Allahabad High Court
Ramjan Alias Sawanru And Ors. Etc. vs State Of U.P. on 2 November, 2000
Equivalent citations: 2001CRILJ940
Author: M.A. Khan
Bench: J.C. Gupta, M.A. Khan
JUDGMENT M.A. Khan, J.
1. These are connected appeals arising out of judgment and order dated 10-7-1980 of Sri D.P. Srivastava the then Additional Session Judge, Gorakhpur whereby all the appellants of both the appeals have been convicted and sentenced to one year R.I. under Section 148, I.P.C., imprisonment for life under Section 302/149, I.P.C. and one year R.I. under Section 324/149, I.P.C.
2. Since both the appeals arise out of the same incident, they are disposed of by this common judgment.
3. The prosecution story briefly stated is that in the night between 11/12-9-1978, Sita Ram Resident of village Neta Surhurwa, P. S. Maharajganj, District Gorakhpur was sleeping in the 'Baithaka' of his house on a cot. Nebu Lal his servant was also sleeping on the same cot. Banarsi and Ram Naresh were also sleeping on a 'Takhta' in the same 'Baithaka'. A burning lantern was hanging from a peg embedded in the western wall of the 'Baithaka'. It is alleged that at about 2.00 A.M. the appellants Ramjan alias Sawanru, Somai, Ghisiawan, Kanta armed with spears, Atma, Lallu Sutai and Hansraj armed with Pharsa, Hullar and Rajaram armed with Gandasa came inside the said 'Baithaka' and started assaulting Sita Ram with their respective weapons. Banarsi and Ram Naresh woke up and both rushed out of the 'Baithaka' and witnessed the incident by standing close to the eastern wall of the 'Baithaka'. Banarsi held a torch with him which he flashed on the accused persons and identified them. On the alarm raised by Banarsi and Ram Naresh, witnesses including Hargun and Sartaj were attracted to the scene of occurrence and they also witnessed the incident from a close quarter. Nebu Lal also received some injuries at the hands of assailants, but he slipped out of the 'Baithaka1 by crawling himself and he also raised alarm along with Banarsi and others. After committing the murder of Sita Ram, the accused persons ran away towards west south. After their departure the witnesses entered into the 'Baithaka' and found Sita Ram dead. Banarsi got the First Information Report Ex. Ka-1 written by Ram Achal Gupta and handed over the same at P. S. Maharajganj, which was situated at a distance of three miles from the scene of occurrence. The report was recorded at 6.30 A.M. on 12-9-78. Chik Report Ext. Ka-2 was prepared and the case was registered in the General Diary against the accused appellants.
4. Sri Giriraj Singh, who was then Station Officer, Maharajganj took up the investigation. He visited the scene of occurrence, held inquest proceedings, prepared site plan and recorded statements of witnesses and thereafter on completion of investigation laid charge-sheet against all the appellants in Court, who were committed to the Court of Session where they were duly tried by the Additional Sessions Judge, Gorakhpur.
5. Autopsy on the dead body of Sita Ram was held by Dr. Yashpal Singh, P.W. 7 on 13-9-78 at 11.30 A.M. As many as 44 incised wounds were found on the deceased and in the opinion of Doctor, death of Sita Ram had occurred due to shock and haemorrhage on account of antemortem injuries. The same doctor had earlier medically examined Nebu Lal on 12-9-78 at 1.00 P.M. and found following injuries :-
1. Incised wound 3 cm x 1 cm x skin deep on the back of right forearm just above elbow caused by simple-sharp cutting object.
2. Incised wound 2 cm x 1 cm skin deep on the back of left elbow by simple-sharp cutting weapon.
3. Incised wound 3 cm x 3/4 cm x skin deep on the back of left forearm 10 cm above wrist by simple-sharp cutting weapon. Injury report of Nebu Lal is Ext. Ka 4.
6. To prove their case, prosecution examined eight witnesses, of whom Banarsi P.W. 1, Nebu Lal P.W. 2, Hargun P.W. 3 and Ram Naresh P.W. 5 are witnesses of fact. All the accused persons in their statements recorded under Section 313, Cr.P.C. denied the prosecution allegations and stated of their false implication due to enmity. They however, did not examine any witness in defence.
7. The trial Judge believed the evidence of eye-witnesses and accordingly has convicted and sentenced the appellants as above.
8. We have heard learned counsel for the appellants and learned A.G.A. appearing for the State.
9. The submissions of the learned counsel for the appellants in short were that the present was a case of blind murder committed in darkness and none witnessed the same; that all the witnesses examined at the trial were not only interested and highly inimical but their presence at the time of occurrence was also highly doubtful; that presence of any source of light at the time of incident has not been established; that it is also doubtful that Nebu Lal P.W. 2 received any injury during the course of incident in which Sita Ram was killed and at any rate even if he had received any injury he was himself not in a position to identify the assailants on account of darkness; and that the first information report was prepared in the morning after the arrival of police and the same has been ante-timed.
