Allowed

Chhatish Singh v. State

Allahabad HC7 Sept 2021CRLA/455/1988

Case brief

AI extract

What is this about?

The Supreme Court allowed criminal appeals by two appellants convicted of murder under Section 302 IPC. The court found substantial contradictions between two interested ocular witnesses, absence of a proven light source to identify the accused, and discrepancies regarding the assault's duration, leading to acquittal based on reasonable doubt.

What did the court decide?

Appeals allowed; appellants acquitted of charges; bail bonds cancelled and sureties discharged.

Chhatish Singh Vs State — Murder and Culpable Homicide | Allahabad HC (2021)

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Reserved

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Court No. - 48

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Case :- CRIMINAL APPEAL No. - 455 of 1988 Appellant :- Chhatish Singh Respondent :- State Counsel for Appellant :- V.P.Goel,Anupam Shyam Dwivedi,Shivam Agarwal A.C.,Sudhir Dixit,Utkarsh Dixit Counsel for Respondent :- A.G.A.

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connect with

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Case :- CRIMINAL APPEAL No. - 578 of 1988 Appellant :- Janak Singh Respondent :- State Of U.P . Counsel for Appellant :- Prabodh Gaur,Shivam Agarwal A/C Counsel for Respondent :- A.G.A

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Hon'ble Anjani Kumar Mishra,J. Hon'ble Deepak Verma,J.

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Heard Shri Sudhir Dixit, learned counsel for the appellant in Criminal Appeal No.455 of 1988 and Shri Shivam Agarwal, Amicus Curiae for the appellant- Janak Singh in Criminal Appeal No.578 of 1988.

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Both the appeals arise out of the same Sessions Trial No.180 of 1996, which pertains to case Crime No.11 of 1986 under Section 302 IPC, Police Station Sarai Lakansi, District Azamgarh. The first information report was lodged at the concerned police station on 18.01.1986 at 4.30 a.m.

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The appellants in both the appeals have been convicted under Section 302/34 IPC and sentenced to life imprisonment.

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A third appeal being Appeal No. 397 of 1986 had also been filed. However, Nandu Yadav, the sole appellant therein died during the pendency of the appeal. Accordingly, the said appeal was ordered to abate.

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The first information report was lodged by Pardeshi alleging therein that his father Basant had deposed on behalf of Dalsingar Yadav in a case between Jamuna Singh and Dalsingar Yadav and on account of such enmity, Basant, who was sleeping in his mandai was assaulted by three accused, namely, Nandu Yadav, Chhatish Singh and Janak Singh. On his cries, the first informant and two others arrived at the scene of occurrence and they saw that Bansant was being held by Nandu

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Yadav and Chhatish Singh while Janak Singh was assaulting him with a knife. As a result, Bansant Singh died on the spot while the assailants ran away.

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The police after investigation submitted a charge sheet under Section 302/34 IPC against the accused.

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During trial, four witnesses were examined by the prosecution. PW-1 Pardeshi is the first informant and the son of the deceased. PW-2, Jairam is also the son of the deceased, Bansant. These are the only two witnesses of the fact.

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PW-3, Shiv Pujan, Constable No.818 has deposed in place of Surendra Bahadur Singh (Sub-Inspector), the Investigating Officer, who was stated to be dead. He has identified the signatures of the Investigating Officer on the various papers prepared in this case.

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PW-4, Dr. Abdul Haleem is the doctor, who conducted the postmortem and has proved the post mortem report.

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The statements of three accused, namely, Janak Singh, Chhatish Singh and Nandu Yadav was recorded under Section 313 Cr.P.C., wherein they denied the charge against them and stated that the case was a result of enmity.

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Subsequently, by judgement and order dated 18.02.1988, the three accused were found guilty and were convicted as stated above.

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The contention of Shri Sudhir Dixit as also Shri Shivam Agarwal, amicus curiae, are on parallel lines. They have submitted that only two witnesses of fact have been produced by the prosecution. Both of them are highly interested, being the sons of the deceased. No other independent witness was produced despite two persons having been mentioned in the first information report, who are alleged to have seen the occurrence. They have also submitted that there are a lot of contradictions in the oral testimony of the aforesaid two prosecution witnesses in material particulars. The prosecution case therefore, is extremely doubtful.

