Allahabad High Court
Siya Ram @ Siya Ram Rawat vs State Of U.P. on 7 June, 2022
Bench: Ramesh Sinha, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW BENCH, LUCKNOW
Reserved on 14.03.2022
Delivered on 07.06.2022
Court No. - 1
Case :- CRIMINAL APPEAL No. - 1517 of 2012
Appellant :- Siya Ram @ Siya Ram Rawat
Respondent :- State of U.P.
Counsel for Appellant :- Sri Ajay Veer Singh,
Counsel for Respondent :- Sri Vishwas Shukla, Additional Government Advocate
WITH
Case :- CRIMINAL APPEAL No. - 1261 of 2012
Appellant :- Ram Jas Rawat @ Ram Yash Rawat
Respondent :- State of U.P.
Counsel for Appellant :- Sri Vimal Kishor Singh
Counsel for Respondent :- Sri Vishwas Shukla, Additional Government Advocate
WITH
Case :- CRIMINAL APPEAL No. - 1262 of 2012
Appellant :- Rang Bahadur Yadav @ Rangai
Respondent :- State of U.P.
Counsel for Appellant :- Sri Girish Kumar Kannojia
Counsel for Respondent :- Sri Vishwas Shukla, Additional Government Advocate
Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Saroj Yadav,J.
(The judgment is pronounced in terms of Chapter VII Sub-rule (2) of Rule (1) of the Allahabad High Court Rules, 1952 by Hon'ble Ramesh Sinha, J.) (Per Mrs. Saroj Yadav, J. for the Bench)
1. All these three appeals have been filed by the convicts/appellants Siya Ram @ Siya Ram Rawat, Ram Jas Rawat @ Ram Yash Rawat and Rang Bahadur Yadav @ Rangai against the impugned judgment and order passed by Additional Sessions Judge, Court No. 3, Faizabad in Sessions Trial No. 262 of 2011 (State Versus Siya Ram @ Siya Ram Rawat & others) arising out of Case Crime No. 136 of 2011. Convicts/appellants Siya Ram @ Siya Ram Rawat and Rang Bahadur Yadav @ Rangai were sentenced under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short "I.P.C.") and punished with life imprisonment coupled with a fine of Rs.10,000/- In default of payment of fine further imprisonment of six months was awarded. Convicts/appellants Siya Ram and Ram Jas Rawat Rawat were also held guilty under Section 504 IPC and punished with one year rigorous imprisonment. Convict/appellant Rang Bahadur Yadav @ Rangai was acquitted of charge frame under Section 504 IPC. Further all three convicts/appellants were acquitted of charges framed under Sections 506 and 120-B IPC. Convict/appellant Siya Ram was also acquitted of charge framed under Section 4/25 Arms Act.
2. Shorn off unnecessary details, the facts necessary for disposal of these appeals are:-
A first information report (in short "F.I.R.") was lodged by the complainant Ramu Yadav against the convicts/appellants Siya Ram and Ram Jas Rawat by presenting a written report Exhibit Ka-1 on 20.03.2011, at Case Crime No. 136 of 2011 at 14.30 hours, Police Station Patranga, District Faizabad. In the written report, it was stated that on 20.03.2011 at about 2 O'clock during the day Siya Ram and Ram Jas Rawat both son of Rati Pal, resident of village of the complainant, came infront of his house and started abusing. On this his brother Shiv Raj, who was having meals at that time, came out. As soon as Shiv Raj came out Siya Ram assaulted upon him with knife, he fell down being injured, the complainant raised alarm then his uncle Ram Baran, Mahadev son of Nannu, Lalla and many people of the village reached at the spot and when they tried to catch the accused persons, then Siya Ram aimed with knife on the complainant also and Ram Jas armed with Lathi also threatened to kill the complainant. The complainant and his uncle carried Shiv Raj along with other in a push-card to police station. The F.I.R was lodged under Sections 307,504 and 506 IPC. Later on, after the death of injured Shiv Ram Section 302 IPC was also added on the same day. The case was investigated. During investigation the complainant and Mahadev, Ram Baran, Shiv Kumar, Lalla and Pradeep filed affidavits implicating Rang Bahadur Yadav @ Rangai along with Siya Ram and Ram Jas and prayed for action against them. After investigation, Investigating Officer submitted charge sheet No. 44 of 2011 against convicts/appellants under Sections 302, 120-B, 504 and 506 IPC. A separate charge sheet no. 27/11 was also submitted against convict/appellant Siya Ram under Section 4/25 Arms Act for the alleged recovery of weapon of offence i.e. knife at the pointing out of the convict Siya Ram. The Magistrate concerned after taking cognizance of the offence committed the case to Sessions Court for trial. The Sessions Court framed charges against the convicts/appellants. They denied the charges and claimed to be tried.
