Reserved
Court No. - 48
Case :- CRIMINAL APPEAL No. - 4536 of 2010 Appellant :- Bhikam Singh And Another Respondent :- State of U.P.
Counsel for Appellant :- Ghan Shyam Das,Arvendra Singh,Dalvir Singh,J.N.Singh,M.P.Yadav,Raghuvansh Misra,Rahul Misra,Rajiv Kumar Singh (A.C.),Sushil Kumar Dubey Counsel for Respondent :- Govt. Advocate,R.K.Shukla
Hon'ble Anjani Kumar Mishra,J. Hon'ble Chandra Kumar Rai,J.
(Delivered by Hon'ble Chandra Kumar Rai,J.) Heard Sri P.K. Pandey, the learned amicus curiae for appellant no. 1, Sri Rahul Misra for appellant no. 2 and the learned AGA for the State.
1. This criminal appeal under Section 374(2) Cr.P.C. arises out of the impugned judgement and order dated 28.6.2010, passed by the Additional Sessions Judge, Fast Track Court No.3, Mainpuri in Sessions Trial No.138/1996, convicting / sentencing the appellants Bhikham Singh and Asha Ram under Section 302 IPC to life imprisonment with a fine of Rs.10,000/- each and in default of payment of fines, the appellants are directed to undergo 1 year additional imprisonment.
2. The prosecution story in brief is that on 4.10.1995, Ram Bharosey (deceased) was preparing his agricultural fields for sowing garlic, adjacent to the land of Bhikham Singh (appellant no. 1). On account of turning down the medh of the respective fields, an argument ensued between them. At about 6 P.M. in the evening when deceased- Ram Bharosey, Ved Ram, Urmila, wife of Ved Ram and Ambarwati, daughter of Ved Ram reached near the house of Birbal after finishing their agricultural work, appellant no.1- Bhikham Singh armed with half-barrel gun, Lajja Ram with country-made pistol and Asha Ram with half-barrel gun came on the spot, Bhikham Singh and Asha Ram climbed on the roof of Birbal’s house. Lajja Ram exhorted them to shoot. Accordingly, Bhikham Singh and Asha Ram fired, causing injuries in the back of deceased- Ram Bharosey, who fell down, resulting in his instantaneous death at the spot. Ved Ram and others made noise, then Ram Sewak, son of Kanaiya and others came at the spot. All the accused persons fled from the spot, threatening the witnesses. 3 months earlier, also the accused had beaten up the deceased on the field regarding which a criminal case is pending.
3. On the basis of written report (Ext. Ka-1), FIR (Ext. Ka-3) was registered at 9.15 PM on 4.10.1995 against accused Bhikham Singh, Asha Ram and Lajja Ram under Section 302 IPC. Inquest (Ext. Ka-5) on the body of the deceased was conducted on 4.10.1995 and the body was sent for postmortem (Ext. Ka-2) which was conducted on 5.10.1995 by Dr. Bal Mukund Prabhakar (P.W.- 3).
4. The Investigating Officer conducted the inspection of place of incident and prepared site plan (Ext. Ka-10). After investigation, charge-sheet (Ext. Ka-13) was submitted by the Investigating Officer against accused Bhikham Singh, Asha Ram and Lajja Ram under Section 302 IPC. The Trial Judge framed charges against the above accused persons on 7.8.1996, under Section 302/34 IPC to which accused persons pleaded not guilty and claimed to be tried.
5. The prosecution has examined 5 witnesses.
6. P.W.-1 / Ved Ram is the real brother of the deceased, is also an eye-witness to the alleged overt act who has stated as follows in his examination-in-chief “My brother Ram Bharose was murdered 2 years 4 months back. He was preparing agricultural fields for sowing garlic, adjacent to the land of Bhikham Singh (appellant no. 1). On account of turning down the medh of the respective fields, an argument ensued between them. At about 6 P.M. in the evening when I along with my brother Ram Bharosey, wife- Urmila, and daughter Ambarwati reached near the house of Birbal after finishing agricultural work, appellant no.1- Bhikham Singh armed with half-barrel gun, Lajja Ram with country-made pistol and Asha Ram with half-barrel gun came on the spot, Bhikham Singh and Asha Ram climbed on the roof of Birbal’s house. Lajja Ram exhorted them to shoot. Accordingly, Bhikham Singh and Asha Ram fired, causing injuries in the back of my brother / deceased- Ram Bharosey, who fell down, resulting in his instantaneous death at the spot.”
