Allahabad High Court
The State Of U.P. vs Ram Sanehi S/O Mangli And Ram Vilas S/O ... on 28 April, 2005
Author: M.C. Jain
Bench: M.C. Jain, M. Chaudhary
JUDGMENT M.C. Jain, J.
1. The accused-respondents, Ram Sanehi and Ram Vilas were tried in S.T. No. 121 of 1980 before the Sessions Judge, Mainpuri for the offence punishable under Section 304 I.P.C. read with Section 34 I.P.C. By judgement dated 28.9.1981, he acquitted them and the State has preferred this appeal thereagainst. During the pendency of the appeal, Ram Vilas died and the appeal abated respecting him under order dated 16.10.2003. The appeal, therefore, survives only in respect of other accused-respondent Ram Sanehi.
2. The death of one Asgar was caused in this incident which took place on 17.3.1979 at about 3.00 P.M. in Nagla Kothi, hamlet of village Ilabans, Police Station Alau, District Mainpuri and the F.I.R. was lodged on 18.3.1979 at 12.30 A.M. at Police Station Kotwali, Mainpuri by Kamaruddin PW I who claimed himself to be an eyewitness. The case, as unfolded at the trial, was like this. The deceased Asgar was co-sharer with the accused Ram Sanehi growing sugarcane crop in one plot of this accused Ram Sanehi. Asgar owned a sugar-cane crushing Kolhu which he had installed in his village Nagla Kothi and he used to crush sugarcane of other persons also against payment. On the fateful day at about 3.00 P.M., Asgar was there at his Kolhu. His cousin Kamaruddin PW 1 was picking green fodder in his adjacent plot. Both the accused Ram Sanehi and Ram Vilas came there. Ram Sanehi was armed with Hansiya i.e. sickle and questioned Asgar as to why he had not yet crushed his sugarcane. Asgar replied that his bullock was ill and for this reason he could not crush his sugarcane. Altercation took place between the two with trading of abuses. Then Ram Sanehi asked his companion Ram Vilas to catch hold of Asgar. Ram Vilas caught hold of Asgar and Ram Sanehi struck Hansiya blows on him, causing injuries to him in his abdomen and the fingers/palm of his right hand. On being assaulted, Asgar raised alarm attracting his cousin Kamaruddin PW 1, Nakse, Nabibux PW 2 and a few others. They challenged the accused and tried to apprehend them, but they made their escape good by running from the spot. Kamaruddin PW 1 then took the injured Asgar from the place of occurrence to Kusmara and therefrom to Mainpuri city where he got him admitte in the District Hospital.
3. Dr. S.C. Gupta, PW 7 examined the injuries of Asgar on 17.3.1979 at 10.25 P.M. Following injuries were found on his person:
1. Incised stitched wound 6 cm x 0.25 cm on the left outer aspect of abdomen. 16 cm left and slightly above the umbilicus. Direction horizontal (under observation).
2. Incised wound 1 cm x 0.2 cm x skin deep on the palmer surface of little finger of right hand at its root.
3. Incised wound 1.5 cm x 0.25 cm x muscle deep on the palmer surface of ring finger over middle phalanx of right hand.
4. Incised wound 1.5 cm x 0.25 cm x muscle deep on the palmer surface of middle phalanx of middle finger of right hand.
5. Incised wound 0.5 cm x 0.25 cm x skin deep on the right palm, 2.5 cm below the root of little finger.
6. Abrasion 2.5 cm x 1.7 cm on the back of left 10 cm above ankle joint.
All the injuries except No. 1 were simple. Injury No. l was kept under observation of which X-ray was advised. All injuries except Injury No. 6 had been caused by a sharp edged weapon. injury No. 6 had been caused by friction.