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The first information report only stated that Nandu Yadav and Chhatish Singh held the deceased while Janak Singh assaulted him with knife. However, during their testimony an improvement was introduced to the effect that both PW-1 and PW-2 were also assaulted by the accused, which fact did not find mention in the first information report.

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In any case, two independent eye witnesses disclosed in the first information report, namely, Sudarshan and Pakhandi have not been produced. However, they are also the relatives of the first informant, Pakhandi being uncle of the first informant while Sudarshan is his maternal first cousin.

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Elaborating further, it has been submitted that there are material contradictions in the oral testimonies of PW-1 and PW2. PW-1 has stated that only three eye witnesses were present on the scene, namely, himself, Sudarshan and Pakhandi. There was no mention of the presence of his brother PW-2, Jairam. PW-2, Jairam also claims to be an eye witness, but is not shown as one in the FIR. He has deposed that he, Sudarshan and Pakhandi alone witnessed the assault upon Basant by the accused. Thus, both the brothers have denied the presence of the other brother on the spot at the time of incident.

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The next submission is that the source of light, namely, lantern alleged to have been burning in the Mandai, has not been produced or proved during trial. The other source of light, namely, a bulb stated to be burning on a nearby tube-well has has also not proved. The bulb was not taken into custody by the Police. In any case, tube-well of Kalika where this light bulb is alleged to be burning is in fact, situated at a distance of 4 furlongs from the site of occurrence, namely, Mandai and north of it. The northern portion of the mandai is a blank wall as is clear from the site plan. Therefore, this source of light would not make anything visible as this source of light is beyond a wall.

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It is next submitted that the first information report has been ante timed and that in fact it was lodged at about 8 to 9 A.M. and not 4.20 A.M. The time of occurrence is also belied by the postmortem report, which shows the presence of semi digested rice and meat, in the deceased's stomach.

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It is next submitted that the prosecution case of repeated assault on the deceased is belied by the postmortem report, which shows the presence of only two injuries on his person. It has also been submitted, relying upon the cross-examination of a Doctor, that these injuries could have been received, in case, the deceased fell down over a hard surface like a brick or pointed stone.

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The next submission is that the motive given for the alleged crime is highly tenuous. The deceased is stated to have deposed in favour Dalsingar Singh in a case with Jamuna Singh. Janak Singh, who is alleged to have knifed the deceased is the servant of Jamuna Singh.

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It is lastly submitted that no one saw the incident and that the testimony of the two ocular witnesses is highly unreliable on account of the material contradictions, therein. The conviction of the appellants is therefore, not sustainable.

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Learned AGA has submitted that a very prompt FIR has been lodged. The alleged contradictions in the testimony of two ocular witnesses are not such, which would render their testimony, unreliable. Injury no.2 mentioned in the postmortem report is clearly one caused by a knife. Nandu Yadav and Chhatish Singh, are stated to have been armed with lathi and danda while Janak Singh was armed with a knife. The injuries upon the person of the deceased are from such weapons.

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In the light of the arguments raised, we have gone through the entire evidence on record.

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PW-1 in his statement has stated that the deceased had deposed on behalf of Dalsingar Yadav in a case regarding a land dispute against Jamuna Singh. Later on, this case was decided on the basis of a compromise but both Dalsingar and Jamuna Singh harboured enmity towards the deceased.

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The second motive disclosed in his statement is that the deceased had supported one Bankey Singh in the election for Pradhan, in which, Subhash Singh son of Jamuna Singh was also a candidate.

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At the time of occurrence, his father was asleep in the mandai. The witness was sleeping at his house. On hearing, the crises of his father, he reached the spot and saw Nandu Yadav and Chhatish holding his father Basant by his hands and Janak Singh stabbed him with a knife. A bulb was lighted in the house of Chhangur, which is adjacent to the mandai, where the deceased was sleeping and that the incident could be seen clearly on account of two sources of light, the other being a lantern burning in the mandai.

