Allahabad High Court
Yad Ram And Hoti Both Sons Of Radhey Shyam vs State Of U.P. on 29 April, 2004
Bench: S.K. Agarwal, Imtiyaz Murtaza
JUDGMENT
S.K. Agarwal and Imtiyaz Murtaza, JJ.
1. Heard learned counsel for the appellants and learned A.G.A.
2. The present criminal appeal was filed by two appellants Yad Ram and Hoti against their conviction made by Ist Additional Sessions Judge, Mathura dated 18.9.1981 passed in S.T. No. 141 of 1980 convicting the appellants under Section 302/34, 326/34 and 324/34 I.P.C. They were sentenced to undergo imprisonment for life under the first count, three years' R.I. under the, second count and one year R.I. under the last count. The sentences are to run concurrently.
3. The brief facts of the case, as available from the F.I.R., are that on 25.10.1979, a quarrel between Jaidev son of Ram Swaroop on the one hand and Satto son of Radhey Shyam on the other hand had occurred in the course of a playing. This incident occurred at about 5.30 P.M. Mod Ram, uncle of Jaidev, came to his rescue. On doming to know of this quarrel, Yad Ram alongwith licensed gun of his father and his brother alongwith a country made pistol came to the spot. Some heated exchange of words took place between them and Jai Ram and Moti Ram etc. These appellants thereafter went up to the roof of Tej Ram and hurled brickbats from there. They later on opened fire upon Jai Ram to kill him. Seven-eight fires in all were allegedly made by them. One of the shot discharged from the gun of Yad Ram caused injuries to Sita Ram, grandson of Daya Nand on his check. The other two, who suffered injuries, were Satya Bhan and Praveen Kumar, who were in close proximity of Sita Ram. Sita Ram died as a consequence. It is stated that these 3 boys were on the roof of Raman Lal. The incident was witnessed by Jai Ram, son of Kishori Shyam, Rameshwar son of Churaman, Raman Lal son of Manisararm, Devi Ram son of Parmanand and the informant. The informant dictated his report to Rameshwar, P.W. 3 and proceeded for the police station soon thereafter. A case was registered at the concerned police station on 25.10.1979 at 8.10 P.M. The distance of the police station from the place of occurrence was 9 Kms. It has wrongly been shown in the memo, appended to the first information report, as 25 Kms. Head Moharrir, Rameshwar Singh, prepared the check report Ex. Ka.-8, on the basis of the written report handed over to him. This written report is Ex. Ka.-1. The case was registered in the General Diary vide report No. 35. The copy of the said report is Ex. Ka.-9. The two injured Praveen Kumar and Satya Bhan were sent to Primary Health Centre, Chhata for their medical examination and treatment. They were subjected to x-ray examination on 27.10.1979. No foreign body was seen in the injuries of Satya Bhan. No x-ray examination of the other injured Praveen is available on the record.
4. Satya Bhan was medically examined by Dr. R.C. Gupta, P.W. 3, on the same night at 9.00 P.M. There were two firearm injuries on the left thigh upon his person. None of the injuries had any blackening or tattooing. They were kept under observation. Praveen was medically examined by the said doctor at about 9.45 P.M. on the same might. Single penetrating wound on the posterior surface of thigh was found on his person. No blackening or tattooing was noticed. His injury was also kept under observation.