3. The prosecution in order to prove the charges framed against the convicts/appellants examined the following witnesses:-
(I) P.W. 1- Ramu Yadav (the complainant);
(ii) P.W. 2-Shiv Kumar (eye witness);
(iii) P.W. 3- Smt. Chhedana (eye witness);
(iv) P.W. 4- Dr Ram Bhavan Arya, who conducted autopsy on the cadaver of Shiv Raj (deceased);
(v) P.W. 5- Sub-inspector Lal Bahadur Singh, Investigating Officer;
(vi) P.W. 6- Sub-inspector Ram Pratap Kushwaha, who sent the cadaver of Shiv Raj for postmortem and prepared relevant documents and also completed the proceedings related to Panchayatnama;
(vii) P.W. 7- Head Constable Dinesh Kumar, who registered the F.I.R and made entry in the relevant G.D. and prepared the Chik F.I.R.;
(viii) P.W. 8- Sub-inspector Rajesh Chandra, second Investigating Officer of the case;
(ix) P.W. 9- Retired Sub-inspector Rajendra Prasad Mishra, who recovered weapon of offence at the pointing out of the convict/appellant Siya Ram.
(x) P.W. 10- Sub-inspector Jawahar Lal Kannaujia, who investigated the case crime no. 150/2011 under Section 4/25 Arms Act against the convict/appellant Siya Ram for recovery of weapon of offence i.e. knife.
4. Necessary documents were also proved by the prosecution i.e. Exhibits Ka-1 to Ka-21 these are as under:-
(I) Exhibit Ka 1- written report;
(ii) Exhibit Ka 2- Post mortem report of deceased Shiv Raj;
(iii) Exhibit Ka 3- Site plan of the place of incident;
(iv) Exhibit Ka 4- Recovery memo of blood soaked and plain soil;
(v) Exhibit Ka 5-Recovery of knife, the weapon of offence;
(vi) Exhibit Ka 6-Site-plan of place where weapon of offence was recovered;
(vii) Exhibit Ka 7- Carbon copy of General Diary;
(viii) Exhibit Ka 8- Report of Medical Officer mentioning that Shiv Raj was brought dead;
(ix) Exhibit Ka 9- Panchayatnama;
(x) Exhibit Ka 10- Photo-nash;
(xi) Exhibit Ka 11- Police Form No. 13;
(xii) Exhibit Ka 12- Report of Reserve Inspector (R.I) for getting the postmortem done;
(xiii) Exhibit Ka 13- Letter to C.M.O for postmortem;
(xiv) Exhibit Ka 14- Report to C.M.O. for preserving the clothes of the deceased;
(xv) Exhibit Ka 15- Specimen seal;
(xvi) Exhibit Ka 16- Chik F.I.R.;
(xvii) Exhibit Ka 17- Carbon-copy of General Diary 20.03.2011 -15/14.30;
(xviii) Exhibit Ka 18- Charge-sheet No. 44 of 2011 in Case Crime No. 136 of 2011;
(xix) Exhibit Ka 19- Site-plan of the place of recovery of knife;
(xx) Exhibit Ka 20- Charge-sheet No. 27/11 in Crime No. 150 of 2011 under Section 4/25 Arms Act;
(xxi) Exhibit Ka 21- Chik FIR of Case Crime No. 150 of 2011 under Section 4/25 Arms Act.
5. Thereafter statements of the accused respondents were recorded under Section 313 Cr.P.C., wherein all the accused persons have denied the allegations and stated that witnesses have deposed falsely and they have been implicated due to enmity. The accused respondents did not adduce any evidence in defence though the opportunity was given.
6. Learned trial Court after hearing the arguments of both the sides on the basis of evidence available on record came to the conclusion that the prosecution has proved its case beyond reasonable doubt that convicts/appellants have committed the murder of the deceased Shiv Raj. All the three convicts/appellants came together at the spot. The convicts/appellants Siya Ram and Rang Bahadur @ Rangai started abusing the deceased and his family members and convict Siya Ram assaulted the deceased with knife, of which, he died. The version of ocular evidence was corroborated by medical evidence as the injuries of sharp edged weapon were found on the body of the deceased. However, the recovery of weapon of offence was disbelieved by the trial Court observing that prosecution could not proved the recovery beyond reasonable doubt because the P.W. 9- Retired Sub-inspector Rajendra Prasad Mishra in his statement has given a contradictory statement about the place of recovery stating that the knife was recovered from the house of the accused and again said that knife was recovered from the thatch, hence learned trial Court had held guilty and punished the convicts/appellants accordingly as narrated herein above.
