died and after his
death, she had developed illicit relations with the
deceased Naresh Pal. She admits in her cross
examination by the State that she had 10 or 12
bighas land, which was being looked after by her
husband's elder brothers (i.e. 'jeth and jithau') who
used to also bear her expenses. They had objected
to Naresh Pal's visits to her place. There is also a
suggestion of the defence that the said elder brothers
might have murdered the deceased because of his
illicit relations with Phulwa.
The crucial question which arises in this case is
which of the two versions, the one set out by the
prosecution or the one set out by DW1 Smt.
Phoolwati alias Phulwa is more worthy of credence.
As witnesses may tell lies, but circumstances tell the
truth, we need to analyze the three significant
circumstances which help us resolve this question.
One, the most important circumstance is that an
amputated penis of the deceased was lying in the
room of DW1 's house. This was noted in the site
plan as also in the inquest report. PW 3 Dr. V.K.
Jadaun had also narrated that the penis and scrotum
had been cut.
Two, some broken piece of bangles were lying near
the blood of the deceased which had spilt in the
room, and are marked as 'X' in the site plan.
Three, the deceased was not done to death out side
Kishni's house at point 'B' where he was
apprehended by the assailants, but he was allegedly
dragged inside and done to death at point 'X' which
was 15 paces from the door of the house of the
courtyard of Kishni Jatav where the witnesses were
standing.
The allegations mentioned in the examination in chief
of PW 1 Gajbir that appellant Rishi Pal's animals
used to damage the crops of the deceased Naresh or
that they had earlier beaten Naresh would hardly
provide any motive for Rishipal and his companions
to commit his murder, although it could provide a
reason for the false implication of the appellants.
Even the motive belatedly suggested in the cross
examination of Gajbir that the deceased was
murdered because he was a witness in the murder
case of Mahipal, would not give rise to the factual
situation that we notice in this crime, and in our view
the crime would never have been committed in the
manner alleged. We find that the amputated piece of
penis was lying inside Phoolwati's room in the house.
Such crimes usually have sexual overtones, or
perhaps they could have been committed by her
brothersinlaw as has been suggested by the
defence, who may have felt resentful of the
deceased's intimacy with Phoolwati after her
husband Kishni's death, for reasons of family
dishonour or a possible future threat to their joint
family property, as Phoolwati admitted that 10 or 12
bighas had fallen to her share. Even though the
defence witness Smt. Phoolwati alias Phulwa has
denied that she developed illicit relations with any
other person after Naresh's death, the possibility of
her having other suitors who may have nurtured
some sexual jealousy cannot be ruled out.
Incidentally the murder case of Mahipal had resulted
in acquittal because the parties had compromised
their dispute.
The second circumstance, viz. the presence of
broken bangles at the spot near the dead body and
the amputated penis and blood is more consistent
with the explanation offered by Smt. Phoolwati alias
Phulwa who stated that the assailants had assaulted
her also after they had arrived in her room, when the
appellant was lying with her on her bed and in the
process her bangles were broken which were lying at
the spot. The explanation of the witnesses as to the
presence of broken bangles, which PW 1 Gajbeer
denies having noticed and PW2 Satendra initially
denies seeing the broken bangles, but later explains
that the wife of Naresh Pal and his mother had
broken their bangles when they were crying and
lamenting near the dead body, seems less
acceptable than Phulwa's version as to how the
broken bangles were found at that spot.
The third circumstance of the deceased not having
been done to death at the door of Kishni's house
where he was apprehended by the assailants, but his
having been dragged 15 paces inside the house, into
the room which possibly belonged to Phulwa is
inexplicable on the prosecution version. According to
PW1 Gajbir, the appellant Rishi Pal had been given
Gandasa blows, at the door of the house of Smt.
Phoolwati alias Phulwa which had caused
instantaneous bleeding from the the neck, yet no
blood was found at the door of the house where the
first attack was initially made. Blood was only found
in the inner room where Phulwa used to reside.
If the assailants had emerged from Ved Raj's house
and two of the assailants Surendra alias Karu and
Guddu were sons of Ved Raj, they could either have
caught hold of the deceased out side the house of
Phoowati and Kishni, and murdered him at that very
point, or they could have dragged him to Ved Raj's
house which has been shown in the site plan and
was close by. It defies reason why the assailants on
apprehending the deceased outside Kishni's house
would take him inside Kishni's house for the purpose
of committing his murder.
We therefore think that the version given by Phulwa
that the deceased was done to death in that very
room where he was lying with her on her cot, when
the assailants came and attacked him and caused
him the injuries which were present on his body
(including his amputated private organs) and slapped
her and broke her bangles which were found lying at
the spot appears to be more probable, than the
version set out by the prosecution that the deceased
was apprehended at the door of the courtyard of
Kishni's house, and dragged inside the room and
murdered there.