4. Kamaruddin PW 1 prepared a written F.I.R. and he lodged the same at Police Station Kotwali Mainpuri, District Mainpuri, Connected papers were transmitted to the concerned Police Station. Initially, the case under Section 307 I.P.C. was registered. Investigation was taken up by R.K. Misra PW 4. He went to District Hospital, Mainpuri and interrogated the injured, complainant and other witnesses. Asgar remained in the District Hospital Mainpuri for about 4 days and he ultimately succumbed to his injuries at 1.00 A.M. on 21.3.1979. A memo was sent to Police Station Kotwali for preparation of inquest report of the deceased Asgar. S.I. R.K. Gupta PW 6 was deputed for the purpose. After drawing inquest report of the deceased and preparing other necessary papers, the dead body was sealed and sent for post mortem which was conducted by Dr. A.N. Saxena PW 3 on 21.3.1979 at about 3.45 P.M. The case was converted under Section 304 I.P.C.
5. As per the post mortem report, the deceased was aged about 60 years and about 3/4 day had passed since he died. The following ante-mortem injuries were found on his person:-
1. Stitched wound 6 cm long on anterior abdomen wall at 2 O'clock position, 16 cm away from umbilicus on left side containing 8 stitches.
2. Traumatic incised wound 1 cm x 0.2 cm x muscle deep on base of little finger of right hand of root on palmer side.
3. Traumatic incised wound 1 1/2 cm x 0.2 cm x muscle deep on middle phalanx of right hand ring finger palm side.
4. Abrasion 2 cm x 1.5 cm on back of left leg lower third.
5. Incised wound 1/2 cm x 0.2 cm skin deep on right palm 2.5 cm. below root of little finger.
6. Incised wound 1 1/2 cm x 0.2 cm skin deep on middle finger, middle phalanx of right hand palmer side.
6. The cause of death was shock and haemorrhage due to ante-mortem injuries.
7. The accused were booked to face trial at the conclusion of investigation.
8. The defence was of denial.
9. At the trial, the prosecution examined Kamaruddin PW 1 and Nabibux PW 2 as eyewitnesses apart from adducing medical evidence and that related to the investigation of the case. The evidence did not find favour with the trial Judge who recorded acquittal which is assailed in this appeal.
10. We have heard Ms. Usha Kiran, learned A.G.A. for the appellant-State and Sri Rakesh Pandey, learned counsel for the surviving accused-respondent Ram Sanehi. The record of the case is before us which we have perused. The submission from the side of the State is that the trial judge wrongly discarded the testimony of the eyewitnesses which was in conformity with the medical evidence without any justification and the acquittal recorded by him is had. The counsel for the accused respondent has tried to support the finding of acquittal recorded by the trial judge.
11. To begin with, it deserves mention that motive may not be significant in a case of direct ocular account But when the prosecution comes with a specific motive, it is desirable to test it on the anvil of reliability, more so when it is intimately associated with the start of the incident. In the case at hand, the motive assigned by the prosecution against the accused for the commission of this crime was that he (Ram Sanehi) had asked Asgar as to why he had not crushed his sugarcane at his Kolhu. Asgar had allegedly replied that he could not do so as his bullock was lying ill. Kamaruddin PW 1 and Nabibux PW 2 both, further stated that thereupon an altercation had taken place between the two with trading of abuses. Then Ram Vilas (deceased accused-respondent) had allegedly caught hold of Asgar on the asking of Ram Sanehi and the latter had inflicted Hansjya blows upon him (Asgar), Kamaruddin further deposed before the court below that the deceased Asgar had grown sugarcane crop that year as co-sharer with Ram Sanehi in a plot belonging to the latter. Ram Sanehi denied the allegation of the prosecution that the deceased Asgar had raised sugarcane crop as co-sharer with him in a plot belonging to him; that Asgar owned a cane crushing Kolhu in Nagla Kothi and that he used to crush the sugar cane crop of other persons at that Kolhu on payment. Anyway, Kamaruddin PW 1 stated in his cross-examination that the deceased Asgar had already crushed at his Kolhu 3/4th of the joint sugarcane crop (of Asgar and Ram Sanehi) and that sale proceeds of Gur which was prepared from the crop had been deposited with the father of Ram Sanehi accused. He also stated that only 1/4th of the crop of that plot remained to be crushed. He also stated that 1/4th of sugarcane crop was still standing and had not been cut. This being so, there could hardly be any question of Ram Sanehi's asking Asgar as to why he had not crushed his sugarcane crop at his Kolhu. To come to the point, the genesis of the incident entwined with motive did not answer the test of reliability and appeared to be concocted.
