Reserved
Court No. - 48
Case :- CRIMINAL APPEAL No. - 1979 of 1981 Appellant :- Ramesh Respondent :- State of U.P.
Counsel for Appellant :- Mohan Chandra,A.B.L.Gaur,Ajay Kumar Dwivedi,B.D.Sharma,Rajeev Sharma,S.P.Sharma Counsel for Respondent :- D.G.A.
Hon'ble Anjani Kumar Mishra,J. Hon'ble Syed Aftab Husain Rizvi,J.
Heard Shri Rajeev Sharma, learned counsel for the appellant and learned AGA for the State.
The instant criminal appeal is directed against the judgement dated 01.09.1981 passed in Sessions Trial No.206 of 1981 on 01.09.1981 convicting the appellant, Ramesh under Section 302 IPC and sentencing him to life imprisonment.
A first information report was lodged on 12.05.1980 at 08.15 a.m. at Police Station Sakit, District Etah, by one Ram Swarup regarding an occurrence alleged to have been taken place on the intervening night on 11/12.05.1980 at 2 a.m. It is stated that the first informant and his brother Khunnu Lal and deceased Kishan Behari were sleeping in their Chaupal. He woke up on hearing the cry of his brother, Kishan Behari and saw Ramesh, Om Prakash, Chandra Pal and Babu standing near his brother Kishan Behari. Ramesh and Babu were armed with pharsas, Ramesh was heard saying that Kishan Behari had deposed against him and therefore, he would not be left alive. So saying, Ramesh gave two pharsa blows to Kishan Behari and thereafter one blow was struck by Babu. On the shouting of the persons present, the four got down from the Chabutara and escaped towards east. The incident was witnessed by the first informant, Sri Niwas, Khunnu Lal, Mushi Lal son of Munna Lal and other persons.
The police submitted a charge sheet only against two persons, namely, the appellant Ramesh and co-accused Babu. The matter was committed and the trial Court framed charges against them under Section 302 IPC.
During trial, six witnesses were examined on behalf of the prosecution.
PW-1, Ram Swarup, the first informant and brother of the deceased has deposed that Kishan Behari was sleeping on the floor of baithaka in front of his house. The first informant was sleeping besides him on a cot along with his brother Khunnu Lal. At about 2.p.m., the accused come and assaulted his brother, whose shouts woke up the first informant. Using his torch, he saw accused Ramesh and Babu armed with Pharsas while Om Prakash and Chandra Pal had armed with lathies. Ramesh assaulted his brother with pharsa twice while Babu inflicted one blow. He and his brother Khunnu Lal shouted. Hearing the shouts, Sri Niwas and Munshi Lal arrived on the spot. Even Sri Niwas had a torch. Sri Niwas was sleeping on the floor of his house. The accused thereafter escaped towards east. After the accused ran away, the first informant went to his brother, who was still alive but died about 10-15 minutes later. The report of the incident was scribed by Om Prakash and he put his signature thereon. About 12-14 days prior to the incident, Kishan Behari had deposed in a civil suit against Ramesh and Om Prakash, due to which, there was enmity between them. Kishan Behari was sleeping on a cot, over which a dari was spread and that his blood was split on the ground, cot and dari.
During cross-examination, he stated that he is an employee in the Tehsil and works with the Amin. He has signed the report which was scribed on his door step. The scribe Om Prakash is resident of village Ummedpur, situated at a distance of 2 kms. from the village of the first informant. Ummedpur does not lie on the way while going from his village to the police station. He is not aware of the extent of the education received by Sri Niwas. The village in question, namely, Rijore has a population of 3000 to 4000. The scribe had come to the village in connection with the Assembly Elections and stayed back that night. On hearing of the incident he came to the house of the first informant at about 5 a.m. The report was scribed at 6 a.m. after sunrise and was lodged at the police station. The witness is uneducated and therefore he asked Om Prakash to scribe the report. He went to the police station with the Chaukidar. His father and Har Prasad were real brothers. Subsequently he has stated that they are not real brothers. He is unaware, whether Sri Niwas is son of Har Prasad. He does not know the parentage of Sri Niwas, who is resident of village Rijore. Their houses were situated at a distance of 20 yards. He and the deceased had separate but adjacent houses. He owns a three cell Geep torch. He has expressed ignorance as to whether his and Sri Niwas, torches were taken into custody by the police. He and Sri Niwas never signed any memo in this regard. He has denied knowledge that on the night of occurrence, the sister of the accused was getting married and the barat had arrived that night. Kishan Behari had deposed in a case filed by Ambar Lal. He came to know of this from the utterance of the accused at the time of incident. He has also stated that he and his brother Khunnu Lal was sleeping on the separate cots, resiling from his earlier statement, that he and Khunnu Lal was sleeping on the same cot. He has also stated that it is true that Sri Niwas was sleeping on the floor in front of the Baithaka. The deceased was struck only three blows and he woke up on the hearing of the shouts of his brother. Khunnu Lal is peon in Aliganj situated at a distance of 50 miles from Rijore. Witness Munshi Lal is the resident of village Ibrahimpur, which is the adjoining village separated from Rijore only by a rasta. Munshi Lal had come to attend a marriage and had slept on the floor in front of the house of Khunnu Lal.
