Allahabad High Court
Babu Ram vs State Of U.P. on 7 September, 2018
Equivalent citations: AIRONLINE 2018 ALL 3659
Bench: Sudhir Agarwal, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on: 24.07.2018 Delivered on: 07.09.2018 Court No. - 34 Case :- CRIMINAL APPEAL No. - 369 of 1983 Appellant :- Babu Ram & another. Respondent :- State Of U.P. Counsel for Appellant :- Amit Kumar Singh,Javed Habib,Punit Kr,Singh,S.S.Sachan Counsel for Respondent :- Govt. Advocate Hon'ble Sudhir Agarwal,J.
Hon'ble Mrs. Vijay Lakshmi,J.
(Delivered by Hon'ble Sudhir Agarwal,J.)
1. This Criminal Appeal under Section 374 of Criminal Procedure Code (hereinafter referred to as "Cr.P.C.") has been filed by appellants, Babu Ram and Tara Chand against judgment and order dated 09.02.2003, passed by Shri R.N. Sharma, Additional District and Sessions Judge-III, Bareilly in Sessions Trial No. 562 of 1981, convicting both accused-appellants under Section 302 read with section 34 of Indian Penal Code (hereinafter referred to as "IPC") and sentencing them to undergo rigorous imprisonment for life.
2. Factual matrix of the case, as is evident from First Information Report (hereinafter referred to as "FIR) and evidence available before Trial Court is that Chet Ram, cousin of PW-1 Informant, was married to Smt. Somwati daughter of Ganga Ram Teli of village Bhandandi, P.S. Jahanabad, District Pilibhit. Accused Babu Ram son of Ganga Ram is brother of Somwati, wife of Chet Ram. She developed illicit relations with her brother-in-law (jeeja) namely, accused Tara Chand son of Ram Prashad of village Amkheda, P.S. Gajraula, Pilibhit. Somwati did not like her husband Chet Ram nor wanted to live with him. Prior to Teeja, getting annoyed, she went to her paternal house with her brother Mukundi Lal. On last Thursday, accused Babu Ram and Tara Chand had gone to PW-1, Informant's village Kishanpur Kuniya and met some villagers. At about 10:00 AM, they also met deceased Ram Swarup, father of PW-1 as well as other family members and asked to break relation of Somwati with Chetram and demanded return of utensils given as dowry in marriage to Chetram, whereupon father of Informant told that neither relation with Somwati would be broken nor articles would be returned. This annoyed accused appellants, Babu Ram and Tara Chand. Both threatened that they will not leave him (Ram Swarup) alive because he is posing to be Chief of the family. At that time, Janki Prasad and Kripa Shankar of Village Kishanpur Kuniya were present there. They intervened and persuaded accused and reconciled the matter.
3. In the night intervening 3/4.10.1981, Informant (PW-1 Ram Chandra) along with his brother, Natthu were sleeping, at his Chaupal, on one cot. His father (deceased-Ram Swarup) was sleeping in the thatched shed in Chaupal where other two brothers of Informant, namely, Lala Ram and Damodar were also sleeping. A lantern was also lightning inside the chaupal. Chet Ram (cousin) and Jodhey Lal (brother of Informant) were also sleeping inside Chaupal. Nathoo Lal was ailing. At about 01:30 AM, he asked for water which the Informant gave. Informant and others were awake, when accused Tara Chand armed with countrymade pistol and Babu Ram armed with lathi came over there. Informant raised alarm whereafter Chet Ram and Jodhey Lal also woke up and other persons of village namely, Karuna Shankar and Satyapal came over there, running with torches. In the meantime, Tarachand exhorted Babu Ram to kill Mukhiya (Chief) of family, i.e. Ram Swarup and upon his exhortation, accused (Babu Ram) opened fire at him. On sustaining gunshot injury Ram Swarup died on cot itself. Thereafter, both accused persons were chased by witnesses, present at the place of occurrence, but they fled away, first towards west and thereafter towards village Nakati Narainpur and made their escape good. FIR further recites that witnesses had seen occurrence and identified accused appellants in the light of lantern and torches.