7. During cross-examination he has stated that he is one of 3 brothers. His elder brother is dead while the deceased was younger to him and was unmarried. His wife's name is Urmila. Ram Bharose, the deceased was never challaned for theft of neem. Bail had been granted in the case regarding cutting of the neem tree. His house in the village abadi is about 5 fields away from his field. His land starts from the house of Birbal. Six houses separte his house from that of Birbal. He does not know the dimensions of Birbals' house but is aware of its boundaries. Its main entrance opens due east. The house consists of 3 pucca and one kuccha rooms. On the north is open land followed by a pathway which is wide enough to accommodate a bullock cart. Beyond the pathway is a babool tree They had gone to the garlic field at about 10 AM. They stopped working in the field a little before sunset. The sun had set half an hour after the work was stopped. The field was being levelled as it had been ploughed earlier. On the day of incident he was working in his field while the deceased was working in his own field. The witnesses wife and daughter were with him. He had shown the investigating officer the garlic field. The police arrived at about 10 PM. The dead body was sealed and 2 constables were deputed to take it away At around 12 AM he along with the constables took the dead body to the police station where the constables obtained documents. The deceased lived separately with the eldest brother. They had reached the field at about 9 – 10 am after having food. During the day they did not have food in the field. The sun must have set 20 minutes after he started from the field. The accused fired at Ram Bharose from a distance of 10 to 15 steps. Both shots were fired simultaneously. He is not aware whether both shots hit or if only one shot hit who was the person who had fired it. On being hit the deceased did not run but fell down on the spot. The path is wide enough for a tractor to pass through it. The accused had intention of killing him all of them but did not fire on them. He denied the suggestion that he had seen the 3 accused on the pathway. On hearing his shouts witness Ram Sewak and many villagers arrived after 20 minutes but the accused by that time had run away. He had gone to lodge the report and reached the police station at 9 pm His statement had been recorded in the police station.
8. During the latter part of his cross examination he has stated that the report was scribed the next morning at 7:30 AM. Two persons of the village had accompanied him to the police station. Subsequently he has modified the statement stating that only Ram Baksh had accompanied him. They had started at about 7:30 am for the police station. They went on foot till `Lallu ki marriya' and thereafter by bus. None of the accused were arrested in his presence. He had heard that the accused had been arrested. He has denied the suggestion that his wife was his brothers kept and lived with him and that the accused were instrumental in her returning to him in 1992. While returning from the field he had a khurpi. He's also denied the suggestion that the deceased was shot in the dead of night and that the accused have been for falsely implicated and therefore the first information was lodged with delay.
9. In this regard the submission of counsel for the appellants is that it is strange that the deceased was working in his field but was not carrying any agricultural implement.
10. P.W.-2 / Smt. Urmila Devi the wife of P.W.-1 – Ved Ram, is also an eye-witness to the incident, who has stated as follows in her examination-in-chief “Ram Bharosey was my Dewar. The incident is of 3 years 1 month back. The accused persons have killed the deceased. At that time, nobody of the locality was present. She also deposed that the medh of the fields of the deceased and that of the accused appellant, Bhikham are common”
11. During cross-examination she has stated that her and Rambharose's field was one. The share of the deceased was towards the south while her share was towards north The field of accused Bhikham was adjacent to Ram Bharose's share. Her field was towards left while that of Ram Bharose was towards the right as was the field of Bhikham. They had gone to the field at about 9 – 10 AM while Rambharosa after having his meal had left earlier and was working alone. They stopped work half an hour before sunset. They did not have a meal in the field. They had a could be in their hand but not Rambharosa. Bieber lives alone in his house. She and others were coming from the west and going due east on the pathway which runs adjacent to the bit which existed on the open land of people. They were following about 10 steps behind the deceased. The accused were on the corner of the people's roof however she does not know the direction. The accused were on the corner of the group in the direction the sun sets. Both accused fired a shot each from their weapons. She does not know as to whose shot hit the deceased or whether both shots hit him. When they reached Rambharosa he was dead. When they were crying and screaming 2 constables came there. 1 of them asked Ved Ram to lodge a report. It is not correct to say that the constables carried the body to the police station. The police arrived at 10 pm and the body was sent for post-mortem at midnight. Two constables took the body on a tractor and reached the mortuary before sunrise. When she she returned after the post-mortem the next day her statement was recorded by the investigating officer. She denied having stated before the investigating officer that on hearing their shouts, villagers had arrived and had seen the incident. She had shown her bloodstained clothes to the investigating officer but he did not take them into custody. She is unaware about a teravi in the house of Mahendra Singh of Kiratpur. She is not aware of the deceased's age but he was unmarried and was not a man of bad character as alleged on behalf of the accused. She has denied the suggestion that the accused at the time of incident were at the tehravi in the house of Ram Kirat. Or that she and her husband were interested in usurping the land of the deceased.. The accused had fired also towards them but they escaped. The suggestion that the deceased had been murdered at night by unknown persons and that the accused had been falsely implicated has also been denied.