5. The dead body of Sita Ram was subjected to inquest proceedings and a memo was prepared by the Sub Inspector Liyaqat Ali, it is Ex. Ka. 9. The inquest was commenced at 9.00 P.M. and was concluded at 10.00 P.M. on the same night. In this inquest memo the distance of the place of occurrence from the police station is shown as 8 Kms. After completing the proceedings of inquest and dispatching the dead body for the post mortem at 10.00 P.M., the investigating officer, P.W. 9, proceeded to record the statements of Daya Nand and Rameshwar. He prepared the site map, Ex. Ka.-14. Satya Bhan's statement was recorded on 7.11.1979. After this the investigation was transferred to Paras Ram Yadav, S.H.O. P.W. 9 copied the inquest memo in the case diary, prepared site map etc. during the night in the gas light. He admitted that he did not find any evidence of brick batting on the spot. He also did not recover any pieces of bricks or spent cartridges or pellets from the spot. He found some marks of pellets on the roof of Raman Lal He did not find it at any other place. The roof of Raman Lal was cemented. He had collected blood stained earth and simple earth from there. He had taken the search of the house of the accused but did not prepare any memo because nothing was recovered from their house. He made no reference of this fact in the case diary. He admitted that in the Gher of Roop Ram and Jai Ram. Neem trees in the height of 10 to 12 feet were standing. According to him Ved Ram's roof is about 20 - 22 feet in the height. The road on the elevation is levelled. Approach to the house of Raman Lal is at a considerable height. According to him Tej Ram's roof is 3 - 4 feet higher than Raman Lal's roof. Tej Ram's roof is on the slope, downwards. He admitted that the witnesses of Panchayatnama of Sita Ram, are arrayed as eyewitnesses in the trial court. He also admitted that in column No. 2 in the inquest memo, substance of the F.I.R. is not disclosed and only cause of death was given. He denied that in the letter for medical examination (Chitthi Majrubi) of Satya Bhan crime number was available. It is not so available in the Chitthi Majrubi of Praveen. He denied that this crime number in the Chitthi Majubi issued for Satya Bhan was put in long afterwards. It is in different ink is also denied by him. The eye witnesses were witnessed of the inquest because none other was available. He admitted that Rameshwar told him that brickbats were hurled from both sides. He admitted that he reached on the spot at 9.00 P.M. Some 5-16 witnesses were available on the spot including some ladies. He denied that he colluded with the informant and made a collusive investigation. He denied to have learnt during the investigation that Radhey Shyam, father of the appellants, had also suffered injuries in the incident. He admitted that he had received the copy of the bail application of these accused persons and submitted a report on the said application. The investigation was going on at that time. He denied that he learnt from the bail application that Radhey Shyam had also suffered injuries. The bail application contained this fact is a proved fact.
6. The prosecution in support of its case examined 3 ocular witnesses. They are Daya Nand, P.W. 1, father of deceased Sita Ram, Satya Bhan, P.W. 2, nephew of D.W. 1 Ramah Lal and Rameshwar, P.W. 4. Rest of the witnesses are formal in nature. Two of whom are Dr. R.C. Gupta, P.W. 3, who conducted the medical examination of the two injured Satya Bhan and Praveen Kumar and Dr. S.P. Bhatnagar PW6 who conducted the autopsy on the body of Sita Ram, a child aged about 4 years. Dr. Dinesh Kumar is a radiologist who had proved the x-ray report of Satya Bhan. Liyaqat Ali, P.W. 9 is the first investigating officer who completed almost the whole of the investigation. Parash Ram Yadav, P.W. 8, submitted the chargesheet only in the case.
7. The defence had denied the prosecution case and asserted that their prosecution is false and is based upon enmity. The incident did not occur in the manner alleged by the prosecution. Yad Ram, appellant No. 1, had stated further that there was no person in the village on the date of occurrence. Hoti, appellant No. 2, has come out with a counter case. According to him quarrel took place between Jaidev and Satto on the date of occurrence and when his father intervened Jai Ram, Keshav alias Kishori Shyam and Ramso had assaulted his father Jairarm had a country made pistol. They opened fire upon his father from the Nohare of Thakuri. His medical examination was conducted on the next day and he made an application to the Superintendent of Police. The application was brought on record by the defence. It is Ex. Kha-1. It is the defence version given out by Hoti, appellant. It finds some corroboration from prosecution evidence too it is urged by defence. It is also contended by learned counsel for the appellant Sri S.S. Tewari assisted by Sri Rajul Bhargava that the prosecution has not come out with clean hands regarding the place of occurrence and manner of assault. They have concealed the truth from the court and presented a coloured version which does not find corroboration from their own statements and from the statement of D.W. 1 Raman Lal. Rameshwan PW4 who was cited as a witness in the F.I.R. and D.W.3 Radhey Shyam. This Radhey Shyam was deliberately not arrayed an accused by occullar witnesses. The next contention is that the prosecution has changed the place of firing from ground to the roof of Tej Ram. No shooting was resorted to from that place is apparent from the medical reports and post mortem report. The distance between the two houses, Tej Ram and Raman Lal, being 63 paces.