12. Secondly, the presence of both the eyewitnesses Kamaruddin PW 1 and Nabibux PW 2 was rightly held to be doubtful in our opinion. Kamaruddin PW 1 stated that he was picking grass inside his Arhar plot situated at a distance of 8-10 steps from Asgar's Kolhu. In the FIR, he stated that he was picking green grass in his own plot. He then contradicted himself by saying that he was picking grass at the time of incident in the field of Asgar deceased situated at a distance of 8 or 10 steps towards east-south from Asgar's Kolhu whereas his own plot was situated towards the north of Asgar's Kolhu after the bamba(canal). It came in evidence that village Ilabans is situated at a distance of about two furlongs from Asgar's Kolhu Nabibux PW 2 belonged to village Ilabans. Nabibux PW 2 stated that he had no house or field near Asgar's Kolhu. In order to explain his presence at Asgar's Kolhu, Nabibux stated that his own Kolhu had gone out of order and he had gone to find out if the Kolhu of Asgar was free and he could crush his own sugarcane crop at that Kolhu. He made varied statement that neither he had any field of his own nor any Kolhu and that he had grown sugarcane crop in the plot of one Balakram Brahmin belonging to his village on Batai basis and he was crushing that sugarcane crop at the Kolhu of Balaknim. It was Balakram's Kolhu which had gone out of order at the time of the incident. He admitted that there were several Kolhus in his own village Ilabans belonging to Thakurs and others. Under the circumstances, Nabibux could crush the sugarcane at one of these Kolhus in his own village Ilabans instead of going to the Kolhu of Asgar to find out if he could crush sugarcane at his Kolhu. Needless to say, the crushing of sugarcane at the Kolhu of Asgar was cumbersome as it required the carrying of sugarcane to that spot. In natural course of things, one would avoid such extra and additional inconvenience and would prefer to crush the sugar-cane at any of nearby Kolhus. There could be no particular reason for his having gone at Asgar's Kolhu at that point of time.
13. It is, however, to be pointed out that both the eyewitnesses admitted before the lower court that they had not got the inspection of the place of the occurrence made by the Daroga. Kamaruddin PW 1 further stated that he had not shown to the Daroga the plot in which he was picking the green grass at the time of the incident. The scrutiny of the evidence of the two eyewitnesses indicated as if they did not know the accused Ram Vilas at any time before this incident. Then, his naming in the F.I.R. was shrouded in dubious circumstances. It also came down from the cross-examination of Kamaruddin PW 1 that he had reached at the spot 10-12 minutes after the incident to find Asgar lying injured on the ground with his intestine coming out of his abdomen. He also stated that Nabibux PW 2, Nekse, Shahabad and Kamaluddin had reached the spot about 15 minutes after his reaching there. His this admission indicated that neither he himself nor Nabibux PW 2 had actually seen the incident.
14. Kamaruddin PW l stated that the first took the injured Asgar, to his house and after about 1/2 hour he took him to Kusmara in bullockcart and thereafter to Mainpuri. Under the circumstances, Kamaruddin PW 1 would have admitted the injured in the District Hospital Mainpuri, but the truth of the matter was that he was admitted in the Hospital by Jumman, brother of the victim. He stated that he had got the wound stitched in Government Dispensary Kusmara before proceeding to Mainpuri. Dr. S.C. Gupta PW 7, examined the victim in the District Hospital, Mainpuri on 17.3.1979 at 10.25 P.M. and found the abdomen wound in stitched form. It appeared that wound of Asgar had been stitched by some private doctor, and not by the doctor of Government Dispensary as the doctor of the Government Dispensary would have examined all the injuries of Asgar preparing an injury report and would have thereafter referred him to District Hospital, Mainpuri.