4. On 4.10.1981 at 9:15 A.M., FIR of incident was lodged by PW-1, Ram Chandra. A case was registered at G.D. No. No. 16 (Ex.Ka-4). The case was investigated by CW-1, Munshi Lal Verma, who visited the place of occurrence, prepared panchayatnama (inquest) and other relevant documents and sent dead body of deceased for post mortem examination alongwith relevant papers. CW-1 Munshi Lal Verma also took into possession of blood stained kathri, one pellet, blood stained soil and plain soil in separate containers. He also took into possession the strings of cot which were blood stained. All the aforesaid articles were sealed on the spot and memos (Ex.Ka-8 to Ex.Ka-11) were prepared. The cot and lantern were also inspected and given in supurdagi (custody) of Informant. CW-1, S.I. Munshi Lal Verma also recorded statements of witnesses and prepared site plan, Ex.Ka-14, at the place of occurrence. He also inspected torch and handed over the same in custody of respective witnesses. Recovered articles were sent to Chemical Examiner, Agra.
5. Investigation was conducted by CW-1, S.I. Munshi Lal Verma, who after completion of investigation submitted charge-sheet before concerned Magistrate. The case was committed to Court of Sessions vide order dated 21.12.1981 passed by Sri D. P. Singh, Chief Judicial Magistrate, Bareilly. It was registered as Sessions Trial No. 562 of 1981. Ultimately case was transferred to the Court of III Additional District & Sessions Judge, Bareilly.
6. Charge against accused, Babu Ram and Tara Chand was framed by IIIrd Additional Sessions Judge, Bareilly on 14.04.1982 under Section 302 read with 34 IPC for committing murder of Ram Swaroop. Charge reads as under:
"That you in the night of 3/4.10.1981 at about 1:30 PM in the village Kishanpur PS Hafiz Ganj, District Bareilly in furtherance of common intention, intentionally committed murder of Ram Swaroop and you Babu Ram upon he instigation of Tara Chand shot at said Ram Swaroop and killed him while he was lying on a cot in his chaupal, and both of you committed an offence punishable under Section 302/34 of the IPC and within the cognizance of this Court of the Session."
7. Both the accused-appellants denied charges and claimed to be tried.
8. In order to prove its case, prosecution had examined in all eight witnesses, out of whom PW-1, Informant Ram Chandra, PW-2 Karuna Shanker, PW-3 Satyapal, PW-4 Chet Ram are witnesses of fact. Rest witnesses are formal, out of whom, PW-5 Babu Ram is a witness of inquest (panchayatnama). PW-6 Constable Ramesh Chandra tendered his testimony through affidavit that he had taken sealed dead body of deceased on 04.10.1981 to District Hospital for post-mortem and so long the dead body remained in his possession, none was allowed to tamper with the seal and dead body. Court examined formal witness, S.I. Munshi Lal Verma, Investigating Officer as CW-1, who has proved material exhibits and recovery memos: inquest Ex. Ka-6, Chalan Lash Ex. Ka-7, bloodstained Kathari (handwoven mattress by using a number of dhoti/saris), memo with respect to pellet Ex. Ka-9, bloodstained and simple earth Ex. Ka-10, recovery memo Ex. Ka-11 in respect of blood stained strings of cot, memo of supurdgi of cot and lanterns Ex. Ka-12 and Ka-13 respectively. PW 8 Head Constable Harishankar has proved registration of FIR and entry thereof in G.D. No. 16 and proved its carbon copy Ex. Ka-4.
9. PW-7 Dr. A.P. Singh conducted autopsy on the dead body of deceased on 5.10.1981 at 3.30 PM and has proved post-mortem report Ex. Ka 3. According to him, deceased was about 50 years of age and average built. Rigor mortis passed through upper limbs and present in lower limbs. According to him, death might have caused about 1½ days before. He found following ante mortem injuries on the person of deceased Ram Swarup:
(1) Abrasion 2 cm X 2 cm on the top of right shoulder, 3 cm. above from shoulder joint.
(2) Lacerated wound (gunshot) 3 cm x 2 cm x bone deep on the right side neck, 8 cm below right ear. Blackening and scorching present. Margins inverted.
(3) 3 lacerated wounds (gunshot) in an area of 4 cm x 6 cm on right side of neck 1 ½ cm behind the angle of mandible, size 3/4 cm x 3/4 cm x bone deep. Margin inverted.
(4) Three lacerated wounds (gun shot) in an area of 5 cm x 4 cm on the back and top of neck 1.2 cm x ½ cm x bone deep. Margins are everted.
10. PW-7 Dr. A. P. Singh opined that death of Ram Swarup was caused due to shock and hemorrhage, which could have been sustained possibly on 04.10.1981 at 01:30 A.M. In his view, injuries 2, 3 and 4 could have been caused by friction or as a result of fall on ground. He also found blackening, scorching present in the injury No. 2.