10. P.W. 1 Banarsi admitted that Balbhadra son of accused Sutai was murdered much before the occurrence in question and for that murder, he along with Sita Ram deceased of the present case and P.W. 3 Hargun were prosecuted and convicted by the trial Court but on appeal they were acquitted by High Court about 3-4 years before the present occurrence. He further admitted that Sita Ram deceased had instituted a criminal case under Section 307, I.P.C. against Ramjan appellant. In that case along with Ramjan appellant his four other family members including Shiv Nath and his son Ramprit were also made accused. P.W. 1 Banarsi further admitted that he appeared as a witness for Sita Ram in that case which also ended into acquittal about 10-12 years prior to the incident in question. It was also admitted by this witness that on the report of Ramjan accused he, Sita Ram deceased of the present case and Hargun P.W. 3 were prosecuted in a case under Section 452/380, I.P.C. and in that case Ramdas father of appellant Atma was a witness against them. Proceedings under Section 107/116, Cr.P.C. were also initiated against Sita Ram and others on one side and Ramjan accused and others on the other side. He and Hargun P.W. 3 were in the party of Sita Ram deceased. Similarly Hargun P.W. 3 also admitted his enmity with accused Ramjan and others. It was also admitted by him that in the murder case of Balbhadra, Ram Budhare, father of P.W. 5 Ram Naresh was also prosecuted along with his/cousin Sita Ram and others and in that case Shiv Nath uncle of Kalloo accused had given evidence against them. It is thus evident that P.W. 1 Banarsi, P.W. 3 Hargun and P.W. 5 Ram Naresh were all inimical to the accused persons and were highly interested in the deceased. Nebu Lal P.W. 2 also cannot be branded as independent witness, he being servant of deceased Sita Ram.
11. Apart from the fact of the witnesses being partisan and highly inimical, they also appeared to be chance witnesses. According to the own admission of P.W. 1 Banarsi, his house was situated in the middle of village at a distance of about 100 paces from the 'Baithaka' of the deceased where he was sleeping and between his house and the 'Baithaka' of the deceased there were 6-7 houses. In the night of occurrence his wife was sleeping all alone in his house. He could not give any convincing reason as to why he was sleeping at the 'Baithaka' of the de- ceased on that particular night leaving his wife all alone in his own house which was situated far removed from the place of occurrence. Hargun P.W. 3 stated that he was sleeping in his house and he woke up on hearing shouts of Ram Naresh and Banarsi. According to P.W. 1 Banarsi, house of Hargun P.W. 3 was placed at a distance of about 50 steps from the 'Baithaka' of the deceased. Hargun P.W. 3 himself admitted that 3-4 houses intervened his house and Sita Ram's house but no person came out from these houses. Prosecution claimed that P.W. 5 Ram Naresh was also sleeping at the 'Baithaka' of the deceased on the fateful night by the side of Banarsi P.W. 1. He admitted that deceased was his first cousin and that a partition between them had taken place about five years before Sita Ram's murder and in that partition he got property in Baspar Baijoli in his share and got no property in the village of the deceased and that he used to reside with his family in village Baspar Baijoli. There seems to be no occasion for this witness to be present at the 'Baithaka' of the deceased. It would thus be found that all the witnesses produced at the trial besides being highly interested and inimical were chance witnesses. Therefore, their evidence requires a very cautious and close scrutiny particularly when the incident had occurred during dead hours of night. Further it has to be found out whether Nebu Lal P.W. 2 was sleeping in the 'Baithaka' of the deceased and had sustained injuries during the course of incident where the deceased was belaboured and if he was present; whether he was able to identify the assailants ?
12. Before launching discussion on the evidence of the alleged eye witnesses, we may point out that the 'Baithaka' where the deceased was alleged to be sleeping was situated to the east of the house of Sita Ram deceased. As admitted by the investigating officer, it was an open 'Baithaka'. Site plan Ex. Ka. 21 prepared by the investigating officer on spot inspection reveals that the assailants had come from northern side.