PW-2, Sri Niwas has stated that his house is situated at a distance of 6 to 7 yards from the house of the deceased, Kishan Behari. He was sleeping in front of his house while the deceased was sleeping on his chabutara along with Ram Swarup, Khunnu Lal and Munshi Lal. At about 2 a.m., the accused came to the chabutara of Kishan Behari. On hearing shouts, he woke up and saw the four accused. Babu and Ramesh were armed with pharsas and Om Prakash and Chandrapal had armed with lathies. He saw them in the light of his torch. Ramesh struck two blows while Babu struck one blow to Kishan Behari. The accused ran away towards east. Kishan Behari was bleeding and died after 2-3 minutes. Apart from him, Ram Swarup was also using his torch. There is a litigation between Ramesh and Om Prakash. When he woke up, he saw the accused on the chabutara of Kishan Behari. He did not show his torch to the police nor any memo was prepared. He did not sign any memo. He left for work at about 6-7 a.m. He was never questioned by the investigating officer. The Chaukidar had informed the police and the police had arrived to the village. Munshi Lal is resident of Mauja Nagariya. He has also expressed ignorance that barat for the marriage of the sister of the accused had arrived on the date of the incident. He had seen Munshi Lal sleeping on the Chabutara of Kishan Behari. Ram Kishan was not sleeping there. The accused came, assaulted the deceased and immediately ran away. He has denied the suggestion that he was not present in the village on the night of occurrence and is deposing falsely as he is relative of the deceased.
PW-3, Jashpal Singh has proved the chik FIR as also the consequent GD entries. He has not been cross-examined by the defence.
PW-4, Munshi Lal is aged about 70 years and was sleeping on the door step of Kishan Behari. He woke up on hearing the shouts of Kishan Behari and saw Ramesh and Babu armed with Pharsas while Om Prakash and Chandra Pal were armed with lathies. Ramesh struck one blow and Babu also struck one blow. He saw the accused in the light of the torches of Ram Swarup and Sri Niwas. After the accused ran away, he saw Kishan Behari, who remained alive for about 10-15 minutes. Kishan Behari was sleeping on a cot and there was blood on the cot, dari and floor. On the night of the incident, there was a marriage in the house of Chandra Pal, who is his Jajman. After his work was over, he stayed back and that he knew the accused from before. During cross examination, he has stated that during the 15 minutes after the incident, when Kishan Behari was alive, he did not talk to him. His family members were talking to him. He is unaware of what the family members enquired from Kishan Behari. Immediately after the incident, he went home. The next evening, Sub Inspector met him and made inquiries. He did not inform the Sub Inspector about the marriage in the house of Chandra Pal. He is resident of village Ibrahimpur, which is situated at a distance of one furlong from the scene of occurrence. He has denied the suggestion that he came to the scene of occurrence on hearing the hue and cry. He denied making any such statement to the Sub Inspector. He is also unaware as to why, such a thing was mentioned in his statement recorded by the Investigating Officer. He had came to the marriage of the son of Chandra Pal, whose name is Daya Shankar. The marriage was over by 11 p.m., Chandra Pal told him that he would call him when required and therefore, he did not go home. There was a large crowed at the house of Chandra Pal and there was no space there. He got a cot at the scene of occurrence and hence stayed and slept there.