11. After closure of prosecution evidence, statement of accused Babu Ram and Tara Chand were recorded under Section 313 Cr.P.C. They stated prosecution story to be false and that they have been implicated in the case due to enmity. They admitted that the name of wife of Chet Ram is Somwati, but denied that Ram Chandra is real brother of Chet Ram. They also stated that Informant, Ram Chandra had purchased bullocks on credit from Babu Ram's father but did not pay the amount and, therefore, they have been accused and fake implicated.
12. Accused appellants in support of their defence examined DW-1 Shri Damodar Swarup and DW-2 Shri Munishswar Singh.
13. DW-1 Shri Damodar Swarup was Reader in the Court of Chief Judicial Magistrate on 05.10.1981. He stated that FIR (Ex. Ka-1) of aforesaid case was received in his Court on 05.10.1981. He admitted that FIR was received through Police Office. DW-2 Shri Munishwar Singh Sahik had stated that record of special reports received in the office of District Magistrate was maintained by him. He also stated that special report of Crime No. 188, Check No. 156, under section 302/34 IPC, Police Station Hafizganj was received in the office of District Magistrate, Bareilly on 05.10.1981.
14. On appraisal of evidence available on record and hearing counsel for the parties, learned IIIrd Additional Sessions Judge, held that witnesses of fact, particularly eye witnesses, PW1 Informant, has proved prosecution version which was duly corroborated by PW4 Chet Ram. Both have seen accused persons in the light of torch and lantern. PW2 was declared hostile in examination-in-chief, but when cross examined, also corroborated prosecution case to some extent i.e. Nathu Lal was sick, Chet Ram, Jodhey Lal, Ram Chander and Nathu Lal were present on spot and that he had seen Babu Ram accused-appellant firing from a distance of 1 or 2 steps and that Tara Chand was armed with Lathi. Trial Court found that it was established beyond reasonable doubt that lantern was glowing inside Chappar (thatched room/verandah) where deceased was sleeping and thus there was sufficient light.
15. Trial Court further held that both accused appellants were known to PW1, PW2, PW3 and PW4 before incident in question. PW1 (Ram Chand) and PW4 (Chet Ram) had very good acquaintance with accused persons and could have recognized them even by their voice as well as by their gait. Prosecution witnesses had also flashed their torches and PW1 & PW4 chased accused persons, therefore, recognition and identification of accused persons was proved beyond reasonable doubt. Minor variation in respect of manner and place where lantern was kept, is not material contradiction but prove beyond reasonable doubt that there was lantern in Chappar of deceased and it was glowing. FIR was lodged on 4.10.1981 at 9:15 AM and distance of police station from site of occurrence being 10 ½ miles and also considering the fact that incident took place in dead of night, there was no undue delay in lodging report. Tara Chand, one of the accused-appellants was armed with Lathi and exhorted Babu Ram who fired, causing death of Ram Swaroop on spot. It is proved beyond doubt and as such, both accused appellants are guilty of offence under Section 302 read with Section 34 IPC.
16. Feeling dissatisfied with conviction and sentence, accused-appellants, Babu Ram and Tara Chand have come up in this criminal appeal.
17. We have heard Shri Javed Habib, learned counsel for appellants and Shri Syed Ali Murtaza, learned AGA for State.
18. Shri Javed Habib, learned counsel for appellants assailed judgment of Court below and submitted that:
i) There is a sizeable difference in size of Chaupal inasmuch as PW1 said that it is about 10 x 2 ½ yards i.e. 9 feet x 7 feet, while as per site plan it is 10 steps x 20 steps, meaning thereby it is about 15 feet x 30 feet.
ii) Accused-appellant no. 1 i.e. Babu Ram is resident of village Bhandandi. Accused-appellant no. 2 Tara Chand is resident of village Amkheda while Informant and deceased belong to village Kishanpur Kuniya. Presence of Informant and deceased as also appellants of different villages on the date and time of incident of alleged crime, in absence of any evidence of preparation etc and lack of motive, creates a reasonable doubt.
iii) Distance of lantern as per different witnesses is different and, therefore, findings that there would have been sufficient light to identify accused-appellants, cannot be believed.
iv) PW-2 a witness of fact on one hand stated that he reached when he heard a cry "Mar Diya", but simultaneously stated that he saw Babu Ram while firing on deceased, is self contradictory.
v) Statement of PW4 Chet Ram was recorded by Investigating Officer under Section 161 Cr.P.C. after 10-12 days without explaining any reason for such delay.
vi) As per prosecution story, Somwati, wife of PW4 Chet Ram, was in illicit relations with accused-appellant Tara Chand, but Somwati's brother Babu Ram (accused-appellant No. 1) met deceased who is uncle of PW4, for return of articles given in marriage and not directly to PW4 Chet Ram or his father, which shows an inbuilt material contradiction.