12. Counsel for the appellants has submitted that the allegation/ statement made by this witness that the accused had fired also towards the witness and her family members is an improvement.
13. P.W.-3 / Dr. Bal Mukund Prabhakar is the Radiologist, District Hospital, Mainpuri, who had conducted the postmortem on the dead body of the deceased, who has also proved the injuries sustained by the deceased. The injuries mentioned in his injury report are as follows:
1. A fire-arm wound of entry in an area of 30cm x 25cm in the upper & middle region of back, muscle deep to cavity deep.
2. Abrasion of 2cm x 1cm in the lower part of left elbow.\
14. The cause of death of the deceased was due to shock / haemorrhage on account of the ante-mortem injuries.
15. During internal examination the brain was found to be pale, both lungs were lacerated. 1 liter of clotted blood was present in the chest cavity. 2 ounces of fluid were present in the stomach, small and large intestines were half full. Liver spleen and kidney were pale. 26 pellets were recovered from the body. Time of death was about 1 day prior to the post-mortem.
16. During cross-examination he has stated that the direction of the shot has not been mentioned by him in his report. The injuries could have been sustained even if the shot were filed from an elevated position. The injuries y could have been caused by 1 or by 2 shots. Presence of fluid in the stomach indicated that the deceased had taken food more than 6 hours before death. Death was possible between 6 pm to 8 pm and not beyond that.
17. P.W.-4 / Sujan Singh states that on 4.10.1995, he was posted at P.S. Karhal on the post of Constable and has registered the FIR, on the basis of the written report given by Ved Ram (P.W.-1) and has proved the chik FIR.
18. PW 5, Inspector, Mohammed Akhtar is the investigating officer of the case. On the date of incident he was In-charge, police station Karhal. He departed from the police station at 9.45 pm along with Vedram and constable Sujan Singh and conducted the inquest. He prepared the challan lash, photo lash as also the letter to the Chief Medical Officer. He has also proved the sample seals. He inspected the site and prepared the site plan. He recovered cartridges from the spot as also the plain and bloodstained soil and memos were prepared. He arrested accused Asharam and recorded the statements of Yadram as also the witnesses of inquest. On 16.10.1995, after obtaining permission he recorded the statements of Lajjaram and Bhikham Singh in jail. After investigation he filed a charge sheet against the accused. On 5.10.1995 he recorded the statement of Urmila, eyewitness. The first informant and Urmila did not show him their bloodstained clothes nor gave them to him. Referring to the site plan he has stated that C is the spot from where the accused fired and A is the spot where the body of the deceased was found. Spot C is the south-west corner of the roof and the distance between point A and C is 11 steps. The height of the roof is ten and a half feet from the ground. He has denied the suggestion that after the inquest was prepared, an anti-timed report was lodged.
19. The statements of the accused under Section 313 Cr.P.C., were recorded wherein they pleaded their innocence and false implication due to village politics.
20. By the impugned judgement, the Trial Judge has acquitted accused Lajja Ram whereas accused Bhikham Singh and Asha Ram have been convicted and sentenced as above.
21. On the basis of the evidence above. the trial court convicted the appellants and sentenced them to life imprisonment as noted above. However co-accused Lajja Ram was acquitted.
22. The submission of Shri Rahul Misra, learned counsel for the appellants is that the prosecution case is extremely doubtful. It does not stand to reason as to why the two appellants after seeing the deceased approaching, climbed onto the roof of the house of a third party and fired from there. In any case the alleged time of incident is after darkness must have set in. In the absence of any source of light it is extremely unlikely that the alleged eyewitnesses would have been in a position to identify the shooters. He also submits that upon analysis of the evidence on record it is clear that the first information report has been anti-timed. The first informant, PW-1, in his cross-examination has clearly stated that the report was scribed in the morning after the alleged incident took place and was thereafter taken to the police station. It is not in doubt that the inquest had taken place on the night of incident itself and therefore it is absolutely clear that the first information report has been anti-timed and the allegations contained therein have been so scribed after due deliberation and consultation, also with the police. Even the presence of the alleged eyewitnesses is extremely doubtful as they are the relatives of the deceased and highly interested witnesses. No independent witness has been produced by the prosecution. In any case it is clear from the statement of PW 2 that the alleged FIR which is the basis of the prosecution case is the second information and not the initial information. The initial information given to the police about the incident has clearly been concealed and suppressed by the prosecution
23. It is next submitted that the injuries on the body of the deceased and taking into consideration the alleged place of firing, it is clear that the injuries could not have been caused by the alleged weapon of assault, an “addhi”. The pellets in such a country made weapon would not have enough energy to penetrate the human body from a distance of about 20 feet. Therefore even the medical evidence is not consistent with the ocular testimony. Moreover the the eyewitnesses have stated that they and the deceased, ate nothing after the morning meal which had been had before reaching the fields and yet the presence of two ounces of fluid in the stomach of the deceased indicates that he must have eaten something during the day which again is not consistent with the prosecution case and creates a serious doubt.
