Allahabad High Court
State Of U.P. vs Vijai Pal Singh And Ors. on 24 February, 1989
Equivalent citations: 1990CRILJ948
JUDGMENT B.L. Loomba, J.
1. This State appeal is against the judgment and order dated 21-7-78 of Shri P. N. Roy, the then Sessions Judge, Kheri, whereby he acquitted all the 10 accused-respondents of the charges under Sections 147/148/302, read with Section 149 of the Indian Penal Code and Section 201, read with Section 149, of the Indian Penal Code, for which they stood trial in S.L. No. 261 of 77, Bhagwandin aged about 60 years resident of village Kakraha, Police Station Maigalganj, district Kheri was murdered and his dead body was found lying on the Rasta in the vicinity of the temple near the village surrounded by standing sugarcane fields on both its sides on 21-9-76. The severed head was found in the ditch near the place of murder. According to the prosecution case this murder took place at about 11 a.m. on 21-9-76 when the deceased along with his son Ram Chandra, who is complainant in the case and has appeared as P.W. 1, was going to the temple for the Darshans. Deceased Bhagwandin had crossed normally 2/3 portion of the sugarcane field of accused-respondent Rampal Singh when all the accused persons who were lying in ambush in the field suddenly appeared armed with their respective weapons. The deceased was challenged and the accused persons started assaulting him. He raised alarm and tried to run but the accused, persons managed to surround him and charged him with their respective weapons. Bhagwandin fell down. Accused Vijai Pal Singh, Siya Ram allegedly chopped off his head with Banka while Rampal Singh tried to carry away the head. Meanwhile Ram Chandra son of the deceased who was following the deceased raised alarm which attracted Khew Raj, Ram Shanker, Kashi and Janki and they tried to intervene. Thereupon Rampal Singh threw the head in the nearby ditch called a Talab and all the accused persons managed to make good their escape.
2. Complainant Ram Chandra is said to have stayed at the spot for about two hours for safety of the dead body. When the Chaukidar of the village arrived he wrote the first information report and went to the police station, situate at a distance of about 16 miles and lodged the first information report at 9.05 p.m. As usual the case was registered on the basis of the first information report. The Station Officer of the Police Station was not present at the police station and all the papers were sent to him by the constable clerk through Jiwan Singh, Constable. Shiv Murti Singh, Sub-Inspector, who is said to have been coming back to the Police Station received the papers on 22-9-76 from Constable Jiwan Singh at about 7 a.m. He is stated to have immediately proceeded to the place of occurrence where he arrived at about 9.30 a.m. The formalities relating to the inquest report were carried out and the two portions of the dead body were sealed and sent through Jiwan Singh, Constable to the mortuary for post-mortem examination. Lot of blood was found at the place where the dead body was lying and specimens thereof were taken, duly sealed and despatched by the Investigating Officer. The site-plan was prepared and Investigating Officer proceeded for the examination of the witnesses under Section 161, Cr.P.C.
3. The post-mortem examination was done by Dr. L. P. Shukla (P. W. 3) on 23-9-76 between 4.45 and 5.30 p.m. The deceased and received 9 injuries on his body, 5 incised wounds on the neck, shoulder and chest, 3 lacerated wounds, one on the right middle finger and third one on left leg. There was an abraded contusion on the right leg. On the other portion of the body, namely, the head, there were 14 injuries being 8 incised wounds, one fractured wound, 3 contusions and 2 lacerated wounds on face, forehead, nose, mouth, eye-brows and ears. All the face bones were found fractured. Frontal bone was found fractured on both the sides. Left side temporal bone was also found fractured and the base of the skull too was found fractured. In this way, the deceased apparently was subjected to repeated merciless blows and the head portion as mentioned was already chopped off.
