Allahabad High Court
State Of U.P. vs Rajman Son Of Kashi And Ors. on 13 January, 2006
Author: M. Chaudhary
Bench: M.C. Jain, M. Chaudhary
JUDGMENT M. Chaudhary, J.
1. This is a government appeal filed on behalf of the State from judgment and order dated 20th of May, 1981 passed by I Additional Sessions Judge, Azamgarh in sessions trial No. 50 of 1979 State versus Rajman & others acquitting the accused of the charge levelled against them under Sections 302, 323 and 440 each read with Section 149 IPC. Accused Jeetu and Saran were also charged under Section 148 IPC and rest of the accused under Section 147 IPC.
2. Brief facts giving rise to this appeal are that at 5:10 p.m. on 15th of August 1978 Raja Ram son of Abhilakh lodged a report at police station Maharaj Ganj. District Azamgarh that some 2-3 years ago Sahdeo, the village pradhan was murdered and prosecution was launched against him and others for his murder in which he was convicted and that since then Rajman and his family members were after him and his family members. In the noon of 15th of August 1978 his son Ram Chandra and wife Smt Dulari were engaged in bringing the fodder for their cattle by boat from Pahi Malah Purwa to their house at Nau Barar Ayema. Their boat was landed at the dyke towards north of village Tripurarpur Khalsa and he had taken one load of fodder which he had left at his house; that at about 2:00 p.m. as he was near his boat to take another load of fodder from his boat Rajman and his brother Rajdeo alongwith their nephew Rambaj. Mahendra and Manohar taking lathis and Saran and Jeetu armed with spears reached there and Rambaj dragging Ram Chandra from his boat took him to the dyke where all of them gave him lathi and spear blows; that immediately mother of Ram Chandra rushed for his rescue and as she tried to intervene some of the assailants gave lathi blows to her also. The assailants also damaged the boat with the result that the boat drowned in the water. On hearing the hue and cry Raja Ram and his brother Ram Karan alongwith Raja Ram son of Ram Sunder rushed to the scene of occurrence and witnessed the incident. Sighting them the assailants took to their heels. Then Raja Ram with the help of others took his injured son Ram Chandra on a cot to Maharaj Ganj Hospital and as they put him in the boat at Maharaj Ganj Ghat he succumbed to the injuries sustained by him in the said incident. Then Raja Ram taking the dead body of his son Ram Chandra reached the police station and lodged FIR of the occurrence with the police there. The police registered a crime against the accused under Sections 147, 148 and Section 302 read with Section 149 IPC and started the investigation. Station Officer Onkar Singh who took up investigation of the case in his hands drew inquest proceedings on the dead body of Ram Chandra preparing inquest report (Ext Ka 7) and other necessary papers (Exts Ka 6, Ka 8 and Ka 9) and handed over the dead body in a sealed cover alongwith necessary papers to constable Avadhesh Singh and chaukidar Sheetla for being taken for its post mortem.
3. Injured Smt Dulari was got medically examined by Dr M.L.Srivastava, Medical Officer in-charge Primary Health Centre Maharaj Ganj, District Azamgarh the same evening at about 6: 15 p.m. The medical examination revealed below noted injuries on her person:
1. Red contusion 2 1/2" x 1" at the lateral aspect of left upper arm 2" below the shoulder joint obliquely.
2. Red contusion 3" x 1" at the lateral aspect of middle of right upper arm obliquely.
3. Red contusion 5 1/2 " x 1" at the left mid scapular region obliquely.
4. Red contusion 4" x I" at right mid scapular region obliquely.
5. Red contusion 3 1/2" x 1" one inch above injury No. 4 obliquely.
4. The doctor opined that all the injuries were caused by blunt object, simple in nature and about half a day old in duration.
5. The investigating officer went to the place of occurrence, inspected the site and prepared its site plan map. He also recorded statements of the witnesses and did other necessary things.