7. Being aggrieved of this judgment, these appeals have been filed. As all the three appeals have arisen out of one single judgment, we are deciding them jointly.
8. Heard Sri Ajay Veer Singh, learned counsel for the convict/appellant Siya Ram @ Siya Ram Rawat in Criminal Appeal No. 1517 of 2012, Sri Vimal Kishore Singh, learned counsel for the convict/appellant Ram Jas Rawat @ Ram Yash Rawat in Criminal Appeal No. 1261 of 2012, Sri Girish Kumar Kannuajia, learned counsel for the convict/appellant Rang Bahadur Yadav @ Rangai in Criminal Appeal No. 1262 of 2012, Sri Anil Kumar Tiwari, learned counsel for the complainant and Sri Vishwas Shukla, learned Additional Government Advocate for the State respondent.
9. Learned counsel for the convict/appellant Siya Ram @ Siya Ram Rawat in Criminal Appeal No. 1517 of 2012 argued that there was no motive to commit the crime for the convict/appellant. There are major contradictions and improvements in the statements of the alleged eye-witnesses as well as in the statements of other prosecution witness. The medical evidence does not corroborate the prosecution case because according to prosecution story the deceased was a assaulted by stick (Lathi) also by co-convict Ram Jas but no injury of stick (Lathi) was found on the body of the deceased. The incident allegedly took place in front of the house of the complainant where the family members and other villagers were allegedly present but nobody tried to save the deceased as nobody got injured in the incident. Learned trial Court disbelieved the recovery of the weapon of offence i.e. knife but punished the appellants for the offence. All the prosecution witnesses of facts are relative and interested witnesses so their evidence should not be relied upon. Further more, only two blows of knife were found, as such, the offence does not travel much beyond Section 304 Part -II of I.P.C. Hence, the impugned judged and order should be set aside.
10. Learned counsel for the convict/appellant Ram Jas Rawat @ Ram Yash Rawat in Criminal Appeal No. 1261 of 2012 argued that there is no evidence against the convict/appellant Ram Jas Rawat @ Ram Yash Rawat because according to prosecution version, Ram Jas Rawat assaulted the deceased with stick (Lathi) but no injury of stick (Lathi) was found in the postmortem on the body of the deceased. All the witnesses of facts are relative and interested witnesses. The ocular evidence is not in consonance with medical evidence available on record. The trial Court has committed a manifest error in not believing the version of defence which is more reliable and trustworthy than prosecution version. The trial Court on the basis of evidence of same set of witnesses have acquitted the convict/appellant from the charges framed under Sections 506 and 120-B IPC but relied upon for convicting the convict/appellant under Section 302 and 504 read with 34 IPC.
11. Learned counsel for the convict/appellant Rang Bahadur Yadav @ Rangai in Criminal Appeal No. 1262 of 2012 argued that the appellant was not named in the first information report and after thirteen days of the incident, his name was inserted in the case on the basis of the affidavit given to the Superintendent of Police on 02.04.2011 by the complainant and some other persons. The convict/appellant has been implicated falsely due to enmity and village party bandi. In the affidavit given to the Superintendent of Police, no role was assigned to the convict-Rang Bahadur @ Rangai neither of assaulting the deceased nor of exhortation. In the charge-sheet submitted against the convict/appellant on the basis of evidence collected by the previous Investigating Officer and on the basis of the affidavit of Ram Baran but the affidavit so submitted has not been proved and exhibited and Ram Baran has also not been examined. The complainant has not stated anything about Rang Bahadur @ Rangai in his written report but he improved his version before the Court due to enmity of village Panchayat election. There is no evidence that the convict/appellant Rang Bahadur acted in furtherance of common intention. There is no motive to kill the deceased. P.W. 1- the complainant has deliberately for the first time before the trial Court in his statement assigned the role of exhortation to the convict/appellant Rang Bahadur. In fact, the convict/appellant was not present at the place of incident. All the witnesses of facts are interested and related witnesses. It is possible that deceased might had been assaulted in the celebrations of Holi by some other person at some other place and the convict/appellant has been implicated falsely. Hence, the impugned judgment and order should be set aside. In support of his contention, learned counsel appearing on behalf of the convict/appellant Rang Bahadur @ Rangai has placed reliance upon the following case laws:-
(i) Kalachand Bhowmik and another Versus State of Tripura, 2000 Crl. L.J. 4994 SC;
(ii) Parshuram Singh Versus State of Bihar, (2002) 8 Supreme Court Cases 16;
(iii) Bechara Kora Modi and others Versus State of West Bengal, AIR 2006 Supreme Court 638;
(iv) Laxman Anaji Dhundale and another Versus State of Maharashtra, AIR 2007 Supreme Court 1876;
(v) State of Rajasthan Versus Mohan Lal, AIR Online 2009 SC 34.
