Reserved
Chief Justice's Court
Case :- CRIMINAL APPEAL No. - 714 of 1983 Appellant :- Ram Rakhan And Others Respondent :- State Of U.P.
Counsel for Appellant :- J.S. Sengar,Apul Misra,Dharmendra Pratap Singh,Nagendra Singh Bisen,Rahul Misra Counsel for Respondent :- A.G.A.
Hon'ble Govind Mathur,Chief Justice Hon'ble Vivek Varma, J.
To examine correctness of the judgment dated 26th February, 1983 passed by learned Vth Additional Sessions Judge, Allahabad in Sessions Trial No.250 of 1982, instant appeal is preferred.
During pendency of the appeal all accused persons except Ram Rakhan have died and appeal has already been abated qua them.
The factual matrix of the case as unfolded in the judgment impugned is that on 23th April, 1982 at 7.10 am a first information report was lodged at Police Station Saini, district Allahabad at the instance of Kailash Singh, S/o Ranjit Singh (PW1) against accused-appellants Ram Rakhan Singh, Munnoo Singh, Shiv Kumar Singh and Ram Singh. As per the averments contained in the first information report, Ranjit Singh, father of first informant Kailash Singh and Amar Singh his uncle along with Shiv Sharan Singh were sleeping on different cots in front of their house. A lantern was illuminating there. The informant Kailash Singh and Chhatrapal Singh, S/o Rampal Singh were sleeping and they left that place to sleep at about 11.00 pm. In the midnight, Kailash Singh on hearing screams of his mother and other family members, rushed towards his house, where he saw that Chhatrapal Singh, Virendra Singh, Mahesh Raj Singh, Nathu Ram Pandey were flashing the torch and in light of that Chhiddu Singh, Munnu Singh, Shiv Kumar all sons of Ashapal Singh and Ram Singh, S/o Sukh Ram were seen. They were beating Ranjit Singh, Amar Singh and Shiv Sharan Singh with Lathis. On being challgned, the accused persons fled from the spot. Ranjit Singh and Amar Singh were lying unconscious and Shiv Sharan Singh had certain injuries. The injured Ranjit Singh and Amar Singh then died after 15-20 minutes. As per the first informant, Chhiddu Singh and Ram Singh killed his father being having political rivalry. On basis of the information aforesaid, case was registered for investigation under Section 302 Indian Penal Code.
During the course of investigation, the corpus of both the deceased persons was subjected to autopsy by Dr. Ramesh Chandra (PW5). The injuries of Shiv Sharan Singh were examined by Dr. S.N. Gupta (PW3). As per the post mortem report (Ex. Ka.16), the cause of death of Ranjit Singh was shock and hemorrhage due to the injuries received. Same was the cause of the death of Amar Singh. The injuries received by deceased Ranjit Singh and Amar Singh were as follows:-
“The following ante-mortem injuries were found on the dead body of Ranjit Singh:-
(1) Contusion with swelling on whole of left side face, skull and back.
(2) Lacerated wound 1/4” x 1/4” x bone deep on the middle of forehead.
(3) Abrasion 3” x 1/4” on the middle of back of left fore-arm.
(4) Traumatic swelling with contusion and abrasion on the centre and the back of left elbow.
(5) Multiple contusions of shape of lathi on the lateral and anterior aspect of left thigh.
(6) Traumatic swelling over the left knee joint bone underneath was fractured.
(7) Three lacerated wounds measuring 1” x 1/4” x bone deep on the anterior aspect of middle of left leg.
(8) Traumatic swelling with abrasion in thecentre on the right knee joint bone underneath was fractured.
(9) Six lacerated wounds with contusion around on the middle of right leg measuring 1” x 1/2” x bone deep each.
(11) Traumatic swelling with contusion on the anterior aspect of right upper arm size 6” x 6”.
(12) Abrasion 1” x 1/2” on the right anterior illiac spine.
(13) Contusion 3” x 2” on the right upper chest near clavicle.”
“Ante-mortem injuries found on the dead body of Amar Singh:-
(1) Contusion on the left side of forehead, face and skull with both black eyes.
(2) Contusion 1” x 2” on the top of left shoulder.
(3) Contusion 3” x 1”, 2” anterior to injury no.2.
(4) Traumatic swelling with contusion on the left hand and the bone underneath lying was fractured.
(5) Lacerated wound 1 1/2” x 1 1/2” x bone deep on the left leg.
(6) Abrasion 1” x 1/2” on the anterior aspect of leg, 3” below the knee.