The Sessions Judge without analysing the
significance of these circumstances for deciding
whether the prosecution version or the defence
version given out by Phulwa appears more probable,
has blithely chosen to disbelieve the defence version
by simply declaring Smt. Phoowati to be a woman of
loose character. She may also not have spoken out
the whole truth, as when she mentioned that the two
assailants (who were not the named accused of this
case) had jumped over her boundary wall and
attacked her and cried out that Naresh should be
murdered because he was a pairokar and witness in
the murder case of Mahipal. Likewise where she
states that the deceased used to lie with her, rather
than at his home because he had a fear for his life
may not appear believable. She may have stated
these facts possibly to save her brothersinlaw (jeth
and jethau) who might have been involved in this
incident, as she may have not wanted to incur their
wrath after being widowed from her husband, as she
was dependent on them, or for any other reason. It is
well settled that there can be no whole sale rejection
of a witness' testimony because of some embroidery
or embellishments in his testimony, although the
same needs to be critically appraised.
A Division Bench of the Delhi High Court in Shyam
Sunder v State, 1997 Cri.L.J 35 has placed reliance
on a decision of the Supreme Court in State of
Maharashtra v. Madhukar Narayan Mardikar, AIR
1991 SC 207 for the proposition that even if a woman
is considered a person of easy virtue, her testimony
cannot be excluded on that ground alone. At best it
needs to be evaluated with caution. In this context
paragraphs 13 and 14 of the law report reads:
“13. Learned counsel for the appellant while
animadverting on the above testimony of PW 5 Smt.
Om Wati has contended that she is a lady of easy
virtue. Thus it would be highly unsafe to place
reliance on her statement. We are sorry we are
unable to agree with the contention of the learned
counsel. We feel that it cannot be laid down as a rule
that in each case if a particular witness is found to be
a bad character in that eventuality her testimony is
liable to be flung to the winds. To our mind, it will be
a very risky proposition of law. We feel that the Court
while dealing with the testimony of a witness who is
not of good character is required simply to examine
the statement of such a witness with great care and
caution. Her statement in such a case would be
subjected to a greater scrutiny. If the Court even then
comes to the conclusion that it would be safe to base
the conviction on the said testimony, there is no such
bar which would come in the way of the Court.
14.The above view finds support from the view
which the Hon'ble Supreme Court took in a
case reported as (1990) 4 JT (SC) 169 : (AIR
1991 SC 207), State of Maharashtra v.
Madhukar Narayan Mardikar. In the said case
the complainant was a lady of loose and
licentious character. However, while dealing
with the evidence of the said lady it was opined
by their Lordships of the Supreme Court
"....Even a woman of easy virtue is entitled to
privacy and no one can invade her privacy as
and when he likes. So also it is not open to any
and every person to violate her person as and
when he wishes. She is entitled to protect her
person if there is an attempt to violate it against
her wish. She is equally entitled to the
protection of law. Therefore, merely because
she is a woman of easy virtue, her evidence
cannot be thrown overboard. At the most the
officer called upon to evaluate her evidence
would be required to administer caution unto
himself before accepting her evidence."
It would further be useful to reproduce sections 146
and 148 of the Evidence Act here:
146: Questions lawful in crossexamination When a
witness is crossexamined, he may, in addition to the
questions hereinbefore referred to, be asked any
questions which tend
1.to test his veracity,
2.to discover who he is and what is his position in
life, or
3.to shake his credit, by injuring his character,
although the answer to such questions might
tend directly or indirectly to criminate him or
might expose or tend directly or indirectly to
expose him to a penalty or forfeiture:
Provided that in a prosecution for rape or
attempt to commit rape, it shall not be
permissible to put questions in the cross
examination of the prosecutrix as to her
general immoral character.