12. Contrary to it, learned A.G.A. submitted that it is a broad day light murder in front of the house of the deceased and the presence of the complainant and other witnesses of facts is very natural at the spot. There is no major contradiction in the testimony of the witnesses of facts specially of complainant. The medical evidence is in consonance with the ocular evidence as two incised wounds were found on the cadaver of Shiv Raj. Arguments of learned counsel for the convicts/appellants that the medical evidence does not support the ocular evidence as the undigested food was not found in the stomach of the deceased is concerned, it is of no importance because it depends on the system of the body of each person. Learned trial Court has rightly believed the testimony of the complainant as well as other witnesses of facts and has rightly held guilty and convicted the convicts/appellants, hence the present appeals should be dismissed.
13. Considered the rival submissions and perused the original record as well as the record of these appeals and gone through the case laws cited.
14. In the present matter, the incident allegedly occurred on 20.03.2011 at about 2 O'clock in broad day light. The incident was witnessed by the complainant (brother of the deceased) as well as some other persons. According to the narration made in the F.I.R., the convict/appellant Siya Ram and Ram Jas came in front of the house of the complainant and started abusing, when the deceased Shiv Raj came out of the house Siya Ram assaulted him with knife, he got injured and fell down. The persons, who reached at the spot, hearing the hue and cry tried to catch them but they aimed at the complainant with knife and the convict/appellant Ram Jas also threatened him to kill with Stick (Lathi) in his hands and they both ran away.
15. The F.I.R. of the incident was lodged on the same day i.e. 20.03.2011 at 2.30 PM. The distance of the Police Station from the place of incident was 5 Kilometers. The F.I.R. was lodged promptly without any delay. To prove the facts averred in the F.I.R., the complainant Ramu has stated in his examination-in-chief before the trial Court that incident occurred on 20.03.2011 at 2 O'clock during the day and on that day he was present in the house and his brother Shiv Raj was having meals. At that time, the convicts/appellants Siya Ram and Ram Jas, who are real brothers, came in front of his house and Rang Bahadur @ Rangai came on a motorcycle Splendor UP41/2261. All the three convicts/appellants came down from the vehicle and Siya Ram and Ram Jas started abusing his brother Shiv Raj. Hearing the noise, he came out and at that time Ram Jas and Rang Bahadur exhorted to kill his brother. On it, Siya Ram assaulted his brother with knife in his stomach with an intention to kill him twice. Ram Jas also assaulted his brother with stick (lathi). After sustaining injury with knife, his brother fell down on the earth. On hue and cry, Ram Baran, Mahadeo and many other persons came on the spot and they witnessed the incident. He tried to catch the accused persons, then accused persons shown knife and stick and threatened saying that if he will come forward, then he will also be killed and all the three accused persons together ran away riding on the motorcycle. Motorcycle was being driven by Rang Bahadur @ Rangai. He carried his injured brother to the Police Station Patranga, District Faizabad on push-cart (Thela) and lodged the first information report. He proved his written report as Exhibit Ka-1, on the basis of which F.I.R. was registered. He has further stated that condition of his brother became serious and the Police Inspector sent him to District Hospital, Faizabad for treatment, where he was declared dead by the Doctor. He has also stated that convict/appellant Rang Bahadur @ Rangai had contested the election of Pradhan. In that election, the deceased's brother Shiv Raj and his family supported another candidate namely Chet Ram. For this reason, Rang Bahadur was inimical to his brother and threatened him to kill. He (Ran Bahadur @ Rangai got killed his brother under conspiracy with Siya Ram and Ram Jas in a planned way.