6. Autopsy conducted on the dead body of Ram Chandra by Dr G.S. Chaturvedi Medical officer District Hospital Azamgarh on 16th of August 1978 at 1:30 p.m. revealed below noted ante mortem injuries on the dead body:
1. Oblique contusion 10 cm x I cm over front and middle of left side chest.
2. Oblique contusion 12 cm x 2 cm over front of left side chest from nipple downwards.
3. Contusion 4 cm x 1 cm front of right side chest lower part 2 cm above sub costal margin on mid clavicular line.
4. Contusion 2 cm x 1/4 cm oblique 2 cm above injury No. 3.
5. Contusion 2 cm x 2 cm over left forehead near hair line, mid line.
6. Multiple contusions intermingled all over back of right forearm and arm in an area of 48 cm x 5 cm.
7. Multiple abrasions in an area of 4 cm x 3 cm over back of right elbow each measuring 1/4 cm x 1/4 cm.
8. Multiple contusions intermingled all over back of left arm in an area of 16 cm x 7 cm.
9. Multiple abrasions 1/2 cm x 1/4 cm each in an area of 5 cm x 3 cm over back of left elbow.
10. Multiple contusions intermingled in all directions all over hack in an area of 55 cm x 16 cm.
11. Contusion oblique 3 cm x 1 cm over right gluteal region middle.
12. Multiple contusions over back of right leg in an area of 16 cm x 6 cm.
13. Stab wound 2 cm x 1/4 cm x 3 cm over front of right leg middle.
14. Stab wound 1/4 cm x % cm x 1 cm over front of right leg 2 cm above injury No. 13.
15. Two stab wounds 1/2 cm x 1/2 cm x 1 cm each over front of left leg upper part 6 cm below tibial tuber each 1/2 cm apart.
16. Incised wound 2 cm x 1/2 cm x skin on front lower 1/3 of left leg.
On internal examination haematoma was found present below the head injury and membranes contained clotted blood in an area of 4 cm x 4 cm above left frontal lobe. Brain was liquifying. Larynx, trachea, bronchi and both lungs were found congested and 5th rib on left side fractured.
The doctor opined that the death was caused due to coma as a result of ante mortem injuries about one day ago.
7. After completing the investigation police submitted charge sheet against the accused mentioning therein that Jeetu and Saran were absconding.
8. After framing of the charge against the accused the prosecution examined Raja Ram (PW 2), father of the deceased and the first informant. Raja Ram son of Ram Sunder (PW 3) and Smt Dulari, the injured and mother of the deceased (PW5) as eye witnesses of the occurrence. Testimony of rest of the witnesses was more or less of formal nature. PW 1 HM Rama Nand Tripathi who prepared check report on the basis of the written report handed over to him at the police station and made entry regarding registration of the crime in the general diary proved these papers (Exts ka 1 & ka 2). PW 4 Dr G.S. Chaturvedi who conducted autopsy on the dead body of Ram Chandra proved the post mortem report (Ext ka 4 ). PW 6 station officer Onkar Singh who investigated the crime and submitted charge sheet against the accused proved the police papers. PW 7 Dr M.L.Srivastava Medical officer Primary Health Centre Maharajganj who medically examined Smt Dulari proved the injury report ( Ext Ka 14),
9. The accused pleaded not guilty denying the alleged occurrence altogether. Accused Rajman stated that he was employed as a teacher in Primary Pathashala Shankarpur situate at a distance of three miles from the place of occurrence and the alleged day he was present in the school. Accused Rajdeo also took the plea of alibi stating that he was on duty at Sardaha the alleged day.
10. The defence version is that Ram Chandra was not a man of sound character; that the alleged day he entered the house of Jag Mohan chamar and attempted to outrage the modesty of his wife and as on hearing the shrieks of his wife Jag Mohan reached there and took exception thereto Ram Chandra beat him and that on the hue and cry several persons residing in Harijan Basti rushed to the scene of occurrence and they beat Ram Chandra with lathis. Immediately Ram Chandra went back to his house and then his family members took him for his treatment but he died on the way.
11. The accused examined DW 1 Jag Mohan. DW 2 Dr K.J. Maini, DW 3 Ram Baj Singh, DW 4 SI Amar Nath Tewari, DW5 Fasi-ud-din and DW 6 Raghuvansh Bahadur in their support.