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He has stated in his examination-in-chief that his father died within two minutes of the assault. The report was written on his dictation by Jairam in the house of the witness after the assailants ran away and it was submitted in the police station.

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Accused Nandu Yadav is stated to be the grand son of Dalsingar Yadav. Janak Singh is the servant of Jamuna Singh and feeds his cattle while Chhatish Singh is the servant of one Jagdish of the same village and is stated to be friendly with Jamuna Singh. He has also deposed that Nandu was armed with a lathi, Chhatish was armed with a danda and Janak Singh, with a

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knife.

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In his cross-examination, he has stated that the house of Sudarshan is situated at a distance of 3 bighas from his house. On the date of occurrence, it was a moonlit night. The mandai was surrounded by sugarcane and Arhar fields. In the north of the Mandai and at a distance of four furlongs exists the tubewell of Kalika, which was illuminated by a light bulb.

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He has also categorically stated that only Pakhandi and Sudarshan arrived on the spot at the time of incident and that no other person either came to the spot or witnessed the incident. When he reached to spot on hearing the cries of Basant he saw that Basant has injuries on his head and jaw and that there were no other injuries. Basant had been knifed under the jaw and that both injuries were bleeding.

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He has lastly stated that on the date of incident, Basant had eaten roti, dal, rice and meat at 8 p.m. and that he had seen only the three accused on the site of incident and that on the spot the slippers, muffler, pistol, knife and bloodstained earth were found and were taken into custody by the police, as also the light bulb and lantern.

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He stayed on the spot for about an hour and thereafter went to his house, which is situated at a distance of 50 to 60 steps, where the report was prepared and the he went to the police station on foot. He reached at 4 am. The police station is situated at a distance of 9 kms from his house.

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The investigating officer came to the spot between 7 to 8 a.m. He has denied any knowledge as to whether Chhatish Singh and his family had supported Bankey Singh or Jamuna during the elections. He has also categorically stated that he had not seen Chhatish Singh assault his father and in fact he was holding his father by his hand. Nandu Yadav, Chhatish and Janak ran away from the scene of occurrence and that he along with Pakhandi and Sudarshan chased them and that at that time, Jairam had a torch. He has also stated that his thumb impression on the report, which he had got transcribed and given at the police station, was obtained at his residence and not at the police station. He had bandaged his father so as to stop the bleeding and that the lantern burning in the Mandai had been given in his supurdagi by the Investigating Officer. It was of 'Prabhat' brand.

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He has been unable to state as to how long the assault took place or for how long the three accused had attacked him. He did not mention being attacked by the accused in his report as he was not in his senses. During the assault, his clothes were

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not torn and those of his brother were completely torn. He has also stated that the knife used for assault had a sharp edge on only one side. He could not count the number of times, his father was assaulted and that there was simultaneous assault by knife and lathis and that this assault took place for less than 15 minutes. He claims to be a mistry at the brick kiln of one Ram Briksha Yadav situated at a distance of 4 miles. His brother, Jairam is the Halwaha of Bankey Singh, who is the Pradhan and a powerful person.

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He has denied the suggestions that he was deposing falsely under pressure of Bankey Singh or that report has been lodged at the behest of Bankey Singh or that he has not seen the occurrence.

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PW-2, Jairam s/o Basant has stated that Chhatish and Nandu Yadav caught hold of the deceased while Janak Singh assaulted with a knife. The incident took place at mid night and that he had seen the occurrence in the light of a lantern burning there. He has also deposed that Pakhandi and Sudarshan had seen the accused running away but they were scared of deposing against the accused.

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In his cross-examination, he has stated that he is completely illiterate and that the report was transcribed by Jairam son of Ram Janam at the Police Station and that Pardeshi PW-1 had put his thumb impression thereon. Apart from him, only Sudarshan and Pakhandi had seen the incident and none else. He was also unable to explain as to why his name was not mentioned in the first information report.

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He has next stated that his father was assaulted at 12 a.m. and that after the assault, the accused ran away. Apart from the lantern, there was no other source of light present on the scene of the incident. At the time of incident, there is no enmity between his family and Nandu or Chhatish.