4. According to the prosecution, there was an old outstanding enmity between the deceased and accused-respondent Rampal Singh, the main person who was behind this crime. The enmity started between the two sometime 18-19 years prior to the occurrence when Bhagwandin purchased some land in this village. Rampal Singh had set his eyes on this land and wanted to purchase the same and this became the starting point of enmity between the two. Bhagwandin was the Head Master of a Junior High School in this village and was also working as Sub-Postmaster of the village. Rampal Singh, it is said, was the President of the Managing Committee of the said Junior High School and in the year 1956 the vote of no confidence motion was moved and passed against him. According to the prosecution case, behind this no confidence motion was the deceased Bhagwandin and that further embittered the relations between the deceased and Rampal Singh. Rampal Singh was a candidate at the 1977 assembly elections but lost. Deceased Bhagwandin is said to have actively canvassed against Rampal Singh. In 1970 complainant Ram Chandra, son of the deceased was attacked and a case under Section 307/325, I.P.C. was registered against accused Rampal Singh, Shishupal Singh Tauley and two other persons. This case was pending trial in the Court of Session at the time of this occurrence. The case of arson in which Chhappar of farm Chakki was allegedly burnt was filed against Babu, Gajraj and Paras Ram accused in the year 1975. This case was also pending trial at the relevant time. In the year 1976 the police set up a case under Section 107/116, Cr.P.C. against both the parties and leaving aside Ram Chandra, Bharat all other accused persons are parties to those proceedings. In this way, the relations between the deceased and his family were allegedly strained and bitter right from 1956 and continuing at the time when the crime with which we are concerned here was committed.
5. Vijay Pal Singh accused is the son of Ram Pal Singh, Siya Ram is the cousin brother of Ram Pal Singh, Tauley, Sakir, Ram Chandra and Bharat were said to be servant of Ram Pal Singh, Gajraj and Paras Ram are brothers and Babu is their cousin brother. These three are said to be supporters of accused Ram Pal Singh. Accordingly, all the accused persons are said to be connected persons and bearing enmity with the deceased.
6. The learned Sessions Judge even though accepting that the relations between the family of the deceased and that of accused Ram Pal Singh were strained and inimical has, however, recorded that there is absence of any sufficient and immediate motive for commission of the crime by the accused persons. In para 32 of the judgment it was mentioned that "becase of the enmity Rampal Singh might have been instrumental in seeking Bhagwandin having been murdered. But we do not think that he along with his son Vijai Pal Singh and Ors. would appear on thhe scene at about 11 a.m. to commit the murder of Bhagwandin so that the witnesses could see the actual commission of the murder". Proceeding further it was mentioned that "in this case there is one positive fact which shows that there was one Jagannath who is a criminal and out-law and was under the influence of Rampal Singh as Ram Chandra (P.W. 1) says that this Jagannath could easily be hired by Ram Pal Singh to achieve what he desired. In this way, the approach of the learned Sessions Judge has been that even though enmity was subsisting and Ram Pal Singh could have the deceased eliminated in some different way but there was absence of strong motive to Ram Pal Singh to have committed this crime and that too at the time and manner alleged in the prosecution case. We are unable to appreciate this approach of the learned Sessions Judge. The fact that there was enmity between the deceased and appellant Ram Pal Singh is established beyond reasonable doubt. Even according to the accused persons they have been falsely implicated because of enmity between the family of the deceased and Ram Pal Singh. There appears, no doubt, whatsoever that murder was committed at the place alleged by the prosecution. The murder and nature of the injuries received by the deceased would clearly make out that the crime was committed by a number of persons which could be 7 or 8 or even 10 as alleged in the prosecution case. The murder could be committed even by one person who could successfully shoot him down, nevertheless that is hardly a point of any relevance, upon analysis of the evidence we are satisfied that Ram Pal Sing appellant had sufficient motive for the commission of the crime and his supporters could join hands to accomplish the task.
