of U.P. Vs. Abdul Karim and Ors  Insc 771 (26 July 2007)
Dr. ARIJIT PASAYAT & P.P. NAOLEKAR
Dr. ARIJIT PASAYAT, J.
1. The State of U.P. has filed this appeal against the judgment passed by a
Division Bench of the Allahabad High Court directing acquittal of the three
respondents (hereinafter referred to as the 'A-1, A-2 and A-3') respectively.
2. The accused persons were convicted for the offence punishable under
Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the
'IPC') by the IVth Additional and Sessions Judge, Bareilly in Sessions Trial
3. Background facts in a nutshell are as follows:
The first information report (Ex. Ka. 1) was to the effect that Buddhi was
the husband of the complainant (PW-1) whereas A-1, Abdul Karim was his elder
brother. He was indebted to some Punjabi, and hence had mortgaged his house and
1= bigha agricultural land with him and abandoning the village 20 years back
had gone to Baheri and settled there with his wife and children. The husband of
the complainant redeemed that property after paying debt of the Punjabi and
exercised possession over the house and agricultural land of that accused.
Three months before the occurrence accused Abdul Karim approached her husband
and requested him to return his house or to build a shop for him. Hence her
husband had given him a shop in a portion of his house.
Subsequently, he has summoned his son, Salim to the village and both of them
started grocery shop therein. Subsequently some dishonesty cropped in his mind
and he started pressing for return of his house and 1= bigha agricultural land
but her husband refused to do so. The agricultural plot of the accused exists
by the side of the plot of the deceased, hence he used to cultivate the same together.
He had been ploughing these fields for the last three years and one day before
the occurrence accused Abdul Karim asked her husband not to plough his field
but her husband refused to do so. This enraged the accused and they threatened
to teach him a lesson next day if he attempted to plough the field. Her husband
did not care for it and challenged them to stop him if they had any courage to
do so. On the date of occurrence in the early morning her husband had gone to
plough the field with bullocks and plough and at about 7 A.M. the complainant
and her son Mukhtar were going to provide him food there and when they reached
near the field, they saw the accused Salim (A3) armed with an iron rod, Abdul
Hamid (A-2)armed with a spade and Abdul Karim (A-1) armed with a 'Kassi'
proceeding towards their field hurling abuses at her husband and they started
belabouring him with arms and their hands and injured him. He fell down on the
ground. They kept on beating him there. Hearing shrieks of the complainant and
her husband, her brother Chhotey who had come there for call of nature appeared
there and several other co-villagers also arrived there and on their challenge
the accused left the place running towards forest considering that her husband
was dead. Later on she arranged for a charpai from the village and after
keeping the injured thereon proceeded towards the police station in company of
Rafiq, Rashid Alauddin, Munshi, Abdul Samad and reaching near village Etaua. On
the way her husband breathed his last and then she had gone to the police
station and lodged report at about 11.00 A.M. on the same day.
Head Moharrir Jagdish Singh prepared check report and G.D. report (Ex. Ka.3)
on the basis of oral information of the complainant in presence of S.I. D.D.
Agarwal (PW.5) who took up the investigation immediately. He interrogated the
complainant and then prepared inquest report, challan and photo of the Corpse
(Ex. Ka. 4 to Ka. 6) and sealed the corpse and entrusted the same to constables
for onward transmission to the hospital for postmortem examination alongwith
necessary papers. He also prepared recovery memo (Ex. Ka. 7) for the blood
stained Chadar covering the corpse. Later on he went to the place of occurrence
and prepared site plan (Ex. Ka.
8) after inspecting the spot. He took sample and blood stained earth and
sealed the same in separate containers (Ex. 1 and 2) after preparing recovery
memo (Ex. Ka. 9). Later on other witnesses were also interrogated and after
concluding the investigation he submitted the charge-sheet against the accused.
The accused kept on absconding and surrendered to the court later on. He proved
statement of Smt. Mango recorded under section 161 of the Code of Criminal
Procedure, 1973 (in short the 'Code') vide Ex. Ka. 12 during trial.
Dr. I.S. Tomar (PW.4) carried on postmortem examination of the corpse of the
deceased on 13-4-1978 at about 3.15 P.M.
and he found that the deceased was aged about 40 years and his death
occurred within 1< days. He was average built and rigor mortis was present
in the lower limbs whereas it passed of the upper limbs. He found following
ante-mortem injuries on his person:
1. Lacerated wound 2.5 cm x .5 cm x scalp deep over left side head 9 cm
above left ear, placed obliquely.
2. Lacerated wound 2 cm x 5 cm. X scalp deep over right side head 7 cm above
right ear, placed obliquely.
3. Lacerated wound 3 cm x 1 cm. X scalp deep over top of head in middle,
4. Multiple clotted contusions in an area of 24 cm x 4 cm over outer aspect
of right arm from upper to lower end.