8. The evidence of Daya Nand, P.W. 1, grand father of deceased Sita Ram, is that at about 5.30 P.M. he was standing alongwith Rameshwar, Raman Lal, Jai Ram and Devi Ram on the Chowk (open space) in the locality in village Khyara. Yad Ram and Hoti, appellants, climbed on the roof of Tej Ram. Yad Ram was possessed with his father's licensed single barrel gun and Hoti had a country made pistol. The appellants first brick-batted from that roof and then were on the roof of Raman Lal suffered pellet injuries as a consequence of the above firing. Sita Ram died on the spot. He further stated that half an hour before the incident a quarrel between Satto son of Radhey Shyam and Jai Dev son of Ram Swaroop had taken place, Moti son of Kishori Shyam intervened from the side of his nephew and saved him. Jai Ram is uncle of Jai Dev. The assailants fired with an intent to kill Jai Ram, though he was not a party at in the quarrel. The quarrel was between Satto, brother of the appellants, and Jaidev, Moti had sided with Jaidev. He got the report scribed from Rameshwar. He identified his signature on Ex. Ka.-1, written report. He alongwith injured proceeded for the police Station. The report was handed over to Sub Inspector. The Sub Inspector visited the village and collected blood from the roof of Raman Lal and also took plain earth. Recovery memo for the said recovery was also prepared. He has put the signature on the said memo, Ex. Ka.-2, According to him, the quarrel between Jaidev and Satto took place in the open space on the ground. At that time Jai Ram was inside his house. The children were on the roof of Raman Lal. The road that lead West-North goes to Raman Lal's house. The house of Raman Lal from the triangular crossing is about 100 paces. The lane from the crossing in the North is on an elevation. The house of Raman Lal is on a considerably higher level. According to him in the land of Roop Ram and Jai Ram Neem trees of 12 - 14 feet height were standing. According to him the roof of Tej Ram was 20 feet high from the ground. The roof Of Raman Lal is cemented. According to him, blood was taken by breaking the cemented floor of the roof. He evaded answer to the question whether any soil was also collected from there or not. He, Rameshwar and Devi Ram were standing on the platform in front of the house of Mohan Shyam. When the fires wore made he felt fear. He took shelter behind the northern wall of Mohan Shyam's house but denied that they had entered this house. They had taken shelter behind the house of Gaya Lal which is behind the house of Mohan Shyam. In this view of the matter it is asserted by learned counsel for the appellants that they cannot see the position of the barrels when the fires were made. The witness changed his position. He further stated that he cannot say whether the fires were made towards Jai Ram but admitted that he had stated in the report that the fires were discharged to kill Jai Ram by the appellants. Now he had modulated this part of his case and stated that initially fires were made on Jai Ram but he hid himself. After Jai Ram hid himself, 3 - 4 fires were further made. He admitted that he cannot say that the appellants had made 7-8 fires on Jai Ram and Moti Ram. He stated that appellants hurled some 10 - 20 brickbats from the roof of Tej Ram. As soon as the brickbats were hurled Moti Ram and Jai Ram ran towards their house. Then stated that when one or two fires were made Jai Ram and Moti Ram rushed inside their house. Brickbats did not cause any injury to any one. When the brickbats were hurled, no one was present in the open field. They were all standing by the sides of the route. When the appellants hurled brick bats Jai Ram and Moti Ram were running to safety. As soon as the brickbats were hurled, they started to rush to safety from the open, space (Chowk). House of Jai Ram and Moti Ram were 25 - 30 steps from the Chowk. When the brickbats were hurled some 10 - 20 villagers were present. He further admitted that Jai Ram and Satto grappled with each other. Moti Ram and Jai Dev separated them. Satto and Jai Dev did not go to their house and remain stationed at the place of quarrel. The children were separated by Moti Ram. When the children were separated by Moti Ram, appellants were not there. They came to the spot on hearing about this interference by Moti Ram. The appellants on their arrival asked Moti Ram why they quarrered. Some heated exchange of words took place between them. This witness at that time was standing near the house of Prabhu. When the children quarreled he was in the open space. When brickbats were hurled he went to the platform of Prabhu. Radhey Shyam was not present on the spot and he did not suffer any injury as per him. According to him, he had gone to attend the date in his case. According to him pellets were embedded on the wall of Raman Lal. He admitted that it is true that 7 - 8 fires were made to kill Jai Ram and Moti Ram. If it is true, it is contended by learned counsel for the appellants, then the fires were made downward and the injuries suffered by the 3 children Sita Ram, deceased, Praveen and Satya Bhan were improbable in view of this statement on the roof of Raman Lal. There seems to be some substance in the contention made by learned counsel for the appellants. He denied that the persons standing on the roof of Raman Lal were not visible from Tej Ram's roof. The most crucial fact admitted by this witness demolishes the first information report. According to him, he reached the police