7. As is mentioned above, according to the prosecution case Ram Chandra, son of the deceased and complainant in the case was going along with the deceased and on the alarm raised by the deceased and the complainant Khewraj, Janki, Ram Chander and Kashi Ram who also going to the same temple had rushed and seen the actual occurrence. In this way, the said four persons besides the complainant were named as eye-witnesses in the first information report. Three, out of them, namely complainant Ram Chandra (P.W. 1), Khewraj (P.W. 2) and Ram Shanker (P.W. 4) were examined at the trial.
8. The finding of acquittal has been recorded by the learned Sessions Judge, mainly on the following grounds, namely :--
That even though the relations between the deceased and the accusd persons were strained and animus was there that was not sufficient to commit murder, medical evidence was not consistent with the direct evidence, there was delay in the lodging of the first information report, that the eye-witnesses were chance witnesses and the incident appears to have been committed sometime in the early hours of the morning of 21-9-76 and was not seen by any of the witnesses who claimed to b eye-witnesses and have come to prove the case.
9. Shri Anadi Banerjee, learned Assistant Government Advocate, appearing for the State has argued the case with ability and vigour. He has taken us through the judgment of the learned Sessions Judge and the statements of the three eye-witnesses and other material on record. The submissions strenuously raised are that there is no inconsistency between the medical and the direct evidence and the learned Sessions Judge has rejected the testimony of the prosecution witnesses without just and sufficient reasons. His attack is to the very approach of the learned Sessions Judge in dealing with the matter. It is submitted that the learned Sessions Judge has misdirected himself in the matter of appreciation of medical evidence and having formed the view as to the absence of consistency between the medical and the direct evidence, the learned Sessions Judge has considered all other aspects in that perspective. We may now proceed to consider the various submissions raised by the Assistant Government Advocate.
10. The learned Sessions Judge has given various reasons for arriving at the conclusion that the murder appears to have been committed sometime in the early hours of the morning and not at 11 a.m. as is the case of the prosecution. A perusal of the post-mortem examination report in respect of the severed head of the deceased would show that hair were loose, skin was loose, face was distorted and maggots were present. Brain matter was liquified and coming out spreading all over face. Right eye was bulging. Left eye was missing. Mouth was open and tongue was between the teeth. The post-mortem examination of the head was done on 23-9-76 at 4.45 p.m. i.e. about 2 1/4 days after the alleged time of murder. The probable time of death recorded in the post-mortem examination report was 21/4 days. Dr. L. P. Shukla when in the witness box as P. W. 3 testified his opinion as to the probable time of death as mentioned in the post-mortem examination report to be correct. In para 11 of his statement he clearly stated that the deceased could have died at 11 a.m. on 21-9-76. It appears, he was confronted in the cross-examination with the following observatins of Modi in his book on Medical Jurisprudence and Toxicology 1969 Edition, pages 144 and 145 :--
"The adult Brain -- The putrefaction first begins at its base, and then proceeds to the upper surface. It is hastened if any injury to the brain or skull is present, The brain becomes soft and pulpy within twentyfour to forty-eight hours in summer, and becomes a liquid mass from three to four days."
(at page .144) "Putrefaction in water -- The rate of putrefaction of a body in water is more reliable that that of a body exposed to the air or interred, as the tempeature of the water is more uniform, and the body is protected from the air, as long, as it remains submerged in water ordinarily, a body taken twice as much time in water as in air to undergo the same degree of putrefaction. Putrefaction is retarded, when a body is lying in deep water and is well protected by clothing, while it is hastened in a body lying in water contaminated with sewage, putrefaction is accelerated, when once a body has been removed from water, as the tissues have imbibed much fluid. In such a body decomposition is so rapid, that the changes occurring in twenty four hours exposers to the air will be more marked than those ordinarily resulting from fortnight's further submersion." (Page 145)
11. When confronted with the above-quoted observations contained in Modi's Medical Jurisprudence Dr. Shukla stated, vide para 15 of his statement, that in this case since brain was in the form of liquid mass, "more probably the duration is nearer towards three days". In para 22 Dr. Shukla stated that if the head was lying in water and when taken out decomposition would not be accelerated. We agree with the submission of the learned Assistant Government Advocate that this opinion of Dr. Shukla that decomposition would not accelerate if the dead body placed in water is taken out is wrong and against the observations contained in Modi's Medical Jurisprudence. The observation on this point in Modi's book at page 145 is quite clear, when stated in the following words:
"Putrefaction is accelerated, when once body has been removed from water, as the tissues have imbibed much fluid. In such a body decomposition is so rapid, that the changes occurring in twenty-four hours ex-posers to the air will be more marked than those ordinarily resulting from a fortnight's further submersion."