5. Abraded contusion 3 cm x 2 cm over back of right elbow.
6. Contusion 4 cm x 3 cm over dorsum of right hand.
7. Multiple abraded contusion in area of 6 cm x 1.7 cm over of left
8. Multiple abraded contusions in an area of 25 cm x 8 cm over back and
anterior aspect of left arm, from shoulder to elbow.
9. Two lacerated wounds-one 3 cm x 5 cm x 6 cm deep and other 2 cm x 5 cm x
bone deep over back of left forearm in upper third.
10. Abraded contusion 10 cm x 4 cm area over back of left forearm.
11. Contusion 6 cm x 4 cm over dorsum of left hand and left ring finger is
12. Multiple contusions in an area of 36 cm x 11 cm over outer aspect of
left thigh and left buttock placed parallel to each other and two parallel
lines in every contusion.
13. Multiple lacerated wounds in an area of 21 cm x 5 cm x bone deep over
front of left leg.
14. Lacerated wound 1 cm x 1 cm x 6 cm deep outer aspect of left knee.
15. Multiple contusions in an crea of 6 cm x 2 cm over back of leg in upper
16. Lacerated wound 4 cm x 1.5 cm x bone deep over front of right led in
middle and both bones are fractured.
17. Contusion 4 cm x 3 cm over outer aspect of right knee.
18. Contusion 2 cm x 1 cm right side chest 9 cm from nipple at 5 '0' clock
19. Multiple contusions in an area of 43 cm x 26 cm over whole of back from
shoulder to waist placed parallel and obliquely. Two parallel lines seen in
4. On internal examination, he found parietal bone and axillary bone
fractured and brain and membrane congested.
Blood present around the membrane. Heart was full on right side with blood
whereas it was empty on left side. Stomach and small intestines were empty
whereas large intestine was half full. Death was due to shock and haemorrhage
resulted through antemortem injuries. He proved postmortem examination report
Ex. Ka. 1 and he had sent the same alongwith blood stained shirts and underwear
of the deceased in a sealed packet to the Investigating Officer. In his opinion
the injuries and death of the deceased was possible at 12-4- 1978 at about 7-8
A.M. through iron rod, spade and Kassi.
5. After the investigation was completed charge sheet was filed. But the
accused persons pleaded innocence and claimed to be tried. Five witnesses were
examined to further the prosecution version. Smt. Mango (PW-1) widow of the
deceased, Chhotey (PW-2) brother of wife of the deceased and Mukhtar Ahmad
(PW-3) son of the deceased were stated to be eye witnesses. The trial Court
found the evidence of PWs 1, 2 and 3 to be credible and cogent and convicted
the respondents as afore-stated.
6. In appeal, the High Court analysed the evidence to hold that the
prosecution has failed to establish its accusations.
Accordingly, the judgment of acquittal was passed.
7. In support of the appeal, learned counsel for the appellant-State
submitted that the evidence of PWs 1, 2 and 3 leaves no manner of doubt that
the respondents were the assailants and the trial Court had rightly convicted
8. Learned counsel for the respondents on the other hand supported the
judgment of acquittal.
9. As rightly noted by the High Court the fate of the case depends on the
acceptability of the evidence of PWs 1, 2 and 3.
PW-1 partially resiled from her statement made during investigation.
According to her, she saw the assailants from a distance of one mile.
Sugarcanes were standing in the field which intervened between the place where
she was and the field where the incident occurred. She accepted that she had
not herself seen the assault but saw the accused persons while they were making
their escape towards the jungle. As noted above, she claimed to have seen them
running from a distance of one mile. She further admitted that in between the
village and her field the number of fields were situated where sugarcane and
wheat crops were standing.
10. PW-2 stated that he had also seen the accused persons committing the
assaults. But in the cross examination he admitted that he had come to the
place when the assault was over and he had seen the accused persons running
towards the jungle in the sugarcane field. He accepted that he was with PW 1.
11. PW-3 was a child of 9 years at the time of incident. He also admitted to
have seen the accused persons running away with their backs towards him
standing near his mother.
12. The evidence of PWs 1, 2 and 3 clearly indicated that they were far away
from the field where the alleged incident took place. The High Court noted that
identification was practically impossible from such a large distance
particularly when the field was obstructed by standing crops of sugarcane which
were not less than 6-7 ft in height. The High Court therefore rightly observed
that they could not have seen the assaults not only because of the distance but
because of the presence of heights of crops of sugarcane. Additionally, though
all the witnesses stated that the accused persons were carrying sharp cutting
weapons and rods, not even one injury was an incised one. All the injuries were
either lacerated wounds or contusion.
13. In view of the total discrepant nature of the evidence the High Court
has rightly discarded the prosecution version and set aside the conviction. We
find no reason to interfere with the conclusions of the High Court. The appeal
fails and is dismissed accordingly.