station alongwith the injured boys at about 9.00 P.M. He remained sitting outside the police station until 10.00 P.M. When the injured were sent to the hospital and who took them there is not within his reckoning. When he reached on the roof of Raman Lal his grandson (daughter's son) was dead. The others arrived there little thereafter. The report was dictated by him an hour after he reached the roof of Raman Lal. He did it when Manohari asked him to do. so. He admitted that he folded the report before going to the police station but further staled that there is no fold visible on the sheet of paper on which the F.I.R. was prepared. According to him, the Sub Inspector arrived in the village at about 10.00 P.M. He further stated that when the dead body was brought to the police station he also went alongwith Sub-Inspector to the police station though he denied that his signatures on any paper was obtained by the Sub Inspector at the police station. He also denied that the report Ex. Ka.-1, was prepared after consultation subsequently. He also denied the defence case that Moti Ram, Jai Ram and Kishori Shyam etc. assaulted Radhey Shyam with country made pistol, Lathi and Farsa and injured him. He further denied the defence case that Jai Ram fired upon Radhey Shyam from the courtyard of Thakuri. He also denied that relations between Tej Ram and Radhey Shyam were strained. He admitted that Raman Lal is brother of Lala Ram. He stated that Parmanand has some a litigation over some property with Radhey Shyam and the cases are pending in the court of Dy. Collector. He also has his flat. He had appeared against Radhey Shyam in the said court in evidence for Parmanand. He denied that he cited Raman Lal and Lala Ram as witnesses because he had given evidence for them in the case against Radhey Shyam. He also denied that the incident did not occur on the roof of Raman Lal.
9. From his evidence, as earlier Stated, the time of preparation of F.I.R. is rendered open to serious doubt. According to Sub Inspector he reached the spot at 9.00 P.M. after the registration of the case at 8.10 P.M. at the police station. Immediately on his arrival he prepared the inquest memo, Ex. Ka. 9. It was concluded at 10.00 P.M. and the body was despatched to the mortuary. According to this witness he arrived at the police station at 9.00 P.M. and remained sitting outside the police station until 10.00 P.M. He also did not know when the two injured were sent for their medical examination and who took them to the hospital. This clearly indicates that the injured were not sent to the hospital in his knowledge nor the F.I.R. could be registered at 8.10 P.M. as shown in the G.D. The sub inspector also did not come to the spot at 9.00 P.M. In the inquest memo Raman Lal was shown as the informant at number of places but the word Vaadi was scored out by the sub inspector. Unfortunately the defence has not subjected this sub inspector to any cross examination on this aspect. However, since the inquest memo is proved, we can take notice of the said fact and of some other facts also. In the inquest memo time of lodging of report of the case is shown at 8.10 P.M. and the time of initiation of the inquest at 9.00 P.M. Both these facts were transcribed in a different pen. It is clearly discernible by the naked eye. A.M. apparently was converted into P.M. Here No mention of the crime number was made in the inquest memo on the second page. The informant and P.W. 4, Rameshwar, are the witnesses of the inquest. Yet in the inquest memo there is no brief description (summary) of the facts of the case. In the inquest memo except Panchayatnama, no other paper find any mention therein. The dead body reached the headquarter on me the next day at about 10.15 A.M. on 26.10.1979. According to. the note of the doctor on Form 33, the papers were received at 11.00 A.M. on 26.10.1979. Thus, from the statement of this witness it is apparent that the F.I.R. could not be registered as alleged at 8.10 P.M. Apart from it, it has been clearly admitted by him that 7 - 8 fires were made by the accused persons upon Moti Ram and Jai Ram who were uncles of Jaidev. Though only Moti Ram intervened for Jaidev against Santto. If all these fires were made upon Jai Ram and Moti Ram, who were on the road and not on the roof of this house, how these 3 boys have suffered injuries at the roof of Raman Lal. It is further borne out from the fact that if the roof of Tej Ram was 3 - 4 feet high from the roof of Raman Lal and if the shots could have been fired from there, injuries of these 3 children including deceased Sita Ram would have shown a downward trend which is not available from their injury reports and the post mortem report. Thus, it is apparent that the prosecution positively had coloured its version. No one has suffered any injury in the brick batting. Moreover, the case of brick-batting seems to be wholly false and cooked up. The investigating officer had clearly admitted, as earlier discussed, that he did not find any evidence of hurling of brickbats on the road, vacant place, which is called as Chowk. It is admitted that Moti Ram and Jai Ram, who were on the road, ran to safety on hurling of brickbats as alleged by this witness and after one or two shots in the modulated statement by this witness. He admitted that he had gone to court. His testimony further shows that he was not knowing the import or consequence of his evidence. He is a highly gullible witness and was anxious to make any improvement in his testimony.