13. Even as per the prosecution case the incident had occurred in dark night and at dead hours when the villagers were fast asleep, therefore, the prime question that arises for consideration is regarding availability of light at the scene of occurrence. The main source of light said to be available on the scene of occurrence was a lantern hanging from a peg embedded in the western wall of the 'Baithaka' of the deceased where he was sleeping. When the Investigating Officer inspected the spot no lantern was found hanging in the western wall and a lantern was produced before him by P.W. 1 Banarsi. The description of the lantern which is said to be burning at the time of incident given by P.W. 1 Banarsi materially differs from the one as mentioned in the memo prepared by the Investigating Officer on examination of the lantern which was produced before him. The presence of this source of light can very well be doubted if examined in the context of statement of Banarsi P.W. 1, who has stated that the first information report of the case was drafted in the night itself in the light of a 'dibri' of kerosene oil. Had there been any lantern hanging and burning on the western wall and was throwing sufficient light there seems to be no occasion for bringing a small 'dibri' for drafting the first information report because it is of common knowledge that dibri is not a bigger source of light than the lantern. The fact that the dibri was brought from inside the house of the deceased for writing the first information report is indicative of the fact that perhaps there was no such lantern burning inside the 'Baithak'. The source of light of lantern thus becomes highly doubtful. This doubt is further fortified from the statement of Nebu Lal P.W. 2, who admitted in his cross examination that at the time of incident it was absolutely dark night and because of darkness he could not identify the witnesses who had arrived hear the scene of occurrence. If Nebu Lal was not in a position to identify the persons collected at the scene of occurrence, on account of darkness, we fail to understand how he was able to identify the assailants who were as many as twelve in number and could specify the weapons which each of them was carrying. The other source of light is said to be torches which are alleged to have been flashed by the witnesses. Banarsi P.W. 1 admitted that as soon as the assailants had broken in 'Baithaka', he, and other witnesses ran out of 'Baithaka' due to fear and to save their lives. In such a situation, where as many as twelve assailants had entered into the 'Baithaka' with deadly weapons, it does not seem probable that while running out of the 'Baithaka' for saving their lives the witnesses would have carried torches with them. We would show later on that presence of Banarsi, Hargun and Ram Naresh at the scene of occurrence is highly doubtful and once their presence is rendered doubtful the theory that they flashed torches goes out of consideration.
14. Now we come to the question regarding presence of witnesses at the time of occurrence. Out of the four witnesses examined at the trial Ram Naresh P.W. 5 turned hostile and did not support the prosecution case. He is first cousin of the deceased Sita Ram and as per the statement of Banarsi P.W. 1 Ram Naresh was sleeping along with him in the 'Baithaka' of deceased on the same takht on the fateful night, but Ram Naresh P.W. 5 categorically stated that on that night he was sleeping at his house in another village Baspar Baijoli which was situated at a distance of about more than one mile from the house of Sita Ram. Ram Naresh P.W. 5 categorically denied of having seen with his own eyes, commission of murder of Sita Ram. According to him he came to know of the murder of Sita Ram from the mouth of Banarsi P.W. 1, when the later had gone to his village and told him about the incident. It is pertinent to note that Ram Naresh, P.W. 5 also admitted that when Banarsi told him about the murder of Sita Ram he did not disclose to him names of the assailants.
15. Coming to the evidence of three remaining witnesses, we find that as far as P.W. 1 Banarsi and P.W. 3 Hargun are concerned, they have no plausible and convincing reason of being present at the time of occurrence where Sita Ram was belaboured. We have already pointed out above that these witnesses were highly inimical to the accused persons and after examining their evidence carefully, we find their evidence untrustworthy and unreliable and it seems to us that perhaps they have deposed against the appellants due to ill-feelings towards them. Their evidence suffers from inherent unnaturalities and improbabilities. P.W. 1 Banarsi has stated that he was himself sleeping in the same 'Baithaka' where Sita Ram was sleeping. According to him as soon as the assailants who were 12-13 in number came inside the 'Baithaka' armed with deadly weapons, he jumped out of the takht and managed to go out of the 'Baithaka' and remained standing through out the incident at a hand shaking distance and from that place he flashed torch over the assailants and continued to raise alarm. It is wholly inconceivable that this witness who was himself a dire enemy of the accused persons would have been spared by them and would have been allowed to flash torch over them from a close quarter. This witness further admitted that the assailants had locked Sita Ram's house from outside and for that reason wife of Sita Ram could not come out of her house during the course of incident. When the accused persons were so scared of their being noticed and identified by the wife of the deceased, it does not sound to reason that they would allow their dire enemy P.W. 1 Banarsi to remain present near the scene of occurrence to witness the incident without even making any attempt to attack him. At any rate they would have never allowed him to flash his torch upon them and raise cries to attract villagers. As already pointed out above residential house of this witness was placed in the middle of the village and in normal circumstances he was expected to sleep there. In these circumstances where he succeeded in slipping away from the 'Baithaka' of the deceased on account of danger to his own life, his claim that he remained posted at a hand shaking distance from the assailants through out the course of incident and raised cries and flashed his torch on them is most incongruous with his natural conduct and behaviour. Therefore, it will not be prudent to accept that what he says is true and it will be too risky and hazardous to rely upon his testimony. For the same reason the testimony of Hargun P.W. 3 cannot be given any credence who is alleged to have arrived at the scene of occurrence from his house which was placed at a distance of more than 50 paces from the scene of occurrence. According to him he also raised cries on seeing the assailants assaulting the deceased and at that time the assailants were placed from him at a distance of about 5 cubits, yet none of the assailants assaulted him nor made any attempt to do so. He himself was prosecuted along with deceased Sita Ram in the murder case of Balbhadra son of accused Sutai, he was, therefore, also a dire enemy of accused persons. It is also worthwhile to mention here that this witness admitted that on seeing the incident he simply cried, "Dauro pancho dauro mar rehe hain." If he had seen the accused persons making attack on the deceased he would have raised cries by their names. According to him he continued to raise alarm for about 20 minutes yet excepting Sartaj no other villagers came out of their houses. It was highly unnatural that for about 20 minutes this witness would have been allowed to raise cries specially when he was placed at a hand shaking distance and was the dire enemy of the accused persons. All these unnaturalities and infirmities make his evidence and that of Banarsi, P.W. 1 highly shaky and does not reach to the standard required to be achieved while testing evidence of a highly partisan, interested and chance witness.