He has also stated that he as two sons. On the night of incident, the marriage of his son was held. The barat had left on 10th and had returned on 11th. He has come to depose after issuance of bailable warrants by the Court. He has denied the suggestion that he is deposing falsely after accepting payment from the complainant. He has also denied that his son got married on the night of the incident or that he was present in Nagla Khinni, Police Surawali in that connection, that night.
PW-5, S.K. Dixit, Sub-Inspector is the investigating officer. He started investigation on 12.05.1980 and recorded the statements of the first informant. Thereafter, he went to the spot and completed the inquest by 12.30 p.m. and sealed the body. He prepared the various documents and handed over the body to constables Tahar Singh and Rameshwar Singh for taking it for postmortem. He thereafter recorded the statements of other witnesses and inspected the spot and prepared the site plan. He also inspected the torches of Ram Swarup and Sri Niwas, which were is working in order. He prepared memos and returned their torches in the supurdagi of their owners. He also collected the ban of the cot and dari and sealed them. On 04.06.1980, he recorded the statement of accused Om Prakash and Ramesh after they were released on bail. Chandra Pal and Babu had not been arrested till then. He filed the charge sheet against Ramesh and Om Prakash on 01.07.1980 and thereafter, he has transferred.
During cross-examination, he has stated that in the site plan, he has shown that Munshi Lal saw the occurrence from the rasta and not the chabutara. During investigation, he did not come to know that the marriage of the sister of the accused had taken place on the night of the incident. He has also stated that Munshi Lal had informed him that he came to the spot from his house, after hearing a hue and cry.
PW-6, Dr. N.K. Agarwal conducted the postmortem and has proved it. He conducted the postmortem on 13.05.1980 at 08.20 p.m. The deceased was aged about 65 years and had been dead for about one and 1/4 days. Rigor mortis had passed from the upper extremities and was passing from the lower extremities. Decomposition had not started. The following injuries was found on the body of the deceased -
1. Incised wound 15 cm x 2 cm x buccal cavity deep on the right cheek starting from upper lip and extending up to the neck below the ear.
2. Incised wound 7 cm x 3 cm x bone deep on right side lower jaw.
3. Incised wound 7 cm x 3 cm, 5 cm below the right ear on the neck.
During internal examination, below injury no.3 was present and below vessel was cut. Light maxilla was fractured. The buccal cavity contained three oz. of liquid and clotted blood. The small intestines were present while large intestines were full of fecal matter. The injuries on the person of the deceased were caused by a sharp-edged weapon like, pharsas and were enough to cause death. He also opined that it was possible for the injured to have remained alive for 10 to 15 minutes after the injuries were sustained.
The accused were examined under Section 313 Cr.P.C. Ramesh has denied the allegation against him and has stated that he had deposed in a case under Section 433 against Kishan Behari and Punnu Lal @ Daya Shankar and therefore, had been falsely implicated due to enmity. On the night of the incident, his sister was getting married and that the Barat had arrived that night.
The trial Court on the basis of the evidence produced convicted the appellant as recorded above. Co-accused Babu was afforded the benefit of doubt.
The contention of counsel for the appellant is that four persons were named in the first information report. Only two were tried in the Sessions trial in question, Babu was acquitted on the same evidence. The case set up by the prosecution is bogus.
The incident is alleged to have taken place at 2 a.m. but FIR was lodged belatedly at 08.20 a.m. Admittedly, as is clear from the statement of PW-1, it was a dark night and not a moon lit night. No source of light has been disclosed apart from the torches allegedly used by the first informant and Ram Niwas. Both have denied, their signatures on the memo prepared by the Investigating Officer regarding these torches. In any case, torches have not been produced during trial.
The statement of PW-1 and PW-2 is contradictory. Om Prakash and Chandra Pal were armed with lathies but this does not find any mention in the first information report or the statements recorded under Section 161 Cr.P.C. and is a clear improvement. There is no clarity as to where the deceased was sleeping. The statement of PW-1 in this regard varies at different stages of his deposition. He has initially stated that he was sleeping on the floor. Subsequently during cross-examination he states that the deceased was sleeping on a cot. These discrepancies show that he was not an eye witness of the incident.
He has also submitted that Khunnu Lal also an alleged eye witness, has not been produced by the prosecution.
The motive of the crime is that the deceased had deposed against the accused in a civil case. However, documents have been filed by him to show that the case wherein the deceased is alleged to have deposed had no connection with the accused. This has also been observed in the judgement of the trial Court, itself.