In the present case the body as per the prosecution case remained in water for about 24 hours (from 11 a.m. on 21-9-76 till it was taken out around 10a.m. on 22-9-76) and thereafter till the time of its post-mortem examination at 4.45 p.m. on 23-9-76 it reained out of water. In this way, the decomposition of the head would have much accelerated and rapid during these about 30 hours. In this view of the matter it is difficult to uphold the view of the learned Sessions Judge as recorded in para 18 of the judgment that the opinion of doctor was consistent with the observation in Modi's book or that the observations on the point in Modi's book are not applicable to the present case. Learned Sessions Judge, thus, recorded unjustified finding that on the basis of post-mortem examination report "there is every probability that the person must have been murdered in the early hours". On the other hand, we are of the view that the medical evidence on this material point is not inconsistent with the prosecution case as to the time of occurrence and it is equally probable that the murder was committed at the time alleged by the prosecution.
12. Deceased received five incised wounds, three lacerated and one abraded contusions and one punctured wound on the headless part of the body of the deceased. According to the statement of the complainant all the accused persons had caused blows by their respective weapons while the deceased was standing and that no blows were struck after the deceased fell down. Three accused persons were said to be carrying Bhala but there was only one punctured wound found on the body. Learned Sessions Judge has taken into account this factor to say that the medical evidence is not consistent with the prosecution story. This factor in our view is not, however, very important inasmuch as according to the statement of the complainant he as also the other person were standing at, and saw the occurrence from, some distance and further the deceased had been surrounded by the accused persons. In this situation, the persons who may have been present to see the occurrence could not reasonably have any precise observation as to be minute details relating to the manner of attack. This aspect cannot merit that importance which the learned Sessions Judge attributed in assessing the merits of the prosecution case.
13. Other aspect relating to the medical evidence pertains to the condition of the small intestine and large intestine. The lower part of the small intestine was full and the upper part of large intestine was also full, rectum was, however, empty. On that basis the learned Sessions Judge formed the view that the deceased had not eased when murdered and this condition would normally be in the early hours of the day when the village people got up and go out to respond to the call of the nature. This factor is dependent on the habits of the particular persons. However, the normal position in this case of village people as mentioned by the learned Sessions Judge appears to be justified. As such, this factor carried a probability that the murder was committed not at 11a.m. as alleged by the prosecution. However, this cannot be taken as a conclusive factor as stated by the learned Sessions Judge while remarking that "Therefore, this test also points out that the person must have been murdered in the early hours of the day". An affirmative finding by the use of the word 'must' can hardly be justified while dealing with factors like this.
