SHASHI KANT,J. - (1.) Above Jail Appeal has been preferred under section 383 of Criminal Procedure Code (hereinafter referred to as 'Cr.P.C.') against the judgment and order dated 16.11.2006 passed by Additional Sessions Judge/Fast Track Court No.5, Kanpur Nagar in Sessions Trial No. 854 of 2003, arising out from the Case Crime No. 38A of 1994, under Sections 147, 148, 149, 302, 436 of Indian Penal Code (hereinafter referred to as 'IPC'), Police Station Babu Purwa, Kanpur Nagar, whereby though the appellant has been acquitted for the offence punishable under Section 436 IPC but has been convicted and sentenced for one year simple imprisonment under Sections 147 IPC, two years simple imprisonment under Section 148 IPC and imprisonment for life and fine of Rs. 10,000/- with default stipulation clause under Section 302/149 IPC.
(2.) Brief facts relating to the prosecution case are that : 2.1 On 10.02.1994 S.I. Mam Chand has lodged an oral first information report regarding lying of a burnt dead body at Khatikana Pasiyana, which was suspected to be murdered. On the above information, Case Crime No. 38A of 1994 under Sections 302, 436 IPC has been registered against unknown persons. Entry about registration of case was made in GD Rapat No.11 dated 10.02.1994 at 8.20 A.M. Investigation of the case was entrusted to SI Girivar Prasad Shukla PW-6, who rushed to the spot, prepared site plan (Exhibit Ka-4) on pointing out of SI Mam Chand. He also prepared inquest memo of the dead body (Exhibit Ka-5), recovery memo of shoe and ash (Exhibit Ka-6), Chalan Lash (Exhibit Ka-7), Samples of Seal (Exhibit Ka-8), Photo Naash (Exhibit Ka-9), report to C.M.O. (Exhibit Ka-10), report to SPO (Exhibits Ka-11 and Ka-12). He has also taken statement of witnesses. After post mortem examination, dead body was buried in Bagahi Graveyard on 10.02.1994. On 13.02.1994, wife of deceased namely Smt. Nagma Parveen (PW-1) submitted a written report (Exhibit Ka-1) to the Investigating Officer PW-6 stating therein that her husband late Nafees Ahmad and father Zakir Ali were working in Bulb Factory of one Kallu. On 09.02.1994, the atmosphere was tensed due to the murder of one Kala Baccha at 11.30 a.m. When her husband and father were coming to home then Pappu @ Banta, Makku, Manoj Kanja, Ramesh, Kamal and Girish Chandra Bajpai caught hold of her husband at 12:00 P.M. in the noon and after committing murder, burnt his body. Ahmad Ali and Mehboob, who were present there also witnessed the incident. Afraid from the incident, her father came to home and told her about the incident. The dead body buried on 10.02.1994 at Bagahi Graveyard was of late Nafees Ahmad. Due to fear and curfew, she could not reach to the Police Station. 2.2 On the above information P.W.6 has recorded the statement of Smt. Nagma Parveen P.W.1, Ahmad Ali P.W.2, Zakir Ali P.W.3 and Mehboob P.W.4. He has also taken other steps in furtherance of the Investigation. 2.3 After 24.02.1994, the case was transferred to CBCID and the investigation of case was taken by P.W.9, Inspector Devendra Nath Chaturvedi. 2.4 During investigation, I.O. S.I. Deonath Nath Pandey P.W.11 has found evidence only against the appellant Girish Chandra Bajpai and co-accused Pappu @ Banta, Rakesh Sonkar @ Makku and Ramesh @ Manoj Kanja and accordingly he filed charge sheet (Exhibit Ka-15) against them under Sections 147, 148, 149, 302 and 436 IPC. 2.5 The case was committed to the Court of Sessions and in due course transferred to the Court below. The Court below on 24.02.2004 framed charges under Sections 147, 148, 302/149, 436 IPC against the appellant, who denied the charges framed against him and claimed to be tried. 2.6 To prove its case, the prosecution has examined wife of the deceased Smt. Nagma Parveen P.W.-1, brother of the deceased Ahmad Ali P.W.-2, father-in-law of the deceased Zakir Ali P.W.-3, eye-witnesses Mehboob P.W.-4, Dr. Irshad Ali P.W.-5, First Investigating Officer SI Girivar Prasad Shukla P.W.-6, Hazi Mohd. Ahmad Usmani P.W.-7, Waseem Javed P.W.-8, Inspector Devendra Nath Chaturvedi Investigating Officer of CBCID P.W.-9, Constable Lavkush Kushwaha P.W.-10, another Investigating Officer of CBCID, Inspector Deonath Pandey P.W.