10. In this view of the matter we are not in a position to rely upon the testimony of this witness. He had certainly not come out clean breast and had provided the court a coloured version in collusion with the police. Enmity with Radhey Shyam was in the back of his mind. The report was prepared after he reached the police station alongwith the dead body as has been admitted by hint After the preparation of inquest, the dead body was not straight away despatched to the mortuary or to the headquarter but was brought to the police station and probably was despatched in the early morning that is why the dead body had reached there after 10.00 A.M. on the next day i.e. 126.10.1979. Thus, we discard his testimony without any hitch.
11. Absence of any pellet in the medical of two injured, though there is no exit wound in the injury report of Satya Bhan, P.W. 2, injured witness admitted by the doctor. It is noticeable that he had clearly admitted in his testimony that his father Parmanand had two brothers Lala Ram and Raman Lal and Radhey Shyam is the father of the appellants. His father Parmanand has two civil litigations against Radhey Shyam on the issue of possession of the plots. The family of Radhey Shyam is nursing grouse against his family. He claimed that on the date of occurrence at about 5.00 P.M. he was present in the Chowk (open place) of the locality. Rameshwar, Raman Lal, Devi Ram, Dayanand, Praveen and others were also there. A quarrel between Jaidev son of Ram Swaroop and Satto son of Radhey Shyam took place. Moti Ram, maternal uncle of Jaidev, intervened. The appellants thereafter came to the spot. They had a verbal clash with Moti Ram and Jai Ram. Abuses were also exchanged. The appellants, according to his statement, had gone back to his house and came again with me gun and country made pistol and went to the roof of Tej Ram. He claimed that he and Pooran went to the roof of Raman Lal, his uncle. In the mean time Sita Ram, a four year old child also came there. The appellants opened one or two fires towards Jai Ram. He due to panic concealed, himself. They raised alarm from, the roof then the appellants fired one or two shots towards them. Pooran, Sita Ram and he suffered injuries. Sita Ram died on the roof of Raman Lal. He further admitted that Dayanand deposed in favour of his father in the civil litigations against Radhey Shyam. He further claimed that Om Prakash, Ramesh, Dayanand and others brought him and Praveen to the police station. They were medically examined, They were sent to Mathura District Hospital for x-ray on the next date. Their x-ray took place on 27.30.1979 and not on the next day. Accordingly to him Jaidev, Jai Ram and Moti Ram concealed themselves in the courtyard of Jai Ram when the brickbats were hurled. This courtyard is surrounded by the boundary wall from all sides. Here he has contradicted P.W. 1. Jai Ram's house is about 40-50 pares from the courtyard of Jai Ram. Raman Lal's house is at a height but not at too much height. It is only 2-4 feet high from the level of courtyard of Jai Ram. Raman Lal's roof is about 15 feet in height from the roof of Jai Rams. This is indicative of the slope that is available from the house of Raman Lal to the house of Jai Ram. Jai Ram's house is 4-5 ft steps from the chowk (open place) where the villagers used to assemble. He admitted that he, Sita Ram and Praveen suffered injuries from the pellets discharged from one shot. It is further available from the statement of this witness that Raman Lal's house was vacant as his family members were not in his house. He claimed that from the roof of Tej Ram, Raman Lal's roof is visible. He further admitted that some 25 - 30 persons were present when Satto and Jaidev quarreled. They had noted that Satto remained in the Chowk (open space). As soon as the appellants came out from their house with gun and country made pistol, they ran to safety. At that time, Raman Lal, Dayanand and Devi Ram remained in the open piece of land and then stated that they had already run away and he did not know where these 3 witnesses were when the appellants came out from their house. They were not visible from the roof of Raman Lal. According to him from the roof of Raman Lal the land is visible but its surface id not visible. It is not possible because of the platform in the front of the Mohan Shyam. The lane takes a turn from the house of Mohan Shyam towards Tej Ram. From the roof of Raman Lal, the Chowk and its surface is not visible. Tej Ram's roof was visible to them. He admitted that 2-3 fires were made towards Jai Ram on the ground and then two shots were fired towards them. One or two fires were made after they suffered