vii) Informant said that he went to lodge report alone, but in cross examination said that Chowkidar Babu Ram was sent by him to police chowki for giving information of murder where-after two Constables and Daroga came, when he was weeping near his father's body, and at that time, he narrated entire incident to Police Officer who noted it on a paper and got Informant's thumb impression. Both things are self contradictory.
viii) Informant admitted that Chet Ram and Jodhey Lal were all married and used to sleep in their houses, but on the date of incident they were sleeping in Chaupal, but no reason for such unusual act has been stated.
ix) Informant on one hand said that Babu Ram fired when he was near cot and distance was not even one pace, but at another place he said that accused-appellants were seen while climbing Chabutra and he fired from that very place and ran away. PW2 on one hand said that he was sleeping in Baithak and after hearing noise reached place of incident and found Ram Swaroop dead but at another place said that he heard noise and then woke up and reached place of incident, saw Babu Ram opening fire on Ram Swaroop from a distance of about 1 or 2 paces.
x) Statements of Informant and PW5 Chowkidar Babu Ram are also self contradictory inasmuch as Chwokidar Babu Ram said that he reached police station alongwith Informant and thereafter two cops and Daroga came to place of site alongwith Informant and PW5.
xi) FIR was lodged after preparation of inquest etc and is ante time. GD entry was unfilled upto 5th October, 1981, hence FIR is after thought and registered after consultation etc.
xii) FIR and special report reached late to Chief Judicial Magistrate and District Magistrate's office.
xiii) Prosecution failed to prove its case beyond reasonable doubts.
xiv) There are self contradictions and accused appellants have been implicated falsely.
19. Learned AGA on the contrary argued that there are eye witnesses of incident who were sleeping where deceased was also sleeping and on the basis of ocular version which was duly corroborated by medical report and other evidence, trial court has rightly held that prosecution was successful in proving guilt beyond reasonable doubt. Hence, no interference is called for particularly, when minor contradictions pointed out by learned counsel for appellants are not material and cause no break of chain of the events showing guilt of accused-appellants.
20. We have carefully perused the record in order to examine the submissions advanced on behalf of accused in correct perspective.
21. Conviction of accused-appellants in present case is founded on ocular version of witnesses of facts including Informant- PW1, hence it is not a case of circumstantial evidence. Scope of judicial scrutiny on our part, therefore, is to examine whether ocular version is clear, emphatic and points to guilt of accused appellants in respect to charges levelled against them and statements of witnesses are consistent, and differences/contradictions, if any, are not so vital or material so as to demolish prosecution version or create reasonable doubt in its truth.
22. Facts show that accused-appellants and most witnesses of fact are relatives in one or the other manner. Deceased Ram Swaroop has two sons Ram Chander (Informant-PW1) and Jodhey Lal. Ram Swaroop's elder brother is Kedhar Nath and Chet Ram (PW4) is his son. Somwati is wife of Chet Ram (PW4), sister of Babu Ram (accused appellant No.1) and daughter-in-law of Kedhar Nath. Tara Chand (accused-appellant No.2) is husband of sister of Somwati. Tara Chand is resident of village Amkheda. Deceased Ram Swaroop and Informant Ram Chander are residents of village Kishanpur Kuniya. Somwati allegedly had relations with Tara Chand (accused-appellant No.2) and had disclosed this fact to PW4. Accused appellants i.e. brother and Jija of Somwati, met deceased-Ram Swaroop, about two days earlier to date of incident and asked him to return all articles/material given in dowry since Somwati was not ready to reside with Chet Ram (PW4), but deceased Ram Swaroop denied and said that he wants to keep Somwati. This attitude did not find favour with accused-appellants and they returned threatening that they would see. About 1:30 AM on 4th October, 1981, Ram Chander (Informant) and his brother Nathu Lal were sleeping on a cot, in a room, at Chaupal. Ram Swaroop was sleeping under Chapper in Chaupal alongwith Informant's younger brothers Lala Ram, Damodar and their children. A lantern was alighting in Chappar. Chet Ram and his cousin Jodhey Lal (brother of Informant) both were sleeping in other part of Chaupal. Nathu Lal (brother of Informant) was ill and suffering from fever. He asked for water at around 1-1:30 AM in the night. Informant gave him water. Obviously, at that time, both were not sleeping. Babu Ram (accused-appellant No. 1) came with a country made pistol and Tara Chand with a Lathi. Informant and Nathu Lal raised noise whereupon Chet Ram and Jodhey Lal woke up. In the meantime, Karuna Shankar (PW2) and Satyapal (PW3) also came running flashing torch. In the meantime, Tara Chand exhorted Babu Ram, what he is waiting for and should kill the Head of family, whereupon Babu Ram fired from country made pistol upon Informant's father, Ram Swaroop, who died on cot itself. Both assailants ran away towards western side, and then towards Nakti Narainpur. Informant and others chased them, but could not catch hold of them.