-11 along with documentary evidence i.e. written report (Exhibit Ka-1), postmortem examination report (Exhibit Ka-2), FIR (Exhibit Ka-3), Site Plan (Exhibit Ka-4), Inquest Report (Exhibit Ka-5), recovery memo (Exhibit Ka-6), Chalan Lash (Exhibit Ka-7), Sample Seal (Exhibit Ka-8), Photo Lash (Exhibit Ka-9), report to CMO (Exhibit Ka-10), report to SPO (Exhibit Ka-11 and Exhibit Ka-12), photocopy of entry of death register 1994 (Exhibit Ka-13), copy of G.D. dated 10.02.1994 (Exhibit Ka-14) and charge sheet (Exhibit Ka-15). 2.7 In their statement recorded under Section 313 Cr.P.C., the appellant Girish Chandra Bajpai denied his involvement in the incident. He also stated that due to communal riot and being Hindu, he was inimically implicated in the case. 2.8 After hearing the parties and evaluation of evidence available on record, the Trial Court arrived to the conclusion that prosecution has successfully proved its case against appellant and passed the impugned judgment and order, as stated above. 2.9 Aggrieved therefrom the appellant has preferred this Jail Appeal.
(3.) Sri Ashok Mehta, Senior Advocate assisted by Sri Sunil Singh learned counsel for the appellant contended that : 3.1 Initially FIR has been lodged against unknown persons for murder of unknown person by S.I. Mam Chand and investigation of the case was started on the basis of above FIR. 3.2 According to the prosecution, Smt. Nagma Parveen P.W.-1 (wife of deceased), Ahmad Ali P.W.-2 (brother of deceased), Zakir Ahmad P.W.-3 (father-in-law of deceased), and Hazi Mohd. Ahmad Usmani P.W.-7 (maternal father in law of the deceased), have identified the deceased as Nafees Ahmad before burial of the dead body. The Police was also present there and P.W.-1 was having curfew pass with her. Despite that they neither told the Police personnel present there that who, why and how murdered the deceased nor such information was given to the Police Station concerned, where the case of murder of deceased was already registered, without any just and cogent reason. 3.3 For the first time information regarding murder of deceased was submitted on 13.02.1994 by means of written report (Exhibit Ka-1). Admittedly, P.W.-1 is not an eye-witness. The so called eye witnesses of the incident i.e. P.W.-2 and P.W.-3 who are brother and father-in-law of the of the deceased respectively have neither informed the Police nor scribed the written report. Written report was scribed by one Tahir, who has not been examined by the prosecution. 3.4 In the written report (Exhibit Ka-1), there is no mention of any weapon and use of kerosene oil etc. in the murder and no specific role has been assigned to any of the accused in murder of the deceased even P.W.-1 has also said nothing in her evidence. 3.5 The case of pouring of kerosene oil on the deceased and his burning by the appellant Girish Chandra has been first time introduced by P.W.-2 in his statement recorded before the Court on 09.08.2004. 3.6 According to the postmortem examination report, the right ear of the deceased was chopped and that injury was possible only by use of any sharped edged weapon but no prosecution witness has assigned any sharped edged weapon and its use by any accused. 3.7 Postmortem examination report also reveals all injuries except to elimination of right ear on the left side of the deceased which belies prosecution story regarding murder of accused by surrounding him by the accused persons and beating and burning him. It appears that some persons have caused injuries to the left side of the deceased and cut his right ear by using sharped edged weapon and thereafter burnt his body, which was quite possible in the case of communal riot, which had taken place after murder of Kala Baccha. 3.8 According to P.W.5 during post mortem examination, no odour of kerosene oil was found from the dead body or clothes of the deceased, which also belies the prosecution story. Even P.W.2 has replied to a query of the Court that at the place from where he was witnessing the incident, there was no odour of kerosene oil. As well as accused persons poured liquid on his brother. He was inflamed 3.9 The Court below has wrongly and illegally convicted the accused appellant under Sections 147, 148 IPC. As per law, the appellant could be convicted only under one section first and secondly, as number of accused persons according to charge sheet is less than five, therefore, they could not be sentenced any of the sections which are Sections 147, 148 and 149 IPC as such conviction of appellant in the aforesaid sections are bad in law. Apart from above charge sheet