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He has admitted that in a case pertaining to land between Jamuna Singh and Dalsingar Singh, his father, the deceased, had deposed on behalf of Dalsingar Singh. The said Dalsingar Singh is the father of Nandu Yadav. At the time of occurrence, he ( the witness) was sleeping in his mandai, nearby.

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During his cross-examination, he stated that the accused had also attacked him for about 5 minutes and that they did not attack any one else. His clothes were not torn nor were bloodstained on account of the said assault.

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PW-3, Shiv Pujan Constable No.818 is a formal witness, who

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had worked with the Investigating Officer, Surendra Bahadur Singh and has proved the signatures on various memos prepared by the Investigating Officer, who is stated to have since, died.

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PW-4, Dr. Abdul Haleem has proved the postmortem report, which mentions the following two injuries, on the body of the deceased -

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1. One lacerated wound 1.5 cm x .3 cm x skin deep on the right side of front of head 9 cm above and lateral bridge of nose.

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2. One lacerated wound 3.5 cm x 1.5 cm x bone deep on the right mandible region 5 cm below the right ear and downward medially.

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The postmortem report states that rigor mortis was present in the hands and feet. The thyroid cartilage was found cut and the stomach contained semi digested rice and meat. The cause of death appeared to be due to shock of aforesaid injuries. In his examination-in-chief, he has lastly stated that a blunt knife could cause a lacerated wound.

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During cross-examination he has stated that both the injuries would normally be caused by a blunt weapon. The injuries on the body of the deceased could have been sustained on the intervening night of 17/18 Jan 1986 from 10 p.m. to 3 a.m. Both injuries could not be caused simultaneously if a person fell on a hard surface with force. However, the trachea can be ruptured by a fall over a pointed brick.

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He has lastly opined that in case, deceased had food at 9 p.m., the same should have necessarily been digested by 4 a.m.. The dead body was covered only by a cotton dhoti. He has stated that in case, there was a bloodstain on the dhoti, it would have been mentioned in the postmortem report. There was no other injury on the body of the deceased and both the injuries 1 and 2 were lacerated wounds.

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In their statements recorded under Section 313 Cr.P.C., all the three accused denied, the questions put to them and have stated that they have been charged/ implicated on account of enmity.

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We find substance in the submissions made by counsel for the appellant that there are substantial contradiction in the testimony of the PW-1. The first informant and the PW-2 his brother, both claim to be an eye witnesses. Their statements are no doubt consistent, inasmuch as, both state that Nandu and Chhatish held their father while he was knifed by Janak Singh. However, in all other material aspects, their testimony is contradictory. Each of the ocular witness has not stated about

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the presence of other on the scene of the crime. Both claim that the only other eye witnesses were Sudarshan and Pakhandi, who have not been produced by the prosecution. Both of the alleged eye witnesses, namely, Pakhandi and Sudarshan are admitted by PW-1 to be his relatives.

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There is conflict in their statement also as regards, the source of light. PW-1 has disclosed two sources of light, a lantern burning in the mandai and a light bulb on the tubewell of Kalika. PW-2 on the other hand mentioned only the lantern and has stated categorically that it was the only source of light, available.

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As regards, the light bulb burning on the tube well of Kalika, the contention of Shri Sudhir Dixit is that as per the site plan, this source of light is situated at a distance of 800 meters from the mandai and north of it. The mandai has a blank wall on its northern end. This source of light, therefore, cannot be a genuine source of light.

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In so far as, the lantern is concerned, its recovery has not been proved and the same has not been produced during trial. Moreover, PW-1 in his testimony has stated that the lantern was handed to him by the Investigating Officer. In any case, PW-1 states that this lantern is of Prabhat make and although, a memo has been prepared giving lantern in the supurdagi of PW1 for its production before the Court, the same was never produced during trial.

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There is material contradiction in the testimony of the two ocular witnesses, as regards, the duration of the assault by the accused on Basant. The factum of the assault upon the two ocular witnesses has not been stated in the first information report.