15. Another factor is that his statement creates doubt about the genuineness of the F.I.R. also. He stated that several villagers including Ram Vilas Pandey were accompanying him when he was taking the injured Asgar from his village to Kusmara. Ram Vilas Pandey had obtained thumb impression of Asgar saying that F.I.R. in respect of the incident would be lodged at Kusmara Police Station so that Asgar's medical treatment could be held in Government Dispensary at Kusmara. He, too, had put signature on the said paper by way of a witness. He further stated that Ram Vilas Pandey had recorded the F.I.R. at that time and he could not deliver the same at the Police Station Kusmara outpost. That F.I.R. relating to the incident had been suppressed and not produced before the court at all. So, the genuineness of the present F.I.R. relied upon by the prosecution is rendered doubtful, casting cloud on the entire prosecution case.
16. The site-plan of the place of occurrence allegedly prepared by the Investigating Officer was not produced before the trial court at all.
17. So, looking to all above aspects and circumstances, the trial judge was perfectly justified in drawing conclusion that no reliance could be placed on the testimony of the two witnesses Kamaruddin PW 1 and Nabibux PW 2.
18. The trial judge, in our opinion, also rightly disbelieved the so-called statement of Asgar allegedly recorded by the Investigating Officer R.K. Mishra PW 4 on 19.3.1979 under Section 161 Cr.P.C. which was sought to be relied upon as his dying declaration. As per the testimony of the Investigating Officer R.K. Misra, PW 4, he had interrogated Asgar deceased in the District Hospital Mainpuri on 19.3.1979 and he had recorded his statement there. According to him, he forwarded the parcha of his case diary dated 19.3.1979 to the C.O.'s office on 20.3.1979. However, the perusal of the Case Diary dated 19.3.1979 showed that no date was mentioned beneath the endorsement of C.O. on the margin by the side of the statement of Asgar. The C.O. had thereafter made the endorsement to the effect that he had examined the statement of Kamaruddin and Nekse on 30.4.1981 and of Nabibuxon 1.5.1981. According to the Investigating Officer R.K. Misra PW 4, he had got mentioned in the G.D. of Police Station. Alau the fact that he had examined the prosecution witnesses including Asgar deceased or 19.3.1979 but the General Diary of Police Station Alau had not been produced before the court. In case he had interrogated Kamaruddin PW 1 and others including the victim Asgar on 19.3.1979, then he would have inspected the site also on that very day in the presence of the complainant and the eyewitnesses. But he inspected the site as late as on 1.5.1979 allegedly in the presence of the complainant Kamaruddin PW 1. As mentioned earlier, Kamaruddin clearly stated that he never got the scene of occurrence inspected by the Daroga. We should record at the risk of repetition that the site plan was not at all produced before the court below on the pretext that it was missing and it could not be traced in the office of the C.O. Seemingly, the statements of deceased Asgar, Kamaruddin etc. had been recorded by the Investigating Officer in accordance with the F.I.R. with slight variations. According to the Investigating Officer, he interrogated Asgar in the District Hospital with the permission of the doctor and also in the presence of that doctor. He could not tell the name of that doctor. Nor could he file any written permission of the doctor for the interrogation of Asgar. According to him; he had put only one question to Asgar viz., as to what incident happened with him and Asgar then made the entire statement. The copy of his statement was said to be Ext.Kha 4. The trial judge rightly observed that it was improbable and unbelievable that to answer a single question put to him by the Daroga, Asgar would have made the lengthy statement imputed to him. The perusal of language and wordings of the statement indicated that Investigating Officer had himself recorded this statement with a view to infuse strength in the prosecution case in his own way.
19. The gist of the above discussion is that the testimony of the two eyewitnesses was not reliable. No reliance could be placed on the alleged dying declaration either of the deceased. The view taken by the trial judge in acquitting the accused is a reasonable one based on judicious scrutiny of the evidence and attending circumstances. The genesis of the incident was concealed by the prosecution and twisted version was presented which did not answer the test of acceptability. The genuineness of the F.I.R. was shrouded in dubious circumstances. No doubt, Asgar was the victim of violence, but the prosecution could not prove the guilt of the accused respondent, namely. Ram Sanehi who alone now survives (other one Ram Vilas having died).
20. In the net conclusion, we do not find any merit in this appeal and we hereby dismiss it.
21. The judgement be certified to the lower court.