Mahtab Singh & Anr vs State Of U.P

2. Briefly put, the prosecution case is : Ganga Singh (deceased) and his brother Vinod (PW 1) owned a small Flour Mill at village Kampil. On September 28, 1990 at 9.00P.M., while returning from the betel shop of Rajveer after purchasing bidi, a few steps away, at Tiraha (junction of three roads), Mahtab Singh (A-1) and Jaipal (A-2) - father and son - met him. Ganga Singh demanded money due from Mahtab Singh. Mahtab Singh, however, rebuked him. Ganga Singh asked Mahtab Singh as to why he was rebuking when money was due and payable by him. Hearing this, Mahtab Singh asked his son Jaipal to catch and kill Ganga Singh. Jaipal caught hold of Ganga Singh; Mahtab Singh gave a knife blow to Ganga Singh due to which Ganga Singh fell down. Vinod (PW-1) and Ratiram (PW-2) who were sitting under the thatched roof 2 near Flour Mill and one Asarfilal rushed towards the spot. On seeing them, Mahtab Singh and Jaipal ran away. Ganga Singh was sent to Primary Health Centre at Kayamganj with Asarfilal, Balbir, Shyam Singh and other family members. Vinod got the report written from one Charan Singh and went to Kampil police station. Based on that, First Information Report was registered under Section 307 IPC. Dr. G.K. Singh (PW-5), Medical Superintendent, Primary Health Centre, Kayamganj sent an intimation at about 10.30 P.M. to the police station, Kampil about the death of Ganga Singh. The case was, thus, converted to Section 302 I.P.C.

3. Singh Rampati Ram (PW-6), Sub-inspector, Kampil police station started investigation on September 29, 1990. He prepared the sketch map and also took one lantern in his possession. The challan of dead body was prepared and photo of dead body was also taken. The autopsy of dead body was conducted by Dr. Manohar Singhal, (PW-4). On September 29, 1990, at about 4.00P.M., A-1 was arrested. On his disclosure statement, blood stained knife, shirt and bandi are said 3 to have been recovered from his house. Then, another case under Section 4/25 of the Arms Act, 1959 was registered against A-1. The investigation of the case under Section 4/25 of the Arms Act was done by Sub- Inspector B.D. Chaudhary (PW-8). A-2 was also arrested on October 6, 1990.

(viii) The recovery of knife, shirt and bandi (all blood stained) from the house of A-1 at 4.30 P.M. immediately after his arrest at 4.00 P.M. on 29.09.1990 is highly doubtful as police raided the house of A-1 from 6.00 A.M. to 3.30 P.M. on September 29, 1990 number of times and offending 5 article was not found. No memo of disclosure statement of A-1 prepared.

(ii) The FIR was lodged barely 45 minutes after the incident ; the distance of police station being one furlong from place of incident and the presence of PW-2 was mentioned in the FIR itself.

(iii) PW-1 and PW-2 were sitting under the thatched roof near the Flour Mill and there being no obstruction between that place and the place of incident which was about 40 paces away, it was not improbable for PW-1 and PW-2 to watch the incident as lantern was burning at the shop of Balbir (8 paces away). There was no possibility of mistaken identity, as A-1 and A-2 were not unknown to PW-1 and PW-2.

14. All in all, the testimony of PW-1 and PW-2 does not conform with collateral circumstances as well as probabilities. The circumstances brought on record show that reliance on their testimony is not safe. Their testimony is shrouded with grave suspicion and serious doubts.

15. The trial court meticulously examined the entire evidence available on record and then reached the conclusion that the prosecution has failed to prove the charges against the accused beyond reasonable doubt.

20. We, accordingly, allow the appeal and set aside the judgment dated May 27, 2005 impugned in the present appeal. Mahtab Singh is already on bail, his bail bonds are cancelled. Jaipal is directed to be released forthwith unless required in any other case.

..........................................J (S.B. SINHA) ..........................................J (MUKUNDAKAM SHARMA) ...........................................J (R.M. LODHA) New Delhi April 13, 2009 1 6 1 7