23. Injuries found on body of Ram Swaroop show gunshot injuries and an abrasion for which PW7-Dr. A. P. Singh stated that same could have been caused due to friction or as a result of falling on ground. Above facts clearly show that both accused-appellants were well known to Informant as well as Chet Ram (PW4), being close relatives. Accused-appellant No. 1 is brother-in-law of PW4 and appellant No. 2 is Jija of accused appellant and Saru (husband of wife's sister) of PW4. Informant being son of uncle of PW4 i.e. cousin of PW4, their relationship is also quite close. In the night of 4th October, 1981, Informant his brothers, PW4 and his brothers all were sleeping under or around Chaupal. Site plan shows places where Informant, PW4 and deceased and others were sleeping. All places are in close range. PW1 also said that Satyapal (PW3) and Karuna Shankar (PW2) are residing in different houses which is about 80 or 90 paces on the east, from Chabutra of Chaupal of Informant. These two persons were sleeping in other Chaupal.
24. As per Informant's deposition, since his brother Nathu Lal was ill and suffering from fever, he demanded water around 1:30 AM in the night which was given to him by Informant hence both were awaking. In the meantime, Babu Ram and Tara Chand, both, reached Chaupal, armed with country-made pistol and Lathi in their hands, respectively. Informant raised noise when he saw Babu Ram and Tara Chand. Thereupon Satya Pal, Karuna Shankar, Jodhey Lal and Chet Ram all came. Satyapal and Karuna Shankar had torches with them. Tara Chand asked Babu Ram as to what he is waiting for and should kill Mukhiya, whereupon Babu Ram opened fire on informant's father which hit his neck and he died. Accused-appellants ran away towards west after firing and also chased by aforesaid persons, but could not be caught. Now, aforesaid statement of PW1 shows that Tara Chand and Babu Ram when reached the place of occurrence, Informant raised noise, but both were waiting not only till Jodhey Lal and Chet Ram, sleeping on one side of same Chaupal got up but even Satyapal (PW3) and Karuna Shankar (PW2) whose residence situated about 80-90 paces from Informant's Chaupal, also reached alongwith torches. This must have take sometimes and although accused-appellants remained standing waiting for them is apparently unbelievable.
25. Karuna Shankar (PW2) was declared hostile. He stated in his examination-in-chief, when he reached after hearing noise, he found Ram Swaroop lying dead and he had not seen anybody killing him. After declaration of the said witnesses hostile, he was cross examined by prosecution. He then said, when he reached Chaupal of Ram Swaroop, found Babu Ram with country-made pistol and Tara Chand with Lathi coming out from Chapar of Ram Swaroop's Chaupal. Thereafter, he said, when he reached Chaupal at that time, there was a fire and when he throw torch light, saw Babu Ram firing from his country-made pistol. Both accused-appellants ran away before him. In further cross examination made by defence, he said that he was sleeping and got up when he heard noise "Mar Diya". He saw accused-appellants running on western side and they were around 8 or 10 paces from him. He chased for 1 or 2 steps and thereafter came back. At that time, about 15-20 people have collected in Chaupal of Ram Swaroop. Informant Ram Chander was near dead body of Ram Swaroop. He talked with Ram Chander (Informant) and asked names of murderers. At another place, in cross examination, PW-2 said that when he reached, Damodar and Lal Ram, were sitting in Chapper and crying and both were young children. PW2 in his deposition said that he was at his house i.e. inside of his Chaupal and when heard noise of Ram Chander, Chet Ram and Jodhey Lal, came running to Chaupal of Ram Swaroop with a torch in his hand. There he saw Babu Ram having killed by opening fire upon Ram Swaroop. He admits that his residence is about 80 or 90 paces towards east from the site of incident and from his house Karuna Shankar's house situated towards west at a distance of about 20 to 25 paces. He also admits at another place that he woke up on hearing noise of 'Chor Chor'. He and Karuna Shankar both ran towards Chaupal of Ram Swaroop. These statement of PW2 are self contradictory and unbelievable.