(7) Lacerated wound 2” x 3/4” on the middle of anterior aspect of right leg.
(8) Lacerated wound 1/4” x1/4” x bone deep on the right leg, 3” above the ankle.
(9) Contusion involving whole of back and waist and lower chest.
(10) Contusion with traumatic swelling on the middle of right upper arm bone underlying was fractured.
(11) Abrasion with contusion 2” x 1” on the top of right shoulder.”
The investigating agency also prepared a report of inquest, a site plan and other necessary documents and drawn statement of relevant witnesses as per Section 161 of Code of Criminal Procedure, 1973. The investigating agency after completing the entire investigation, filed a police report before the competent court alleging commission of an offence punishable under Section 302/34 and 323/34 Indian Penal Code. Being a sessions triable, the case was committed to the court of sessions. Learned sessions court on basis of the material available, framed a charge against the accused-appellants for commission of offence under Section 302 read with Section 34 and Section 323 read with Section 34 Indian Penal Code. The charge was read over and explained to the accused persons in hindi and on denial of the same, trial commenced as desired.
The prosecution supported its case with the aid of seven witnesses out of whom Kailash Singh (PW1) and Shiv Sharan Singh (PW2) were cited as eye-witnesses. Dr. Ramesh Chandra tendered medical evidence as he conducted autopsy on the corpus of deceased persons and Shiv Ratan Singh (PW6) narrated all the steps taken by him during the course of investigation being Investigating Officer. After completion of prosecution evidence, opportunity was accorded to the accused-appellant to explain adverse and incriminating circumstances in prosecution evidence. While availing the same, all the accused termed the entire evidence false and concocted. No evidence in defence was adduced.
Learned trial court after examining the entire material available on record, especially the evidence adduced by the eye-witnesses recorded conviction for the charge levelled and awarded sentence of life term imprisonment for the offence under Section 302/34 and one year rigorous imprisonment for the offence under Section 323/34 Indian Penal Code..
While pressing this appeal, the argument advanced by learned counsel appearing on behalf of the appellants is that the trial court failed to appreciate that the eye-witnesses in the matter are planted. They were not at all in position to witness the crime committed. It is further submitted that the entire story of the prosecution is concocted not only being based on the evidence planted but also for the reason of concealing the material evidence that would have unveiled the truth.
Per contra, learned Additional Government Advocate stated that the eye-witnesses narrated the entire incident with all confidence, as such there is no reason to disbelieve their testimony. The medical evidence too supports the prosecution story in entirety, hence the trial court rightly recorded conviction of the accused persons for an offence pnishable under Section 302/34 and 323/34 Indian Penal Code.
Heard learned counsel for the appellant and learned Additional Government Advocate for the State and also pondered the material available on record.
As already stated, the trial court while recording conviction mainly relied upon the evidence adduced by the eye-witnesses, namely, Kailash Singh (PW1) and Shiv Sharan Singh (PW2). On examination of the evidence adduced by the eye-witnesses and the site plan prepared by the Investigating Officer (PW6), there is no doubt that the eye-witness Kailash Singh was sleeping at the distance of about 300 steps from the place of occurrence. Though in the site plan location of the eye-witness has not been disclosed, but from narration of the facts by this witness read with positions given in the site plan, it is apparent that in between the place of occrrence and the location of eye-witness Kailash Singh, there is a house of Shiv Mangal Maurya and a small orchard where 25 trees were said to be standing. As per this witness, at about 00.00 hours in the intervening night of 22nd April, 1982 and 23rd April, 1982 on hearing screams of his mother and other family members, he rushed to the place of occurrence where he noticed presence of Chhatrapal Singh, Virendra Singh, Mahesh Raj Singh and Nathu Ram. He also noticed that the four persons named above, challenged the accused persons who were given lathi blows to deceased Ranjit Singh, Amar Singh and injured Shiv Sharan Singh. All the accused persons on being challenged, fled from the spot of occurrence. This witness on asking, stated that subsequent to the occurrence of incident Ranjit Singh and Amar Singh died within a period of 15-20 minutes. The Chowkidar of the village Ram Bhawan also came to the place of occurrence but no effort at that time was made to approach the police to lodge the first information report. The first information report was lodged in the morning, which as a matter of fact was in handwriting of Man Singh. Man Singh reduced in writing the narration of facts as stated by this witness. It would be appropriate to state that admittedly Man Singh is a resident of other village, which is at the distance of about 2 miles from the place of occurrence. He was not present at the spot but was called after commission of crime.