14. We would like at this stage to deal with the direct evidence on record. The prosecution examined three persons claiming as eye-witnesses of the occurrence namely, complainant Ram Chandra (P.W. 1) son of the deceased, Khewraj (P.W. 2) and Ram Shanker (P.W. 4). Khewraj (P.W. 2) is a resident of village Bhagautipur. The temple in question, according to the testimony of this witness is situate at a distance of about one mile from his village according to him he had gone to the temple for Darshana, when he heard alarm and rushed to the spot. The place of occurrence does not fall in. his way while going from his village to the temple. The learned Sessions Judge has disbelieved this witness not merely because he is a chance witness but also on the intrinsic value of his testimony. Initially he stated that he is worshipper of Shanker Mahadeo from a year before the time of occurrence and in the months of Sawan and Bhadon he used to offer Bel Patti on Lord Shiv deity. He however changed the statement to deny that he was worshipper of Lord Shiv and according to him on Tuesdays he used to come for Darshana of Hanumanji. We are taken through the entire statement of this witness and the testimony of the witness is clearly unimpressive and unpersuasive. The day of occurrence was Tuesday and when confronted with this situation the witness resiled from the important aspect of his statement that he was Upasak (worshipper) of Lord Shiv and had gone to the temple for Pooja of Lord Shiva. His replies were evasive as to the alleged enmity with appellant Ram Pal Singh. Sahabdin is the brother of this witness. Firstly, he denied that Sahebdin was convicted in a criminal case but he later conceded this fact. He could not deny that Jeet Ram uncle of appellant Ram Pal Sing was a witness against Sahebdin in that case. He was also indefinite when asked whether Sardar, uncle of Ram Pal Singh had given evidence in a case against the brother of the witness. It is difficult to place implicit reliance on the testimony of a witness like this, more particularly when he is not a natural witness and falls in the category of a chance and interested witness.
15. The position of Ram Shanker (P.W. 4) is also just the same. He is also not a resident of the same village or of any surrounding village. He is a resident of village Madhopur in the adjoining district of Shahjahanpur. According to him he used to come to village Kakraha to sell cloth in the market held evey Tuesday. He comes from his village to Shahjahanpur on cycle and then on bus which drops him near Kakraha. The witness stated that he had arrived in this village a day earlier i.e. Monday and stayed at the house of Shri Krishna Yadav and had gone to the temple in question for darshans when he heard the alarm and rushed to reach near the place of occurrence and saw the occurrence. He was asked as to whether market is held (sic) village on Saturdays also but the witness stated that he did not know whether or not the market was held on Saturdays. Several persons admittedly uncle of this (sic) Sewak Ram had two daughters and a suggestion was made to him that one of them was married to Ram Chandra (P.W. 1). The witness stated that he did not know whether one of the daughters of Sewak Ram is married to Ram Chandra P.W. 1. This is unbelievable that the witness does not know as to whether his own cousin sister was married and the evasive reply given to a question like this clearly exposed the witness of being reliable. The entire statement of this witness has also been read over before us and we agree with the views of the learned Sessions Judge that this witness too is not worthy of placing implicit reliance upon. He is clearly a chance witness and by its very nature his testimony is unimpressive and unreliable.
16. The learned Sessions Judge, thus, rightly discarded the statements of two out of the three eye-witnesses, namely Khewraj (P.W. 2) and Ram Shanker (P.W. 4). There then remains the statement only of complainant Ram Chandra (P.W. 1), the son of the deceased. The deceased was a teacher by profession and was also working as Post Master of the village sub-Post Office. When asked about the daily routine of the deceased Ram Chandra (P.W. 1) stated that the deceased used to go the post office at about 7.30 in the morning, he would work there for about one hour or so and return to his house and thereafter would go the temple around 11 a.m. This was the positive case of the prosecution that on the fateful day also the deceased had gone to the post office and attended to his work and put his signatures on the Chhapiya Pustika Stamp Book of the Post Office. At the trial the Public Prosecutor had moved an application to bring on record this Chhapiya Pustika and to lead evidence to prove that the same was carrying the signature of the deceased on the fateful day. This aspect of the matter was noticed by this Court during the course of hearing of this appeal and by order dated October 12, 1987 this Chhapiya Pustika, paper No. Kha, 126, was admitted on record as additional evidence under Section 391 of the Cr.P.C. The relevant entries were proved by the statement of Ram Chandra (P.W. 1) who was recalled. From the side of the appellants G. P. Saxena, Handwriting