26. There is an improvement in statement of PW3, PW2 has stated that he was sleeping around 1:30 AM in his Baithak and nowhere said that he was sleeping with Satyapal (PW3) though PW3 said when he reached the site of incident, found Chet Ram and Jodhey Lal thereat. Thus, in his examination in chief PW3 said that he saw Babu Ram firing at Ram Swaroop and at that time Tara Chand was also present with Lathi, but in cross examination PW3 said, when he reached the place of occurrence, Jodhey Lal and Chet Ram were on eastern side and Nathu Ram and Ram Chander were sleeping in Kotha. Relevant extract of statement reads as under:-
"ftl le; eSa ?kVuk LFky ij igqpk rks tks/ks o psrjke iwjc dh rjQ Fks vkSj uRFkw o jkepUnj vius dks "When I reached the place of occurrence, Jodhey and Chetram were towards east and Nathu and Ram Chander were sleeping in their Kodha (a kind of room). Chetram and Jodhey were awake and they were raising alarm. All gathered on Chabtra after one and a half minutes I had reached there. I had come on to the Chabutra from the eastern side. When I had reached there, I saw only Chet Ram and Jodhey. I had talked with them. Later, he stated that no talks had taken place. No one had uttered the name of the assailants. I had not raised any alarm. When I returned, Nathu Lal was found lying in his room and was in pain. He was not near the dead body."
(English translation by Court)
27. PW3, therefore, contradicted even statement of Informant that he was awake when accused-appellants came and Babu Ram opened fire upon Ram Swaroop. He also stated in his cross examination that when he stepped on Chabutra, saw Babu Ram running ahead and thereafter Tara Chand was running. Before that he had not seen anybody. He categorically stated that when he saw for the first time, both appellants were running through Gram Sabha land towards west. His statement is in categorical terms and reads as under:
"tSls gh eSa pcwrjs ij p<+k ckcw jke vkxs Hkkxk ihNs rkjkpUn HkkxkA pcwrjs ij p "As soon as I stepped onto the Chabutra, Ram Babu fled away followed by Tara Chand. I saw no one before I stepped on the Chabutra. I would have pursued up to 40 or 50 paces. When I first saw, both the accused persons, were fleeing towards the west through the land of Gram Samaj."
(English translation by Court)
28. PW3 had not seen accused-appellants earlier to the incident, as he clearly stated in his cross examination, which is as under:
"rkjkpUn dks eSus okds ls igys ugha ns[kkA ckcw jke dks Hkh igys ugha ns[kkA"
"I had never seen Tara Chand prior to occurrence, nor had I seen Babu Ram before." (English translation by Court)
29. PW4 Chet Ram, another eye witness, in his examination-in-chief made a statement which is consistent with statement of Informant that around 1:30 AM both accused-appellants came together with country-made pistol and Lathi, seeing them Informant, Ram Chander, raised alarm that they had come to kill, whereupon PW4 Chet Ram, Karuna Shanker and Satya Pal reached there; and on exhortation of Tara Chand, Babu Ram fired upon Ram Swaroop. Gun shot hit at neck of Ram Swaroop and he died. However, in cross examination PW4 said that he, Informant and Jodhey Lal were awaking before coming of Karuna Shanker and Satya Pal. First of all, PW4 went near dead body of his uncle Ram Swaroop which was lying on cot. He did not chase accused-appellants.
30. Witnesses particularly, PW1 and PW4, though have been consistent in their examination in chief with prosecution version as disclosed in FIR that Nathu Lal was ill; he demanded water around 1:30 AM on 4th October, 1981 which was given to him by Informant Ram Chander; accused-appellants reached Chaupal while PW 1 and PW 4 both were awake; on raising of alarm by Informant Chet Ram, his brother Jodhey Lal and two neighbours Karuna Shankar PW2 and Satya Pal PW3 reached Chaupal of Informant and thereafter on the exhortation of Tara Chand, Babu Ram fired at Ram Swaroop and he died instantaneously at cot itself. This, consistency has, however, considerably been shattered in their cross examination. Moreover, from the statement of PW2, one thing is admitted that he was sleeping in his own house in Baithak, while PW3 claimed that PW2 and PW3 both were sleeping in house of PW3 on a Takath. Houses of PW2 and PW3 are at a distance of 80 to 90 paces from place of occurrence. When a person sleeping in his house, woke up after hearing noise and cover a distance of 80 to 90 paces, this entire act would normally taken at least a few minutes. It cannot be believed that till PW2 and PW3 reached the place of incident, after waking up on hearing alarm and covering a distance of 80-90 paces, accused-appellants did nothing but simply remained standing, still, and waiting for arrival of these persons. One of the gunshot injuries, on Ram Swaroop has blackening also, as per autopsy report, while PW1 at one stage said that Babu Ram fired immediately after climbing up Chabutra which, as per site plan, is about 10 x 20 paces, and is sufficiently big one. At another place, he said that Babu Ram was about a step from deceased and fired therefrom.