The presence of PW-3 is also highly doubtful because he is resident of another village and his house is situated at a distance of one furlong from the site of occurrence and the prosecution case that he was sleeping on the chabutra is highly unnatural.
In any case, the marriage of the sister of the accused was taking place on the same night and this factum has not been categorically denied by PW-1. He has merely expressed ignorance in this regard during cross-examination.
Moreover, the spots from where, PW-3 is alleged to have seen the incident varies in the statement of the different witness. His son was get married on the same day and therefore, his presence on the spot cannot be accepted.
PW-2, Sri Niwas is a relative of the informant and therefore, an interested witness. He has categorically stated that his statement was never recorded under Section 161 Cr.P.C. as he never met the Investigating Officer. He has also denied that his torch was examined by the Investigating Officer. The appellant therefore, is liable to be acquitted.
It has also been submitted that the first information report is anti timed because the various memos prepared do not bear the case crime number.
Learned AGA on the other hand has contended that non mention of the case number on the various memos prepared in the case is at best latches, on the part of the Investigating Officer.
The incident was witnessed by the persons on the spot in torch light. PW-4 is an independent witness. It is wrong to allege that marriage of the son of Munshi Lal, PW-4 took place on the night of the incident. In fact, the marriage took place earlier. The barat had left on 10th and had returned on 11th as stated by him. PW-4 is an independent witness and therefore, his testimony cannot be doubtful.
AGA has also relied upon the statement of PW-5, the Investigating Officer, who has stated that he has recorded the statement of Munshi Lal on the spot and also inspected the torches of Ram Swarup and Sri Niwas, which were in working order. He prepared a memo in presence of the owners and thereafter gave them in their supurdagi. These memos have been marked as Ext. A-12 and A-13. Under the circumstances, there was enough light to identify the accused.
The incident is of 2 a.m. when the deceased and accused were all sleeping. The eye witness alleged to have woken up hearing the cries of the deceased and saw the accused in torch light. The two torches used to see and identify the accused have not been produced during trial. As a consequence, the alleged source of light has not been proved.
Moreover, the eye witnesses are said to have woken up on hearing cries of the injured when he was being assaulted. The injuries are on his cheek, neck and jaw, with the right Maxilla fractured by the blow. The buccal cavity was found to contain three ounces of blood. The moot question therefore, is whether the injured would have been in a position to speak or utter any sound.
Three alleged eye witnesses have been examined by the prosecution. PW1, Ram Swarup is brother of the deceased and the first informant. His testimony is under a cloud as he is an interested witness and also because he has given varying accounts as to where the deceased was sleeping, whether he was sleeping on the floor or on a cot. In his examination-in- chief, he stated that the deceased was sleeping on the floor while the other two brothers, PW1 and Khunnu Lal were sleeping on the same cot. Later during his testimony, he has stated that three were sleeping on separate cots. Such varied deposition of the spot position is not natural for an eye witness and casts a doubt on his presence on the scene of occurrence.
PW-2, Sri Niwas is also related to the deceased and his house is situated at distance from the scene of occurrence. He also alleges that he woke up on hearing shouts and saw and identified the accused in his torch light. Again this torch has not been produced during trial. For this reason alone, it is not safe to rely upon his testimony. Moreover, he has stated that he was never questioned by the Investigating Officer, who never met him.
The third eye witness PW4, Munshi Lal, who is a Nai, has stated that he slept on the chabutra where the incident took place as he did not find any place to sleep at the place of marriage for whose ceremonies, he had come. He has also stated that all ceremonies were over by 11 p.m. Yet he did not go home, merely a furlong away and slept on the chabutra in question.This again appears highly unnatural and renders his testimony doubtful.
The prosecution case is rendered doubtful also by the fact that a person whose sister is getting married and whose barat has arrived will find it a convenient time and occasion to leave everything and go out to commit a murder.
The above discussion, in our considered opinion casts a serious doubt upon the prosecution case. The appellant is entitled to the benefit of doubt as the case against him has not been proved beyond reasonable doubt.
Accordingly, this appeal is allowed. The judgement and order of the trial Court is set aside and the appellant Ramesh is acquitted of the charges against him. He is entitled to be released forthwith.
Let a copy of this judgement, along with the lower Court record be set to the Court below for its compliance.
Order Date :- 29.10.2021 RKM