Expert was examined and according to the report and statement of G. P. Saxena, Handwriting Expert the signatures in question on the Chhapiya Pustika are not of the same person (deceased) whose admitted signatures were compared with the disputed signatures. We have been taken through the statement of Ram Chandra (P.W. 1) on this point as also the statement of the Handwriting Expert along with his report. We are of the view that the prosecution has in any case failed to establish by any clear and dependable evidence that the signatures in question were that of the deceased. In other words it has not been established beyond doubt that the deceased had attended to his official work at the Sub-Post Office between 7.30 and 10 a.m. on the fateful day. This had been the prosecution case that the working hours of the Sub-Post Office were 7,30 to 10 a.m. Had the prosecution established this case that the deceased had attended to his work in the Sub-Post Office between 7.30 and 10 a.m. on the relevant date that would have served as a great assuring factor that the murder took place at the time i.e. 11 a.m. as alleged in the prosecution case. The failure to establish this point in a way weakens the prosecution case. As had already been discussed the testimony of two other eye-witnesses, namely, Khewraj (P.W. 2) and Ram Shanker (P.W. 4) has been discarded as unreliable. There is, thus the testimony of only one witness, namely, the complainant who is obviously a highly interested person. It is unsafe to base conviction on the solitary statement of an interested person unless it gathers corroboration from some assuring factors. In the present case there is absence of any important assuring factor to lend strength to the value of the testimony of complainant Ram Chandra (P.W. 1). There is no satisfactory explanation why independent evidence could not be forthcoming to prove the case. Admittedly there were some more persons present at the temple at the relevant time who too would have heard the alarm and rushed to the spot. In the first information report Janki, Kashi Ram were expressly named but they have not been, examined on the usual plea of having been won over. Independent witnesses could be collected and placed before the Court at least as to the usual routine of the deceased, namely, that he would go to the temple after finishing his work at the Sub-Post Office after 10 a.m. This is the admitted position that the Rasta in question is used by the residents of this village for going to the temple. On both the sides of this Rasta sugarcane crop in good height was standing and the assailants could choose the spot to way lay the deceased and commit his murder. What appears quite probable as such is that the deceased was going to the temple through this Rasta when he was way laid and done to death. Important question as rightly mentiond by the learned Sessions Judge has been as to the time of commission of this crime. If a serious doubt stands raised as to the time of this murder that by itself would impair and undermine the value of the testimony of Ram Chandra complainant. It is in this context that the circumstances of the case merit important consideration. Ram Chandra stated that the deceased used to go the temple bare footed and used to carry Panda when going in the darkness. The deceased was carrying Danda and was not bare footed at the relevant time. The fact that the deceased had not eased himself when he was done to death is a doubtful feature in the prosecution because normally the village people go out to respond to the call of nature in the morning and in any case before going for prayers at the temple. According to Ram Chandra (P.W. 1) the deceased was sensing danger to his life and for that purpose he used to be accompanied by some one. For the same reason Ram Chandra (P.W. 1) is said to have accompanied the deceased. However, according to his own saying he was not carrying even a lathi. One of the injuries found on the head of the deceased being injury No. 5 was contusion 13 cms. x 8 cms. Dimensions of this injury in width being 6 cms. would not be caused by a normal lathi and this is what was stated by Dr. L. P. Shukla (PW 3). According to him this injury could not have been caused by a lathi. In this way, this injury could have been cuased by a weapon having a wide blade. No such weapon, according to the prosecution case appears to have been used. In the entirety of the facts and circumstances, thus, statement of Ram Chandra (PW 1) cannot be taken on its face value and to be treated sufficient to prove the prosecution case beyond reasonable doubt.
17. In the course of our judgment we have not been able to agree with some of the views and findings of the learned Sessions Judge. However, we agree with his appreciation of the testimony of the three eye witnesses produced by the prosecution to prove the case. By its very nature the testimony of the three witnesses is unconvincing and in the context of facts and circumstances of the case as a whole it would be unsafe to base conviction against the accused respondents more so in appeal against acquittal recorded by the learned trial court. The State appeal, as such, merits rejection.
18. Accordingly, the State appeal is dismissed.