148: Court to decide when question shall be asked
and when witness compelled to answer: If any such
question relates to a matter not relevant to the suit or
proceeding, except in so far as it affects the credit of
the witness by injuring his character, the Court shall
decide whether or not the witness shall be compelled
to answer it, and may, if it thinks fit, warn the witness
that he is not obliged to answer it. In exercising its
discretion, the Court shall have regard to the
following considerations:
1.Such questions are proper if they are of such a
nature that the truth of the imputation conveyed
by them would seriously affect the opinion of
the Court as to the credibility of the witness on
the matter to which he testifies;
2.Such questions are improper if the imputation
which they convey relates to matters so remote
in time, or of such a character, that the truth of
the imputation would not affect, or would affect
in a slight degree, the opinion of the Court as to
the credibility of the witness on the matter to
which he testifies;
3.Such questions are improper if there is a great
disproportion between the importance of the
imputation made against the witness's
character and the importance of his evidence;
4.The Court may, if it sees fit, draw, from the
witness's refusal to answer, the inference that
the answer if given would be unfavourable”
It may be noted that section 146(3) of the Evidence
Act permits putting questions to a witness which may
shake his credit, by injuring his character, but section
148 clarifies that if the question only injures the
character, but is otherwise irrelevant to the suit or
proceeding, the Court may permit the witness not to
answer it. In exercising this discretion the Court may
consider such questions proper only if the truth of the
imputation could seriously affect the credibility of the
witness, but they are improper if the imputations are
so remote or of such a character, that they would not
affect the Court's opinion as to the credibility of the
witness. Questions are also improper if there is
disproportion between the imputation against the
witness' character and the importance of the
evidence.
In the present case it may be noted that no
suggestion has been given to this witness that she is
a woman of easy virtue. She also denies having
developed illicit relations with any other person after
Naresh's death. It has only been suggested that she
has deposed in favour of the accused in order to
save them, without substantiating this allegation in
any manner.
Indeed if Smt. Phoolwati, who belonged to the
Scheduled caste had developed illicit relations with
the deceased, then it was more probable that any
assailants who may have been unhappy with the
alliance may have attacked him at the spot where his
dead body was found in her room, resulting in the
circumstances indicated above. Her so called “loose
character” would therefore provide more reason to
believe her testimony than to disbelieve it.
In this connection section 7 of the Evidence Act may
be extracted:
7. Facts which are the occasion, cause or effect of
facts in issue Facts which are the occasion, cause,
or effect, immediate or otherwise, of relevant facts, or
facts in issue, or which constitute the state of things
under which they happened, or which afforded an
opportunity for their occurrence or transaction, are
relevant”.
Thus Section 7 of the Evidence Act makes relevant,
facts which are the occasion or which afford an
opportunity for the occurrence of the transaction. The
visits of the deceased to Phulwa's house in the
background of what the learned Sessions Judge has
decried as her 'looseness of character' would thus
provide the occasion for the crime, because they
would afford an opportunity to the assailants to
commit the crime in her house, if she was
entertaining a visitor whose presence they resented,
and make the testimony of this witness that much
more relevant and credible for this reason.
We also find that Bhurey father of Mahipal and not
Satendra or Bhalrey, who were the other witnesses
of the incident had gone along with Gajbir when he
went to the police station to lodge the report. At that
time, Bhurey could easily have prevailed over Gajbir
to nominate Rishipal, Guddu and others who were
earlier nominated by him in the murder case of his
son Mahipal.
Furthermore only a single other witness Satendra
PW2 who is the cousin brother of deceased Naresh
Pal has supported the version of Gajbir. Even
Bhalrey whose house adjoins Kishni's house and
who is also said to have arrived at the spot along with
Satendra has not come forward to give testimony in
support of the prosecution case. It is thus clear that
no witnesses of the neighbourhood was prepared to
support this prosecution story.
Some other discrepancies, which assume
significance in the light of the crucial circumstances
described above may now also be considered. It was
put to the Investigating Officer that in his 161 Cr.P.C
statement Satendra had deposed that he was going
to ease himself and not that he was returning to the
village. In his 161 Cr.P.C statement, this witness had
stated that Gajbir had told him that his brother had
been murdered by Rishi Pal after dragging him into
the house of some Jatav. Satendra had told the
Investigating Officer that he would produce his torch
at a later stage as he was going for the autopsy of
the deceased, but the torch was not produced.
Another major failing in this case is that neither the
first Investigating Officer Indrajeet Singh nor the final
Investigating Officer D.K. Baliyan PW5 tried to
record the 161 statement of Smt. Phoolwati @
Phulwa whom we have shown to be a crucial witness
in whose room the incident had taken place. Their
explanation that they had made attempts to contact
Phulwa but she could not be found seems
unacceptable.
For all the aforesaid reasons, we are of the opinion
that the prosecution has not been able to establish its
case against the appellants. They are adjudged not
guilty of the offence for which they have been
charged and are acquitted. The appeal accordingly
succeeds and is allowed.
The appellant Harnandan, who is on bail, need not
surrender. His bail bonds are cancelled and sureties
discharged. The other appellants Rishipal and Karu
alias Surendra who are in jail shall be released
forthwith unless they are wanted in connection with
any other case.
Order Date :- 3.3.2011
sfa/
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