12. DW 1 Jag Mohan stated that at about 12:00 the alleged noon on hearing shrieks of his wife he went to his house and saw that Ram Chandra was attempting to outrage the modesty of his wife, that as he abused Ram Chandra he pushed him and he fell outside his house and that Ram Chandra gave him 5-6 lathi blows and on the hue and cry raised several persons residing at Harijans Basti rushed to the scene of occurrence and they beat Ram Chandra with lathis ; that thereafter Ram Chandra went few paces ahead and then fell down and that thereafter his family members took him for his treatment but he died on the way. DW2 Dr K.G. Maini, the then Medical Officer, District Hospital Azamgarh medically examined Jag Mohan on 16.8.78 at 3:00 p.m. and found below noted injuries on his person:
(1) Contusion 5 cm x 1 cm left side of chest just below middle of clavicle. (2) Contusion 7 cm x 1 1/2 cm on right upper arm on its posterior aspect 6 cm above the right elbow joint. (3) Contusion 19 cm x 2 cm obliquely placed on the back of chest extending from right scapula to left scapula. (4) Contusion 17 cm x 2 cm x transversely placed on the lower part of back 16 cm above to iliac crest. (5) Contusion 13 cm x 3 cm on the anterior aspect of right thigh in its middle. (6) Contusion 18 cm x 2 cm on the anterior aspect of left thigh in its middle.
The doctor opined that all the injuries were simple caused by blunt object and about one day old in duration.
13. DW3 Ram Baj Singh, Head Master, Primary Pathshala Shankarpur deposed that on 15th of August, 1978 accused Rajman, Assistant Teacher was present in the school upto 4:00 p.m. as there were celebrations of Independence Day. The testimony of DW 4 SI Amar Nath Tewari is of no use as he was posted at police station Maharaj Ganj in December. 1980. He deposed nothing from his personal knowledge. DW 5 Fasi-ud-din (ARK) Record Keeper, Collectorate produced register of applications sent to the office of District Magistrate Azamgarh. He deposed that no application sent by Jag Mohan (DW 1) on 16th or 19th of August, 1978 was traceable in the office of District Magistrate. However he admitted his signatures on the acknowledgement of letter sent by registered post and received in the office on 17th of August, 1978 (Ext. Kha 4). He also deposed that copy of the application dated 19th of August, 1978 was issued from the office of District Magistrate, Azamgarh (Ext kha 5). DW 6 Raghuvansh Bahadur, Record Keeper, SP Office. Azamgarh produced register of complaints by Harijans and complaint register maintained in the office of Superintendent of Police, Azamgarh deposing that there was no entry regarding any complaint sent by Jag Mohan in August, 1978.
14. On an appraisal of the parties' evidence the learned trial judge disbelieved the prosecution evidence with the result that he accused were acquitted of the charge levelled against them.
15. Feeling dissatisfied with the impugned judgment the State preferred this appeal assailing acquittal of the accused.
16. We have heard Sri K.P. Shukla, learned AGA for the State appellant and Sri S.S. Rathore, learned counsel for the accused respondents assisted by Sri Vinay Kumar Singh and gone through the record.
17. Learned AGA for the State appellant vehemently argued that since impugned judgment acquitting all the accused of the charge levelled against them suffers from illegality and manifest error in evaluation of evidence and grounds on which the order of acquittal is based are unreasonable, it cannot be maintained and is liable to be se aside. On the other hand, learned counsel for the accused respondents contended that since the learned trial judge has given cogent and convincing reasons for acquitting the accused it should not be interfered with by this court in appeal.
18. We are conscious of the fact that if two views are possible on a set of evidence then the appellate court should not substitute its own view in preference to the view of the trial court which has recorded acquittal.
19. The trial judge disbelieved the evidence of all the three eyewitnesses observing that presence of PW2 Raja Ram, father of the deceased, PW 3 Raja Ram son of Ram Sunder and PW5 Dulari. mother of the deceased appeared to be doubtful at the scene of occurrence. PW 2 Raja Ram. father of the deceased stated that he kept standing at a distance of some 25 paces from the scene of occurrence and did not go for the rescue of his son. It is unpalatable and unfathomable that a father standing at a distance of 25 paces would keep on watching his son being beaten with lathi and spears and would not rush for his rescue.
20. A perusal of the antemortem injuries sustained by Ram Chandra, the deceased goes to show that the manner in which he was given lathi blows probabilises the defence version that on hearing hue and cry raised by Jag Mohan several persons rushed from Harijan Basil residing in close neighbourhood and gave lathi blows to Ram Chandra. A perusal of ante mortem injuries sustained by the deceased reveals as if he was beaten in a crowd indiscriminately by the persons riled by his immoral and condemnable conduct (injuries No. 6.8,10 & 12). Had he been attacked by the assailants with lathi and spears with an intention to kill him he must have received most of the injuries on vital parts of his body. Ram Chandra received few ante mortem stabbed wounds and incised wounds (injuries No. 13 to 16). Size of those injuries goes to show that they might be caused in all probability by some sharp edge blade fitted at one end of lathi.