injuries. This is in contrast from the statement of P.W 1. He admitted that the gun was single barrel. He admitted that he did not see after first fire towards them loading of the barrel again. He had seen the barrel re-loaded after the fires were made upon Jai Ram. They neither ran away nor concealed themselves. They remained their in half standing position and when the gun was pointed towards them they realised that the fire was aimed on them so they could not run away. He did not hear any one calling that firing is made so conceal yourselves. According to him, the house of Raman Lal was occupied and his family members were present there. His statement was recorded 10 - 12 days later by the Sub Inspector. He was not interrogated at the police station on his arrival or before his departure from there to hospital. No report was prepared in his presence at the police station. He remained at the police station for over half an hour. Satto assaulted Jaidev in the open place on the ground and Jaidev started crying. Moti Ram and Jai Ram came to the spot and they separated them. Satto remained at the chowk and no one went to inform the brothers of Satto. He denied that Moti Ram and Jai Ram came armed in the open space, chowk. He denied that there was no person there when Satto and Jaidev had quarrelled. He also denied that he was tutored. He denied that he had seen any injury upon Radhey Shyam.
12. Thus, there are material deviations in the testimony of this witness from the statement of Dayanand P.W. 1 and once the statement of P.W. 1, Daya Nand is discarded, we cannot place any reliance on the testimony of this witness. He tried to corroborate the said story wholesomely. Contradictions between P.W. 1 and this witness especially on F.I.R. are very material. They confirm fully our opinion that F.I.R. was not lodged at the alleged time. It was prepared after memo of inquest. It might have been prepared at some later hour of the night in consultation with the police after the investigating officer fully briefed himself from the spot situation.
13. The statement of Rameshwari PW 4, has dealt a body blow to the prosecution case. According to this witness brickbats were hurled from both sides. Exchange of heated words occurred between Moti Ram and Jai Ram on the one side and the appellants; on the other side. Thereafter the brickbats were hurled between them. The appellants returned with the gun and country made pistol and went to the roof of Tej Ram. From there they made 5-6 fires. It killed Sita Ram and also injured Satya Bhan and Praveen. These boys were on the roof of Raman Lal He scribed the report on the dictation of Raman Lal, Ex. Ka.-1. It was readover to Dayanand and thereafter he put his signature. He, Dayanand and Manohari took the injured and the report to the police station. He is also the signatory to the inquest memo of Sita Ram. According to him when Satto assaulted Jaidev, Moti Ram came to rescue Jaidev. He thereafter tried to explain this statement by saying that he helped to the extent that he withdraw Jaidev from the spot and sent him to the courtyard of Moti. According to him, there were several persons including Dayanand, Raman Lal, Devi Ram and others on the spot According to him from the Chowk the door of Radhey Shyam is visible which on scrutiny of the site map is wholly improbable. When the appellants came out of their house with fire arms, no body had raised any alarm and told the people present there to run away. When brickbats were hurled, the people ran helter-skelter. The appellants fired shots to kill Jai Ram. The appellants opened 6-7 fires is in corroboration of the statement made by Davanand P.W. 1. He claimed that he cannot say that Jai Ram was on the roof or had entered into his courtyard. He claimed that he had told the investigating officer that brickbats were hurled from both sides and why it is not in his statement, he cannot explain. None suffered any injury in the brickbatting. When the fires were made, he felt fear and went behind his door. The incident was seen from the hole of the door. No body was visible to him on the plot or in the vicinity. He admitted that he did not find any pellet marks in the area on any house and on his house. His house and Tej Ram's house face each other. He claimed that entire roof and south portion of the house of Tej Ram was visible. He also claimed that he did not see any injury to Radhey Shyam. He did not go with the dead body of Sita Ram. He denied that the report was prepared in consultation with the police. He admitted that he is on litigating terms with Radhey Shyam on the demarcation of the well in their field and they are not even on talking terms.