24. It has lastly been submitted that the evidence against the Appellants is not reliable as on this very same evidence one co- accused has been acquitted by the trial court
25. Learned AGA has submitted that the incident is said to have occurred at about 6 PM on 4th of October. This is the time of sunset and therefore the submission that the incident took place at night cannot be accepted. Even at sunset there is sufficient light and since the accused were residents of the same village and neighbours of the eyewitnesses. they were liable to be identified even in low light. In any case that was enmity between the accused and the deceased. A prior altercation had taken place regarding which a case was admittedly pending as is stated in the first information report itself. He has also contended that the argument of counsel for the appellants that the vision of the shooters who are alleged to be on the rooftop would be clearly blocked by the presence of a babool tree under which the body of the deceased was found cannot be accepted again because the said tree is a big tree over 25 to 30 feet high. It would not block the vision of the shooters as it was across the pathway and not towards the side from which the appellants have shot the deceased.
26. Learned AGA has next submitted that Ved Ram, PW 1 is a rustic villager and and his testimony during cross-examination that the report was scribed by him at 7 AM the next morning and thereafter taken to the police station appears to have been made under some misconception. The accused are not entitled to any benefit under this mistaken statement as they have failed to cross examine even the investigating officer on this discrepancy. He has lastly submitted that the accused are stated to have fired at the deceased from a distance of 11 places. The range of a full barrel gun is 200 m. The alleged weapon of assault is an “addhi or a half barrel gun of country made origin. Under the circumstances even if its range is taken to be one fourth that of a full barrel gun, the argument raised by counsel for the appellant is without substance.
27. In rejoinder the submission of learned counsel for the appellants is that it is clear from the medical evidence that the shot was not fired at the deceased from an elevated position. The injuries indicate that the shooter was on the same level as the deceased. This fact by itself is enough to acquit the appellants
28. In any case, weapons of assault had not been recovered. Therefore, the argument of learned counsel for the appellant is mere hypothesis and conjectural.
29. In rejoinder, the contention of counsel for the appellant is that the direction of the shot as emerges from the post mortem report indicates that the shot was fired when the shooters were on the same level and not on at a height from the victim.
30. We first consider the submission made by counsel for the appellant that the evidence in the case is not reliable and therefore one of the co-accused, Lajja Ram, has been acquitted by the trial court.. In the context of the argument, perusal of the reasoning given by the trial court reveals that the order of acquittal has been recorded as no overt act had been assigned by the prosecution to the co-accused. The role assigned to him was one of exhortation alone. The trial court has acquitted him because the prosecution was unable to establish a prior meeting of minds and therefore he could not have been convicted with the aid of section 34 IPC. In view of the reasoning given by the trial Court, the submission that Lajja Ram was acquitted as the prosecution evidence was not reliable, cannot be accepted. His acquittal is not on the ground that the prosecution evidence was unreliable but on the ground that since his role was one of exhortation alone, he could have been convicted under Section 302 IPC only with the aid of section 34 IPC whose essential ingredient, namely a prior meeting of minds, was not established or proved by the prosecution.
31. The next point to be considered by this court is the submission that the first information report has been anti-timed. This argument has been pressed basically on account of the statement of the first informant, PW-1, who has, during his cross- examination stated that the report had been scribed by him at 7.30 am in the morning and thereafter he proceeded to the police station, first on foot and thereafter by bus. This argument though on the face of it is highly attractive, is not liable to be accepted. The first information report in the case at hand has been lodged at 21.15 hours on 4.10.1995, regarding the incident which is stated to have taken place at 6 pm the same day. It is not in dispute that the inquest was held the same day at 9.15 pm. The inquest report clearly mentions the case crime number at its top and also the name of Asha Ram. The other co-accused are described as 'others', therein. The body is alleged to have been sent for post- mortem around midnight the same day. It was received by the doctor who conducted the post-mortem at 9.05 am as is clear from the endorsement on Exb Ka 9, although the post-mortem itself has been conducted later. The list of documents mentioned in the inquest report are among others the chik report as also the report of the first informant. Moreover, PW-4 the constable clerk has deposed that after the case was registered as crime No. 285 of 1995 the same was entered in the GD at serial No. 44 at 21.15 hours. Under the circumstances the first information report cannot be said to be anti-timed. Moreover once it is established that the first information report is not anti-timed and the case had been registered on 5.10.1995, the statement made by the first informant during cross-examination that the report was scribed by him the next morning at 7.30 am is something which has clearly been stated under some misconception. We therefore find substance in the contention of learned AGA that the statement is under some misconception also because they said person is a rustic villager.