16. Now, we are left with the evidence of P.W. 2 Nebu Lal who is the star witness of the prosecution as he is said to have suffered injuries in the same incident in which Sita Ram was belaboured. This witness admitted that his own residential house was situated at a distance of 20-30 paces from Sita Ram's house. He stated that he was servant of Sita Ram yet he claimed that he was sleeping on the same cot on which his master Sita Ram was sleeping. We are not able to digest the claim of this witness of his sleeping with his master on the same cot, as it was most unnatural for a servant to sleep on the same cot with his master. Before the Investigating Officer this witness stated that he was sleeping in the west by the side of his master. The assailants are also said to have entered into the 'Baithaka' from north western side and in that event this witness would not have escaped with only minor injuries. Realizing this difficulty the witness had to change his place of sleeping in his statement given at the trial wherein he stated that he was sleeping in east by the side of his master. The improvement was obviously made for the reason that the witness had sustained only minor injuries as he slipped away from the eastern door of the 'Baithaka' by crawling himself which would not have been possible, had he been sleeping on the western side of the deceased. It is also pertinent to note that injuries of this witness were examined on 12-9-78 as late as at 1.00 p.m. All the injuries were skin deep and the doctor, who examined him admitted in his statement before the Court admitted that injuries of Nebu Lal were superficial and could be self-inflicted or self-suffered. Nebu Lal further admitted that before his injuries were medically examined at Primary Health Centre they were neither bandaged nor any first-aid was given. Had he received incised bleeding injuries, it does not sound to reason that they would have been left unattended for almost about 2 hours. All these factors create a serious doubt in the claim of the witness of his having received injuries during the course of incident. In any view of the matter, even if this witness was present and had himself received superficial injuries at the hands of assailants it is doubtful if he had sufficient opportunity to identify them in darkness as the presence of two sources of light we have already doubted.
17. We, further find force in the submission of the learned counsel for the appellants that there is a great deal of doubt that First Information Report was recorded at the time it purports to be. According to the learned counsel for the appellants the first information report most likely came into existence in the morning after the arrival of police. According to prosecution case, the First Information Report was made at 6.30 on the next morning. The investigating officer admitted that he arrived at the scene of occurrence at 8.00 A.M., which is also borne out from panchayatnama, Ex. Ka. 6. Hargun P.W. 3 admitted in his cross-examination in clear words that First Information Report of the case was drafted after arrival of the investigating officer at the scene of occurrence. It would thus follow that up to 8 a.m. the F.I.R. had not come into existence. At this juncture it may also be worthwhile to mention that the postmortem examination was conducted on 13-9-78 and not on 12-9-78. The late postmortem examination further strengthens the defence argument that the first information report was made at a later point of time and was ante timed. The first information report thus loses its corroborative value.
18. For the reasons given above, we find ourselves unable to maintain the order of the learned Sessions Judge and in our considered opinion the case against the appellants is not proved beyond reasonable doubt and they deserve to get benefit of doubt.
19. Since Kanta sole appellant in Criminal Appeal No. 1806 of 1980 has died during the pendency of appeal, his appeal abates, While Criminal Appeal No. 1807 of 1980 is allowed. The judgment and order of the trial Court dated 10-7-1980 is set aside and the appellants are acquitted for the offences with which they were charged for and tried. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.