21. PW 3 Raja Ram son of Ram Sunder stated in his examination-in-chief that the alleged noon he was going to village Jamuna to see some of his relatives; that at about 2:00 p.m. he was passing through village Tripurarpur that he heard shrieks of Ram Chandra and his mother and saw that accused Rambaj was taking Ram Chandra forcibly towards the dyke and then on being taken there he was beaten by the accused with lathi and spears. He further stated that he accompanied the victim and his parents to Maharaj Ganj. However he stated in his cross-examination that he did not know Ram Chandra or any of his family members from before: that he had inquired from the persons present there who told that victim Ram Chandra was the son of Raja Ram and the lady was his mother and that only then he came to know about the victim and his parents. It appears somewhat ridiculous that he did not inquire at all about the assailants and accompanied the victim and his parents to the Hospital and police station Maharaj Ganj. PW 5 Dulari. mother of the deceased stated that seeing her son being given lathi and spear blows she laid upon her son in order to save him and she received lathi injuries and the assailants set her apart. However a perusal of the injury report goes to show that her ocular testimony is at variance with the medical evidence. She stated that she received injuries at her fingers and her two fingers were broken. However there is no mention in the injury report that she received any injury at her fingers. A perusal of the injury report goes to show that injuries sustained by her could be self suffered. Thus the observation by the trial judge that presence of all the three eye witnesses appeared to be doubtful at the scene of occurrence is not without any substance and said finding recorded by the court below cannot be said to be perverse or erroneous.
22. PW 6 Station Officer Onkar Singh, investigating officer stated that he did not find any blood at the scene of occurrence. No doubt, PW 5 Dulari stated that due to rains that night the blood got washed off, However she did not state the said fact to the investigating officer in her statement recorded under Section 161 of the Code of Criminal Procedure. Since no blood was found by the investigating officer at the scene of occurrence it is doubtful if the incident occurred at the place alleged by the prosecution,
23. DW 1 Jag Mohan categorically stated that after the incident he went to police station Maharaj Ganj to lodge FIR of the incident but his report was not taken down by the police, and then next morning he went to Azamgarh where he got the report typed by a typist and sent to the District Magistrate and Superintendent of Police Azamgarh and other higher authorities by registered post. PW 6 Onkar Singh, the investigating officer stated in his cross-examination that two applications dated 16th and 19th of August, 1978 given by Jag Mohan were received at the police station and those applications were sent to the Sessions Court as they were requisitioned for disposal of bail applications and that thereafter he did not receive back those applications. He admitted that it was alleged in the applications that Ram Chandra entered the house of Jag Mohan with an evil eye and he was beaten up by Harijans of the locality. He admitted that complaint dated 16.8.1978 sent by Jag Mohan was received at the police station on 17th of August, 1978 and he should have registered the crime on the basis thereof but he did not think it necessary to register the crime on the basis thereof.
24. Further. PW 2 Raja Ram, father of the deceased stated that his son Ram Chandra was hardly 15-16 years of age at the time of occurrence. However, a perusal of the post mortem report goes to show that the deceased was about 20 years of age. It all goes to show that PW 2 Raja Ram, father of the deceased told He which goes to the very root of the case as he tried to suppress the age of his son in order to falsify the defence version that his son Ram Chandra, the deceased was given severe beating by Harijans residing in close neighbourhood as he entered the house of Jag Mohan with an evil eye on his wife in order to outrage her modesty. DW 1 Jag Mohan stated that on hearing the shouts of his wife when he entered his house he saw that sari put on by his wife was torn.
25. Thus the fact remains that the defence version and the testimony of DW1 Jag Mohan well created a genuine doubt in the truthfulness of the prosecution case and evidence. The incident took place in broad day light and there were several persons of the locality but no witness residing in the same locality was examined by the prosecution in its support.
26. On overall consideration, we are of the opinion that the finding recorded by the trial judge cannot be said to be perverse or vitiated by any serious error warranting interference with the impugned judgment.
27. The State appeal has no merit and is dismissed. Judgment of the trial court acquitting the accused respondents of the charge levelled against them is hereby affirmed. The accused respondents are on bail. Their bail bonds are hereby discharged.
28. Let the judgment be certified to the court below. Record of the case be also transmitted to the court below immediately.