16. P.W. 2- Shiv Kumar in his examination-in-chief has stated that he did not remember the date of incident but the incident occurred 6-7 months ahead at 2 O'clock during the day. He was in his house. He went out of the house to urinate and after urinating, he went to wash his hand at the Hand-pump, then he saw that Siya Ram and Ram Jas, the residents of his village were uttering filthy abuses in front of the house of Ram Naresh (father of the complainant). Shiv Raj came out of the house and washed his hands on the Hand-pump. At that time, Siya Ram stabbed on the stomach of Shiv Raj and second time he stabbed on his back. Ram Jas also started beating Shiv Raj with stick (Lathi). Shiv Raj fell down near the Hand-pump. His brother Ramu raised alarm then he, Lalla Yadav, Ram Baran and many other people of the village reached there and tried to catch Siya Ram and Ram Jas but they showed the knife and ran away riding on the motorcycle of Rang Bahadur, thereafter Shiv Raj was carried to Police Station Patranga, District Faizabad from there, he was sent to District Hospital, Faizabad, where he was declared dead.
17. P.W. 3-Smt. Chhedana has stated in her examination-in-chief that six months had passed to the incident. The incident occurred at about 2 O'clock. It was a day of Holi festival. She went to take the water from the Hand-pump installed in front of her house then she saw that Rang Bahadur, Siya Ram and Ram Jas were abusing Shiv Raj standing in front of his (Shiv Raj) house. Shiv Raj came out of his house and started washing hands on Hand-pump, then Siya Ram assaulted on Shiv Raj on his stomach with knife. Second assault was made on his back. Ram Jas also assaulted Shiv Raj with Stick (Lathi). When the brother of Shiv Raj namely Ramu came out of his house,then accused persons threatened him to kill. Thereafter, Siya Ram, Ram Jas and Rang Bahadur @ Rangai riding on the motorcycle of Rang Bahadur, which was of white colour, ran away towards the west side. The incident was witnessed by her from her house. Ram Baran, Shiv Kumar, she herself, Ramu and the mother of Shiv Raj and many other persons of the village witnessed the incident. Shiv Raj got injured due to assault made by Siya Ram with knife. His blood fell down on the earth also, thereafter Ramu, Shiv Kumar etc. carried away Shiv Raj in injured condition from the village. She has further stated that Rang Bahadur @ Rangai contested the elections of Pradhan against one Chet Ram.
18. These all three witnesses of facts have stated before the Court that Siya Ram has assaulted the deceased Shiv Raj with knife twice. They have also stated that Rang Bahadur was also there with addition in the statement of Ramu P.W. 1 that Rang Bahadur and Ram Jas exhorted Siya Ram to kill Shiv Raj. They all have stated that after committing the crime all the convicts/appellants ran away riding on the motorcycle of Rang Bahadur.
19. P.W. 4 is Dr Ram Bhavan Verma, who conducted the postmortem on the cadaver of Shiv Raj and found two incised wounds, one on the stomach and another on the back. According to him the following ante-mortem injuries were found on the cadaver:-
(i) Incised wound 1-1/2 X 1 cm over the left side of lower abdomen 7-1/2 cm above from left iliac crest.
(ii) Incised wound 2 X 1 cm over the left side of Back 20 cm below from the lower end of left scapula.
He has also stated that the deceased died by hemorrhage and shock due to these anti mortem injuries. This witness has proved the postmortem report of the deceased as Exhibit Ka-2.
20. P.W. 5 Sub-inspector Lal Bahadur, who initially did the investigation of the case has stated before the Court that on 20.03.2011, he was posted at Police Station Patranga, District Faizabad on the post of Sub-inspector. On the same day, on the basis of written report of complainant Ramu Yadav Case Crime No. 136 of 2011 under Sections 307, 504 and 506 IPC was registered against Siya Ram and Ram Jas and the investigation was entrusted to him. He recorded the statement of the complainant Ramu, inspected the site of the crime on the pointing out of the complainant and prepared the site plan. He collected the blood soaked soil and plain soil from the spot and prepared the recovery memo of the same in his hand writing and under his signature. This witness has proved the site-plan as Exhibit Ka-3 and recovery of plain soil and blood soaked soil as Exhibit Ka-4. The recovered plain soil and blood soaked soil were submitted by him at the Police Station concerned along with specimen seal. On 21.03.2011 by which entry in General Diary was made at "Rapat" No. 17, time- 18:15 hours. Thereafter, the investigation was handed over to Station House Officer (S.H.O) . He has further stated that the then S.H.O. Sarvesh Kumar had died now. He is well acquainted with his hand-writing and signature. S.H.O. Sarvesh Kumar had arrested the accused and recovered the weapon of crime i.e. knife. The recovery memo of knife is in his hand-writing and his signature on it, is there. On this recovery memo signature and thumb impression of Siya Ram was also taken. This witness has proved recovery memo as Exhibit Ka-5 and site-plan of spot of recovery of knife has also been proved by this witness as Exhibit Ka-6 and he has stated that this site-plan was prepared by SHO Sarvesh Kumar.