31. Injury as per autopsy report showing blackening would have been possible when fire was opened from a close range of less two feet. There is only single gun shot fired by Babu Ram. Tara Chand did nothing in the entire episode except exhorting Babu Ram, as per common stand of prosecution. Entire prosecution story on a very crucial and important fact creates a serious doubt about its veracity that till arrival of PW2 and PW3 from their residences covering a distance of 80-90 paces after waking up on hearing noise, accused-appellants simply waited and opened fire only when all the persons reached at the place of incident. In the cross examination of PW2 and PW3 it was clearly suggested that they reached the place of incident after firing had taken place, these witnesses made a statement that Babu Ram fired when Satya Pal and Karuna Shankar had also arrived at the site but this contradiction could not be explained by prosecution at all. Prosecution version founded on alleged eye witnesses, therefore, is seriously doubtful. It cannot be doubted that both accused-appellants were well known to Informant and others but simultaneously Informant as well as PW4 had strong reason to bear a heart core enmity with appellants for the reasons that wife of PW4, as per his own admission, had illicit relation with accused-appellant Tara Chand who had full support of accused-appellant no. 1, brother of Somwati (wife of PW4). PW1 and PW4, therefore, had strong reasons to falsely implicate accused-appellants in the murder of Ram Swaroop.
32. It is also difficult to accept that so many persons had already reached and collected on the spot and thereafter Babu Ram opened fire and still nobody could either stop or catch any of accused-appellants.
33. Then we find that PW1 explained a reason for lodging FIR at 9:15, in the morning of 4th October, 1981, stating that due to night he did not come and has come alone for lodging report in the day time. In his statement, he stated that police station is about 7-8 kos from village, but Chwoki Riyoldaya is only at a distance of 1 kos. PW1 sent Babu Ram Chowkidar (PW5) in the morning to chowki Riyoldaya. Chowkidar Babu Ram (PW5) returned after an hour accompanied by two Constables and one Daroga. At that time, Informant was weeping and crying near dead body of his father. Jodhey Lal and Chet Ram (PW4) were also present there. Informant told entire thing to Daroga who noted on a paper and obtained thumb impression of Informant, Jodhey Lal and Chet Ram. Daroga remained in village for about 3 hours and thereafter Informant and Daroga went to police station by tractor. By that time, there was a little time left in sunset. PW5 Chowkidar Babu Ram, however, has given a different version stating that he alongwith Informant went to police station and reached about 9:30 AM to lodge report. He did not corroborate the statement of PW1 that Chowkidar Babu Ram was sent, first to Chowki, which is about 1 kos from the village, to give information of the murder of Ram Swaroop, and therefrom two Constables and one Daroga came to the place of incident.
34. Shri Munshi Lal Verma, Sub Inspector, who was posted on the date of incident as Station Officer, Police Station Hafiz Ganj, has also been examined as CW-1 and has stated that he stayed at Chowki Riyoldaya in the night of 3/4.10.1981. In the morning of 4.10.1981, Informant and Babu Ram came at chowki and told about incident. Thereupon Informant was sent to Police Station for lodging report and Munshi Lal Verma, CW1, alongwith staff proceeded towards place of incident and took necessary steps for preparation of Panchayatnama etc. He recorded statements of Informant, Karuna Shankar and Satya Pal and inspected place of incident and prepared site plan. This statement again contradicts the PW1.
35. Trial Court has got impressed with the fact that since both accused-appellants were well known to eyewitnesses, even if there was insufficient light, they could have been identified by eye witnesses from their voice as well as gait and further since all witnesses have consistently deposed that Babu Ram fired on Ram Swaroop and he died, therefore, prosecution has proved its case, but we find a serious error on the part of Court below in not looking into apparent different version which has come in cross examination of said witnesses and break consistency in the prosecution version. We have already discussed aforesaid variation and discrepancies in statements of alleged eye witnesses which could not be explained at all.
36. Further site plan shows that Informant, Ram Chander and Nathu Lal were sleeping in a room, door whereof is towards north and thereafter there is a Chappar. Relevant statement of CW-1 reads as under:
"jkepUnj us ftl LFkku ij viuk lksuk crk;k og ,d dksBjh gS ftldk njoktk mRrj dks gS blds vkxs NIij gSA"
(emphasis added) "The place where Ram Chander stated to have been sleeping, is a room, the door of which is towards the north, and further, there is a thatched hut in front of it."