Suffice to state that this witness explained the delay of seven hours in informing the police on the count of fear due to murder of two family members and also on the count that the accused persons would have caused harm to him too. Pertinent to note that during the same period Man Singh was called from other village and first information report was scribed to him. The witness, if was in position to call the Man Singh then would have also informed to the police expeditiously. The explanation given to cause delay in filing first information report, thus, in our considered opinion is not acceptable. If he was in position to call Man Singh to the place of occurrence from the distance of 2 miles then nothing prevented him to inform the police at the police station concerned.
According to this witness himself, he arrived at the spot of occurrence on hearing screams of his mother and other family members on reaching there, he noticed presence of four other persons. It is quite strange that the prosecution did not chose to produce anyone from among the four persons presence of whom was noticed by this witness at the place of occurrence. The mother of this witness, who happens to be the wife of deceased Ranjit Singh and other family members who were said to be present at the place of occurrence too have not been produced in evidence. As a matter of fact, mother of Kailash Singh (PW1), other family members and the four persons whose presence was noticed at the place of occurrence by this witness would have been the best and most relevant witnesses to establish prosecution story. We failed to understand as to why the prosecution concealed the best evidence to establish its case. The argument advanced by learned counsel appearing on behalf of the accused-appellants that the actual culprits were not at all identified by any of the person said to be present at the place of occurrence, therefore, after considering all aspects, it was decided to name the accused persons in the case as they were having a political rivalry get some strength on basis of this concealment and also the calling of Man Singh from other village before lodging first information report.
On going through the site plan, we are having our doubts about witnessing the entire incident by this witness. It would be appropriate to state that this witness came to the place of occurrence by covering distance of about 300 steps (about 650 feet) and that must have consumed 4 to 5 minutes. But in this period four other persons arrived at the spot who too were residing in close vicinity but not less than 200-300 steps. It appears that this witness arrived at the spot of occurrence little later and on challenge by other persons the accused left the place. On going through the record, it is also noticed by us that even in the list of witnesses the four persons who arrived at the spot of occurrence at the prior to this witness and other family members were not cited as witness.
In light of whatever stated above, we are having reasonable doubt about the truth said to be advanced by prosecution and in believing testimony of this witness.
The other eye-witness is Shiv Sharan Singh, who is injured too. As per this eye-witness he was in deep slumber and at that time he heard some noise. On being awakened he saw the accused persons. During the cross examination, this witness stated that at the first instance he failed to recognize any person and he tried to run away from the site but on having some lathi blows he fall down on the cot and then he was not in position to witness the incident further. We failed to understand as to how he then came to know about presence of accused persons including Ram Singh with whom he has disclosed acquaintence. No explanation is also given by him as to how he identified by name the other three accused persons. This witness tried to develop his version of facts while getting his testimony examined by introducing availability of torch in the hands of Chhatrapal. Interestingly enough, he also mentioned about presence of Kailash Singh (PW1) at the spot of occurrence with torch, though as per Kailash Singh (PW1) himself he reached to the spot of occurrence subsequent to Chhatrapal Singh and three other persons and he was not having any torch with him.
In quite unambiguous terms this witness disclosed his acquaintance with accused Ram Singh but even on asking he failed to supply the reason for such acquaintance. The entire statement given by this witness as a matter of fact does not bear confidence as during cross examination he left over most of the vital points by mentioning that the investigating agency would have not noted down the facts stated by him during the course of investigation.
It is further pertinent to note that as per medical evidence available, this witness is having quite simple injuries on his back. As a matter of fact the abrasions shown are marks of beating. On having such abrasions a young man can very well go ahead to protect his companions. Not only this, he would have accompanied to Kailash Singh (PW1) in giving information to the police. There is no doubt about the occurrence of the incident but testimony of this witness also suffers from reasonable doubt to establish participation of accused persons in the crime in question.
In light of whatever stated above, we are of considered opinion that a reasonable doubt exists in accepting the prosecution story.
Accordingly, the appeal is allowed. The judgment dated 26th February, 1983 is set aside. The accused-appellant Ram Rakhan Singh is acquitted from the charge relating to commission of offence under Section 302/34 and 323/34 Indian Penal Code. The conviction recorded under the judgment aforesaid and the sentence awarded too are set aside. The accused is availing bail, let the bonds and sureties furnished by him be discharged.
Order Date :- 26.9.2019 Bhaskar (Vivek Varma, J.) (Govind Mathur, C.J.)