21. P.W. 6-Sub-inspector Ram Pratap Kushwaha has proved the fact that Panchayatnama was conducted by him and after completing the proceedings of Panchayatnama, he sent the dead body for postmortem after sealing the same in a cloth and prepared the necessary documents for the same. These documents have been proved by him as Exhibit Ka-7 to Ka-15.
22. P.W. 7 is Head Constable Dinesh Kumar, who has proved the fact that the case was registered in his presence at the Police Station on the basis of written report of the complainant Ramu Yadav, who reached at the Police Station along with his uncle Ram Baran and injured brother Shiv Raj. This witness has proved Chik F.I.R. as Exhibit Ka-16 and the concerned General Diary as Ka-17.
23. P.W. 8-Sub-inspector Rajesh Chandra has stated before the Court that on 03.05.2011 he was posted at the Police Station Patranga, District Faizabad. He was entrusted the investigation of the case. On that day, he perused the case diary of the case. On 04.05.2011 he took the accused persons on police custody remand. On 14.05.2011 he recorded the statement of the witnesses of Panchayatnama. On 19.05.2011, he received the information that the convict/appellant Rang Bahadur @ Rangai surrendered in the Court. On 21.05.2011 with the permission of the Court, he recorded the statement of Rang Bahadur @ Rangai in Jail. On 30.05.2021 Sub-inspector R.P. Mishra took the accused on police custody remand and on 01.06.2011 the weapon of offence i.e. knife was recovered and the blood soaked soil and plain soil were sent to the Forensic Science Laboratory (F.S.L) for test along with a docket. This witness has further stated that on 04.06.2011 after collection of evidence he submitted the charge sheet no. 44 of 2011, under Sections 302, 120-B, 504, 506 IPC in the Court. This witness has proved the charge-sheet as Exhibit Ka-18.
24. P.W. 9 is a retired Sub-inspector Rajendra Prasad Mishra. He has stated that on 25.03.2011 he was posted at Police Station Patranga, District Faizabad as Sub-inspector. On that day, he along with S.H.O. Sarvesh Kumar took out the accused Siya Ram arrested in Case Crime No. 136 of 2011, under Sections 302, 504 and 506 IPC from lock-up. The convict/appellant Siya Ram confessed the crime and got recovered the knife used in the crime. The convict/appellant told that he had hidden the knife inside his house. So they all along with convict/appellant reached at the house of the convict/appellant, where convict/appellant went inside his house and got recovered the knife from the earth, on which, blood and soil were present there and said that it was the knife by which he killed the deceased Shiv Raj. This witness has proved the recovery memo of knife as Exhibit Ka-5.
25. P.W. 10- Jawahar Lal Kannaujia, who investigated the case registered at Case Crime No. 150 of 2011 under Section 4/25 Arms Act for the recovery of knife. This witness has proved the investigation made by him and he has also proved the site-plan of place of recovery of knife as Exhibit Ka-19 and the charge sheet submitted under Section 4/25 as Exhibit Ka-20. This witness has also proved Chik FIR as Exhibit Ka-21 as written in the hand writing of Ram Ji Yadav, who remained posted with him at Police Station Patranga, District Faizabad. He has also proved the concerned G.D. as Exhibit Ka-22 written in the hand writing of Ram Ji Yadav.
26. In the F.I.R., the complainant Ramu Yadav (brother of the deceased) has stated that Siya Ram and Ram Jas came in front of his house and started abusing and when his brother Shiv Raj came out from the house Siya Ram assaulted him with knife. In the FIR, he did not say anything about the convict/appellant Rang Bahadur @ Rangai. In the F.I.R. there is nothing about motor-cycle that is to say that convicts/appellants came on motorcycle and ran away riding on the same. As far as the convicts/appellants Siya Ram and Ram Jas are concerned, all the three witnesses of facts have stated in a consistent way that both convicts/appellants reached in front of the house of the deceased and started abusing and when deceased came out, Siya Ram assaulted on him with knife twice, whereby he sustained injuries. The ocular evidence in this regard is well supported by the medical evidence, wherein two incised wounds were found on the cadaver.