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PW-1 has categorically stated that only Sudarshan and Pakhandi had seen the incident and that no one else had arrived at the spot or saw the occurrence.

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He has also stated that the police had recovered the slippers, muffler, pistol and bloodstained earth from the site of the incident. However, there is no document on record to show that slippers, muffler, pistol, knife and bloodstained earth had been sent for forensic examination.

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As regards, the assault upon the ocular witnesses, PW-1 has stated that the clothes of his brother Jairam were completely torn and fell in the ditch. He has unable to state as to how long assault continued either upon the accused or upon him. He has lastly, during cross-examination stated that the assault by knife

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and lathi continued for less than 15 minutes.

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On the other hand, PW-2 in his oral testimony and his crossexamination has categorically stated that his clothes were not torn and that the accused had also attacked him for five minutes. He has also denied any bloodstains on his clothes. He has also stated that in his cross-examination that apart from him only Sudarshan and Pakhandi had seen the incident and no one else. He has not been able to explain as to why, his name was not mentioned in the first information report as a eye witness. He has also denied existence any source of light except the lantern.

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Although, the testimony of two witnesses is of repeated assault, the same is belied by the injuries found on the body of the deceased. There are only two injuries. The same therefore, conclusively show that the assault on the person of the deceased was extremely short lived and the factum of a sustained and long assault appears to be an improvement introduced only to fortify the presence of the ocular witnesses on the scene of the crime.

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However, the discrepancies in their statements regarding duration and the fact that PW-1 claims that the clothes of PW-2 were completely torn which is categorically denied by PW-2 himself, falsifies this testimony completely. The discrepancies also cannot be reconciled in any manner.

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It is hard to believe that PW-1 who claims to be an eye witnesses would not have mentioned the presence of his brother on the scene of the crime. Even the statement of PW-1 regarding the recovery of various articles like slippers, muffler, pistol, knife and bloodstained earth from the spot is belied by the material on record. No memo has been prepared regarding their recovery, and in its absence the statement cannot be accepted.Besides, the mention of various articles having been left behind by the accused has come for the first time during cross-examination. The aforenoted discrepancies therefore, render the presence of both the alleged witnesses on the scene of occurrence, extremely doubtful.

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We also find merit in the submission of counsel for the appellant that the alleged source of light, the lantern was never produced during trial. It was necessarily required to be proved as the same was the main source of light, wherein, the accused could have been seen or identified. Even the knife, the alleged weapon of the assault, has never been recovered. In the absence of any such recovery, the prosecution case that injury no.2 was caused by a sharp edged weapon is also rendered doubtful as

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the same is, in any case, a lacerated wound.

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In the aforesaid background, it is difficult to accept that the two ocular witnesses, the only witnesses of fact, actually saw the assault and in any case, in the absence of any proven source of light, they would not be in a position to identify the accused. The statement of PW-1, during his cross-examination that he put his thumb impression on the report at his residence at about 9 a.m., also casts a doubt about the actual lodging of the FIR and it can be gainfully argued that the first information report was belated and prepared after consultation and deliberation and therefore, it did not necessarily state correct facts.

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Shri Shivam Agarwal has placed reliance upon para 30 of Kirshnegowda and others Vs. State of Karnataka, AIR 2017 SC 1657, which reads as follows :

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"............ In our opinion, the case at hand is also one of clear contraction between medical and ocular evidence. there are contradictions in the statements of the two witnesses of fact produced by the prosecution, who are also interested witnesses being the sons of the deceased. The accused appellants are therefore, entitled to the benefit of doubt at the very least."

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In view of the above, in our view, the prosecution has not been able to prove the case against the appellants beyond reasonable doubt and they are entitled to the benefit of doubt, as in the case cited above.

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Under the circumstances, we allow the appeals of Chhatish Singh and Janak Singh and acquit them of the charges against them. There bail bonds are cancelled and sureties are discharged.

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Order Date :- 7.9.2021 RKM

Chhatish Singh v. State

Case brief

What is this about?

What did the court decide?

Chhatish Singh v. State

Case brief

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