32. Although it is also sought to be argued by counsel for the appellant that it emerges from the oral testimony of PW-2 that two policemen had arrived on the scene of occurrence soon after and therefore the first information report which is the basis of the case against the appellants was, in fact, the second report, also does not appeal to this court. PW-2 has clearly stated that one of the policemen who arrived on the spot asked the first informant to go and lodge a report in the police station and this appears to have been done promptly because the distance of the scene of occurrence from the police station is 14 km. These two policemen appear to be mere passer-bys. Therefore, the FIR lodged at 21.15 hours regarding an occurrence which took place at 6 pm or 18 hours and cannot be said to be belated. Nor can it be said to be anti-timed specially because the police arrived at the scene after the case was registered and the inquest was completed by 11:30 pm. It would also be relevant to note that the investigating officer has not been questioned as regards the discrepancy which arises from the statement of PW 1 that he had scribed the report the next morning. Only a general question has been asked as to whether the first information report was anti-timed.
33. The next contention of counsel for the appellant is that the incident took place in the month of October and that by 6 pm it would be completely dark. Therefore it would not have been not possible for the alleged eyewitnesses to have identified the shooters. A Google search in this regard reveals that on 4 October 1995 the sunset in Mainpuri was at 5.58 pm. The incident is thus alleged to have taken place at sunset and therefore the submission that there would not be enough light wherein the shooters could have been seen and identified, cannot be accepted. It does not become pitch dark immediately on sunset and it takes some time for darkness to set in completely. Besides, the shooters are the neighbours of the eyewitnesses which is an additional circumstance which goes against the appellants. There were well known to the eyewitnesses. This is an additional reason to accept that the shooters could be identified by the eyewitnesses even in low light or during twilight.
34. We also agree with the submission of learned AGA that the babool tree which was growing across the pathway on which the deceased was shot would not obstruct the view of the shooters as to was on the opposite side of the pathway. The body of the deceased was found under this babool tree by the investigating officer and this fact is mentioned in the site plan and is not being disputed by the defence. The eyewitnesses have also stated that the deceased after being shot fell down and died.
35. It has also been contended that the contents of the stomach belie the prosecution case and the statement of the prosecution witnesses that the deceased had had a meal only in the morning before he came to the field. The post-mortem report states that 2 ounces of fluid were found in the stomach and on being questioned, the doctor who conducted the post-mortem, has stated that this fact indicated that the deceased had not had a meal for at least 6 hours. The medical evidence therefore is not at variance with the prosecution case.
36. The contention that the injuries on the person of the deceased indicate that the shot was fired at him by a shooter who was on the same level and not from an elevated position is also not liable to be accepted. The testimony of the doctor is that the injuries on the person of the deceased could have been received even if the shot was fired from an elevated position. It would be relevant to note that as many as 26 pellets have been recovered from the body of the deceased. He had not suffered a bullet injury wherein it might have been possible in case there existed an exit wound, to speculate about the trajectory of the shot. In our considered opinion there is nothing on record which would enable this court to speculate in this regard also because there are no exit wounds. Even the submission of counsel for the appellant that the injuries on the person of the deceased could not have been caused by a short barrel gun cannot be accepted since the firearms used in the incident had not been recovered and as rightly pointed out by learned AGA the same is a hypothetical argument without any material basis for the same.
37. In view of the above discussion and since the submissions made by counsel for the appellants have been repelled and the evidence on record establishes beyond doubt that the appellants shot the deceased and there were clearly identified by the eyewitnesses as there must have been enough light for this purpose, at the time of occurrence. Moreover the appellants had a motive as they had beaten up the deceased earlier over the boundary dispute and a criminal case in that regard was pending at the time of occurrence.
38. Accordingly, the appeal is found to be without merit and is dismissed.
39. Rs.5000/- shall be paid to Shri P.K. Pandey, amicus curiae to conduct the case on behalf of the appellant no.1 and for assisting this Court.
Order Date :- 21.12.2021 C.Prakash / RKM