27. Learned counsel for the convicts/appellants in this regard has stated that ocular evidence is not supported with the medical evidence because no injury of stick (lathi) was found on the cadaver but the witnesses have stated that Ram Jas assaulted the deceased with stick (Lathi) also. It has also been stated by learned counsel that PW. 1 has stated that the deceased was having meals at the time of incident but no undigested food was found in the postmortem, hence it creates doubt. This contention of the learned counsel for the convicts/appellants is of no importance in the light of direct evidence wherein it has been stated that both the brothers i.e. Siya Ram and Ram Jas reached together in front of the house of the deceased and abused him (deceased) and Siya Ram assaulted the deceased with knife, whereby he sustained injuries and died. For the absence of stick (lathi) injuries the case of prosecution can not be thrown out. As far as non presence of undigested food is concerned, it cannot be concluded that the incident does not occur in the way in which averred by the complainant in the FIR and proved in the Court. A lengthy cross-examination has been made by the counsel for the convicts/appellants with the witnesses of facts but no serious contradictions could be brought as far as the commission of crime by Siya Ram and Ram Jas is concerned. The recovery of weapon was also made and proved at the pointing out of the convict/appellant Siya Ram though that recovery of knife has been disbelieved by the trial Court giving the reason that there is contradictory statement about the place of recovery. At one place, it has been stated that recovery was made from the house of the convicts/appellants while another place it has been stated that recovery was made from the thatch. It does not seem correct in the light of the statements of witnesses, police personnel making recovery and the site plan prepared. From the perusal of the site-plan Exhibit Ka-19 It is clear that thatch was inside the house of the convict/appellant Siya Ram from where the recovery was made, so it was within the house under the thatch.
28. To sum up the charges framed against the convict/appellants Siya Ram and Ram Jas under Sections 302/34 and 504 IPC has been proved by the prosecution beyond reasonable doubt as the presence of witnesses of facts at the spot is very natural. P.W. 1 is the brother of the deceased residing at the same house. P.W. 2 and 3 both reside in the vicinity where the incident occurred.
29. Argument of the learned counsel for the convicts/appellants that all the witnesses of facts are relative of the deceased so their evidence should not be relied upon, has no force in it, because it is well settled law that the evidence of an witness cannot be doubted only for the reason that he is a related witness.
30. In Kartik Malhar Vs. State of Bihar: (1996) 1 SCC 614, the Hon'ble Apex Court has held as under:-
We may also observe that the ground that the witness being a close relative and consequently, being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dilip Singh's case (supra) in which this Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., the Court observed :
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. The State of Rajasthan, [1952] SCR 377 = AIR 1952 SC 54. We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
In this case, this Court further observed as under :
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must he laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
31. In another case of Mohd. Rojali Versus State of Assam: (2019) 19 SCC 567, the Hon'ble Apex Court in this regard has held as under:-
"As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now wellsettled that a related witness cannot be said to be an ''interested' witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between ''interested' and ''related' witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki, (1981) 2 SCC 752; Amit v. State of Uttar Pradesh, (2012) 4 SCC 107; and Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC
298). Recently, this difference was reiterated in Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549, in the following terms, by referring to the threeJudge bench decision in State of Rajasthan v. Kalki (supra): "14. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be "interested"..."
11. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab, 1954 SCR 145, wherein this Court observed:
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person..."
12. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. Union Territory of Pondicherry, (2010) 1 SCC 199:
"23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
32. Thus, the evidence of witnesses of facts i.e. of P.W. 1, P.W. 2 and P.W. 3 cannot be doubted only on the ground that they are relative of the deceased.
33. The contention of the learned counsel for the convicts/appellants that though the witnesses were present at the spot but they did not try to save the deceased creates doubt about the presence of the witnesses at the spot, also have no force because the complainant P.W. 1 has stated before the Court that he tried to save his brother, the convicts/appellants Siya Ram and Ram Jas threatened him to kill showing knife and Stick (Lathi). This fact has also been supported by P.W. 2 and P.W. 3.
34. Learned counsel for the convicts/appellants submitted that motive in killing the deceased by the convicts/appellants neither has been alleged in the FIR nor proved by the witnesses, therefore, the killing of the deceased by the convicts/appellants all of sudden shadows with clouds of doubt. The above contention of the learned counsel for the convicts/appellants no force because it is settled law that where the direct evidence of crime is available motive losses its importance.
35. In the case of State of Uttar Pradesh Versus Kishanpal and others (2008) 16 Supreme Court Cases 73, the Hon'ble Apex Court in this regard has held as under:-
"The motive may be considered as circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive looses all its importance in a case where direct evidence of eye-witnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eye-witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of eye-witnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."