has been filed only against the accused and no charge sheet was filed against the other named accused persons. No application under Section 319 Cr.P.C. has been moved and Court has also not summoned the other named person as accused in this case as such conviction of appellant under Sections 147, 148, 149 IPC is also wrong and bad in law. 3.10 It is highly impossible that despite imposing of curfew order in the area, dead body of any unknown person remained lying on the road from 12 p.m. (noon) of 9th February, 1994 up-to 8:20 a.m. of 10th February, 1994 i.e. for about 20 hours in densety populated area without any information to the Police in this regard from public or Police officials and that too also without any attack on it by stray animals especially dogs and vultures like crows etc. 3.11 This is also surprising that despite knowing that dead body of Nafees was lying, his wife did not visit there to see him and her evidence regarding identification of the dead body in the graveyard on 10.02.1994 is also not found reliable by the Court below. 3.12 Another eye witness Mehboob P.W.4 has not supported the prosecution case and he has been declared hostile. 3.13 Prosecution has not examined any independent witness, P.W.1 wife of the deceased is not the eye witness of the occurrence while P.W.2 and P.W.3 are chance witnesses and being wife, brother and father-in-law of the deceased respectively, all the above witnesses are highly interested witnesses. 3.14 The investigation of the case is highly defective which has caused serious prejudice to the appellant because due to various defects in the investigation, the appellant could not properly defend his case and found himself handicapped in the matter. 3.15 Due to contradictions and improvements in the evidence of P.W.1, P.W.2 and P.W.3, their evidence is not reliable and appellant could not be convicted on the basis of their evidence. 3.16 Prosecution witness P.W.2 has given different version and manner of the incident, as such he has not supported the prosecution case but prosecution has not declared him hostile and has not cross-examined him on that points. As such, evidence of P.W.2 is binding on the prosecution and defence, appellant may take benefit of that. 3.17 In this regard learned counsel for the appellant has placed his reliance on the following decisions : In Aditya vs. State of U.P. reported in , the Court said that : "37. Even if the witness did not support the prosecution version in its cross-examination then it was the duty of the prosecution agency to get the witness declared hostile and get him cross-examined but neither the Court nor the prosecution agency endeavoured to make an attempt to bring whom the correction factual situation of the case." In Raja Ram vs. State of Rajasthan (2005) 5 SCC 272, the Court said that : "9. The testimony of P.W.8 Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw P.W.5 making the deceased believe that unless she puts the blame on the appellant and his parents. She would have to face consequences like prosecution proceedings. It did not occur to the public prosecutor in the trial Court to seek permission of the Court to heard (sic declare) P.W.8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of P.W.8 is binding on the prosecution. Absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how P.W.8's testimony can be sidelined." In Mukhtiar Ahmed Ansari Vs. State, (2005) 5 SCC 258, Hon'ble Supreme Court said that : " The learned counsel for the appellant also urged that it was the case of the prosecution that the Police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as P.W.1. He, however, did not support the prosecution. The prosecution never declared P.W.1 "hostile", His evidence did not support the prosecution. Instead, if supported the defence. The accused hence can reply on that evidence. A similar question came up for consideration before this Court in Raja Ram vs. State of Rajasthan. In that case, the evidence of the doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution." 