(English Translation by Court)
37. If aforesaid statement is considered in the light of site plan, would show that it would be difficult to see from the room towards Chabutra, if somebody is climbing up on Chabutra since there is sufficient distance and somebody, if sleeping in a room, it is difficult to see what is happening at a place which is after Chabutra. Moreover, it is also not clear whether door of room was closed or open. If there was a door, in a room, generally people sleep after closing the door, but this fact is not clear from anybody's statement. Site plan also shows that cot of deceased Ram Swaroop was in Chappar and near him children and two other members of Informant's family i.e. Lala Ram and Damodar, were sleeping. It is not stated by any of the witnesses that when occurrence took place, these people, who were sleeping near deceased, raised any hue and cry or ran away or did any other action or what was done by them. It cannot be believed that two brothers of Informant were sleeping near cot of deceased alongwith their children and did not raise any hue and cry. In fact, entire prosecution story is virtually silent in respect of role of Damodar, Lala Ram and their children who admittedly were sleeping near cot of deceased Ram Swaroop under Chappar at Chaupal. PW4 in his cross examination said that cot of Ram Chander was touching the cot of Ram Swaroop on western side and all of them were under same Chappar. His statement reads as under:
"gekjh pkjikbZ jkeLo:i dh pkjikbZ ls iwjc dks feyh gqbZ Fkh vkSj jkepUnj dh pkjikbZ jke Lo:i dh pkjikbZ ls iPNe dks feyh gqbZ FkhA gelc yksx ,d gh NIij esa FksA"
"Our cot was by the side of Ram Swaroop's cot in the east and Ram Chander's cot lay beside that of Ram Swaroop in the west. We ll were in the same thatched hut"
(English Translation by Court)
38. CW1 on the contrary has stated that Informant Ram Chander was sleeping in a Kothari which has a door on north side and thereafter there is a Chappar. It shows that Ram Chander was not in a position to see accused-appellants when they allegedly reached the site. Those who were sleeping near Ram Swaroop, have neither come in witnesses box nor have stated, what had actually happened. As per CW1, residence of Karuna Shankar is about 50 paces on east of house of Informant, while that of Satya Pal is about 100 paces on east. That being so, it creates a serious doubt as to how Satya Pal and Karuna Shankar, both could reach place of incident together and also saw Babu Ram firing upon Ram Swaroop, though according to them, they were sleeping in their respective houses and got up when heard noise with words 'Mar Diya' and 'Chor Chor'.
39. Variation in statements, therefore, as earlier noticed, cannot be said to be minor and unsubstantial, but in fact create serious and reasonable doubt over truth of prosecution version. In such circumstances, it is not safe to convict accused-appellants on the basis of such evidence.
40. It cannot be doubted that a crime had taken place resulting in death of Ram Swaroop (father of Informant) due to gunshot injury which hit him at neck, but this fact itself will not justify implication of accused-appellants, particularly, when Informant as well as eye witness PW4 (Chet Ram) have strong reason of hard core enmity with accused-appellants since PW4 himself admitted that his wife had illicit relationship with accused-appellant Tara Chand and this fact was well known to Informant also. Possibility of false implication of accused-appellants by Informant and PW4 in this backdrop cannot be ruled out. Possibility of presence of PW2 and PW3, on the site and witnessing the incident is seriously doubtful.
41. In our view, Trial Court has clearly erred in holding that prosecution has proved its case beyond reasonable doubt and on the contrary, apparent material contradictions in prosecution version and statements of alleged eye witnesses and other relevant aspects have not been considered by Court below in right perspective and ignoring all these, it has convicted and sentenced accused-appellants. Therefore, conviction and sentence awarded to accused-appellants cannot be sustained.
42. In the result, appeal is allowed. Impugned judgment and order dated 09.02.2003, passed by Shri R.N. Sharma, Additional District and Sessions Judge-III, Bareilly in Sessions Trial No. 562 of 1981, convicting both accused-appellants under Section 302 read with section 34 of IPC and sentencing them to undergo rigorous imprisonment for life, is hereby set aside. Appellants are acquitted of the charges levelled against them. Appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.
43. Keeping in view provisions of Section 437-A Cr.P.C., appellants are directed to forthwith furnish a personal bond of the sum of Rs. fifty thousand and two reliable Sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellants on receipt of notice thereof shall appear before Hon'ble Supreme Court.
44. Lower Court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.
Order Date :- 7.9.2018 Ravi Prakash