14. Thus, from the testimonies of these 3 witnesses it is apparent that each one of them has enmity with Radhey Shyam. The incident had not occurred, as earlier discussed, in the manner as alleged by the prosecution. Jai Ram was not even a party to the earlier quarrel. Why will they choose him as a target is not discernible. Moreover, the injuries are not compatible with medical evidence. There is no downward route in the injuries suffered by the children on the roof if the house of Tej Ram is 4 Ft. higher than the house of Raman Lal. Their own evidence proves it otherwise. No independent wishes despite admission of presence of 20-25 person being admitted was examined.
15. The defence version, though according to Radhey Shyam, who appeared as defence witness in the case was not investigated by the police. The application made by him to Superintendent of Police is on the record as Ex. Kha.-1. It contained the defence version, as earlier discussed. According to this witness Jai Ram opened fire from a country made weapon which caused injuries to the 3 children. They were all on the ground it is clear. This fact is corroborated from the recovery of the blood stained earth and simple earth made by the investigating officer on his arrival to the spot. No cemented plaster stained with blood was present with blood or the earth so recovered by him. Thus it is borne out from the prosecution evidence itself that the incident occurred on the ground and these boys including deceased Sita Ram did not suffer any injury on the roof of Raman Lal. Radhey Shyam's house is in the vicinity of Tej Ram. Why they chose the roof of Tej Ram, in the circumstances, is beyond comprehension. The fire could have easily been made from their own roof. There were no stairs to go to the roof of Tej Ram. It is relevant to point out, as pointed out by learned A.G.A. also, that the Sessions Judge has made a spot inspection and was of the opinion that any person can climb up on the roof of Tej Ram. He found the roof of Tej Ram more than the height of roof of Raman Lal. From the testimony of the witnesses it is clear that the house of Raman Lal is considerably on a height than Radhey Shyam or Tej Ram. Thus, the house of Raman Lal is on much higher level than the house of Tej Ram and Radhey Shyam. The prosecution witnesses and the investigating officer had deliberately made contradictory statement in this regard that the house of Tej Ram is higher than the roof of Raman Lal just to explain sufferance of injuries by these boys. Thus, we are not in a position to place any reliance on the testimony of these witnesses. Had it been so the injuries would have a downward course.
16. The defence version apparently has some grain of truth and admittedly Satto had assaulted Jaidev, the nephew of Moti Ram and Jai Ram. These persons, therefore, had some grievance. From the testimony of Radhey Shyam, who appeared as defence witness, it is clear that Satto may have assaulted Jaidev earlier also. When he intervened on hearing the alarm of Satto he may have been assaulted by these persons with an intent to teach him a lesson. He was medically examined on the next day. The medical officer has also been examined as a defence witness and he proved his injuries to be 24 hour old. His injuries were from some sharp edged weapon and on non vital parts of the body as also simple in nature. Apparently brickbats were hurled from both sides, as admitted by P.W. 3, Rameshwar, is clearly indicative of the fact that there is grain of truth in the story alleged by D.W. 3 Radhey Shyam. The prosecution has deliberately denied any sufferance of injury by him at the hands of Moti Ram and Jai Ram. The investigating officer has also colluded with these persons and had sided with the prosecution in order to carve out a false case that the injuries of two injured and the deceased Sita Ram have been suffered at the roof of Raman Lal D.W. 1. Raman Lal had denied that any incident occurred on his roof. According to him it had occurred on the road. He was cited as a witness in the F.I.R. He is related to P.W. 1. Thus, there is ample reason for discarding the prosecution case all together as highly blemished and coloured.
17. In view of the above discussion made by us, the appeal is allowed. The appellants are acquitted of the charges for which they were convicted and sentenced, as referred to earlier. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are hereby discharged.