3.18 The injury of elimination of right ear of deceased has not been explained by the prosecution, which is a serious lacuna and dent in prosecution story. In support of his this contention, learned counsel for the appellant has placed his reliance on the following decision : In Noor Ahmad vs. State, 2016 (3) SCC 325, in para 25 of which, the Court said that : "25. In the postmortem report of the deceased, the presence of a surgical wound on the left side of the head, measuring 30 cm long extending vertically upwards from point 1.5 cms above and in front of left ear, has remain unexplained by the prosecution, is another lacuna in the prosecution story which casts a shadow of doubt on the same and the benefit of which should certainly go to the accused appellants." 3.19 The prosecution is miserably failed to prove its case beyond reasonable doubt against the appellant and as such, the appellants are entitled to get benefit of doubt. In this regard he has placed his reliance on the decision of Noor Mohd. (Supra), in which it is said that : "29. Further,it is clear from the record that all the forest officers were deployed on patrolling duty to keep a check on then increasing forest offences. It means incident, like in the instant case, could reasonably be anticipated. It has rightly appreciated by the trial court that under such circumstances, they should have been armed with weapons at least for their own safety. As per record, when the incident occurred all the forest officers were found to be without weapons. It can not be believed that the forest officers on patrolling duty were without any weapon. In this regard, High court has erred in observing that the forest department being poorly equipped failed to provide weapons to meet the situation, like in the instant case." In Mahavir Singh vs. State of Madhaya Pradesh 2016 (10) SCC 220, in which the Court said that : " 24. It is the duty of the Apex Court to separate chaff from the husk and to dredge the truth from the pandemonium of Statements. It is but natural for human beings to state variant statements due to time gap but if such statements go to defeat the core of the prosecution then such contradictions are material and the Court has to be mindful of such statements [See : Tahsildhar Singh v. State of UP, AIR 1959 SC 1012; Pudhu Raja v. State, (2012) 11 SCC 196; State of UP v. Naresh, (2011) 9 SCC 698]. The case in hand is a fit case, wherein there are material exaggerations and contradictions, which inevitably raises doubt which is reasonable in normal circumstances and keeping in view the substratum of the prosecution case, we cannot infer beyond reasonable doubt that the appellant caused the death of the deceased." 3.20 The prosecution case regarding burning of dead body by kerosene oil is also not reliable due to nature of injury of deceased and to the facts that no odour of kerosene oil was found by P.W.5 Doctor who has conducted the post mortem of dead-body. In this regard, he has placed his reliance on the following decision : In State of U.P. vs. Hanifa Khursheed 2015 (1) ALJ 596, in which Clause ii, iii, iv and (g) of para 29 and (5) of para 34 in which, the Court said that : " 29 (ii). That the deceased did not disclose to anyone of the locality that he was set on fire by accused after sprinkling kerosene oil upon him; (iii) That there was no kerosene smell either on the body of the deceased or in the rooms of the accommodation (lodge) of the accused; (iv) That post-mortem report does not speak that any smell or odour of kerosene oil was noticed by the doctor who conducted the autopsy; (ix) That the link evidences are missing and the chain of circumstances is not complete to fasten the guilt with the head of the accused; 34 (5) Non-presence of kerosene odour on the body of the deceased or in the rooms in question is further missing link to complete the circumstantial chain." Learned counsel for the appellant has also hammered wrong procedure adopted by the Court below in recording the evidence of prosecution witnesses by submitting that during examination of P.W.2, the Court has deferred his cross-examination and examined P.W.3 and thereafter again examined and completed the evidence of P.W.2, which is against the established procedure of law. 3.21 Apart from above, appellants have examined his defence witnesses Ram Naresh Singh D.W.-1, Anant Kumar Mishra D.W.-2 and Constable C.P. Kali Charan D.W.-3 along with copy of judgment dated 04.01.2006 passed in S.T. No. 855 of 2003 (State Vs. Girish Chandra Bajpai) and photocopies of judgment dated 11.09.2001 and 17.10.2005, which also caste serious doubts on the prosecution case and support the defence version about wrong and false implication of the appellant in the case.;