36. Now comes the fact of involvement of convict/appellant Rang Bahadur @ Rangai, he was not named in the first information report. There is no whisper about his role of any type in the F.I.R. F.I.R. even does not show the presence of any third miscreants on the spot. In the F.I.R. the names have been averred only of the convicts/appellants Siya Ram and Ram Jas, who committed the crime. The F.I.R. was lodged on 20.03.2011 on the day of incident within half an hour of the incident by an eye-witness the brother of the complainant, wherein there is no whisper about Rang Bahadur @ Rangai, thereafter some affidavits including the affidavit of complainant were given to the S.P. concerned on 02.04.2011 implicating the convict/appellant Rang Bahadur @ Rangai. On the basis of these affidavits given, the name of convict/appellant Rang Bahadur @ Rangai was inserted in the crime. The name of this convict/appellant has not been mentioned by the witnesses of fact even in their statements made under Section 161 Cr.P.C. to the Investigating Officer as is clear from the evidence available on record. But all the three witnesses of facts have stated before the Court that Rang Bahadur @ Rangai was also present at the spot and he exhorted to commit the crime and after committing the crime, miscreants were ran way riding on the motorcycle.
37. Learned counsel appearing on behalf of the convict/appellant Rang Bahadur Yadav @ Rangai has stated that he was implicated in the crime falsely because of some village party bandi. The witnesses of facts have stated in their statements before the Court that in the election of village Pradhan, the deceased supported the rival candidate namely Chet Ram, where the convict/appellant Rang Bahadur @ Rangai also contested the election. When the complainant was asked in the cross-examination that why he has not mentioned the name of Rang Bahadur @ Rangai in the first information report, he did not give any satisfactory reason for not naming the convict/appellant Rang Bahadur @ Rangai in the F.I.R. He was asked the question that even in the affidavit given on 02.04.2011, he has not mentioned the fact that the convict/appellant Rang Bahadur @ Rangai exhorted Siya Ram and Ram Jas to kill the deceased, the witness P.W. 1 accepted the fact that it is not there and also stated that except that affidavit no other affidavit was given. If the convict/appellant Rang Bahadur @ Rangai, who was a resident of the same village and well known to the complainant, was present at the place of incident and involved in the crime then non mentioning of his name in the FIR creates serious doubt about his involvement in the crime, specially when the evidence on record is there that family of the complainant have inimical relations with the convict/appellant Rang Bahadur @ Rangai. Though, it is settled law that F.I.R. cannot be a encyclopedia of the facts of evidence yet the material facts which are very edifice of the incident should be there in the FIR specially when the FIR is being lodged by the eye-witness, who is familiar to the miscreants and the miscreants are the residents of the same village of the complainant is. In this regard the law laid down by the Hon'ble Apex Court in the case of Ram Kumar Pandey Versus State of Madhya Pradesh (1975) 3 Supreme Court Cases 815 is relevant wherein the Hon'ble Apex Court has held that omission of important facts in the FIR effects the prosecution case. Hence to sum up there is no evidence on record to prove the charge levelled against the convict/appellant Rang Bahadur @ Rangai. beyond reasonable doubt.
38. Thus to conclude the conviction of the convicts/appellants Siya Ram and Ram Jas under Sections 302/34 and 504 IPC deserves to be affirmed and is hereby affirmed. So far as the convict/appellant Rang Bahadur @ Rangai is concerned, the evidence available on record is not sufficient to prove the charge framed against him beyond reasonable doubt, so he deserves that benefit of doubt should be given to him. Thus, the conviction and sentence passed against Rang Bahadur Yadav @ Rangai under Section 302/34 IPC deserves to be set aside.
39. In the result, the appeals filed by convicts/ appellants Siya Ram @ Siya Ram Rawat and Ram Jas Rawat @ Ram Yash Rawat being Criminal Appeal Nos. 1517 of 2012 & 1261 of 2012 are dismissed. The convicts/appellants Siya Ram @ Siya Ram Rawat and Ram Jas Rawat @ Ram Yash Rawat are in jail, they shall serve out the sentence awarded to them by the trial Court.
40. The appeal filed by convict/appellant Rang Bahadur Yadav @ Rangai being Criminal Appeal No. 1262 of 2012 is allowed.
41. The convict/appellant Rang Bahadur Yadav @ Rangai is on bail. He is directed to file personal bond and two sureties each in the like amount to the satisfaction of the court concerned in compliance with Section 437-A of the Code of Criminal Procedure, 1973 before the Court concerned within 15 days from today.
42. Let a copy of this order along-with original record be transmitted to the trial court concerned forthwith for necessary information and follow up action.
(Mrs. Saroj Yadav, J.) (Ramesh Sinha, J.)
Order Date :- 07.06.2022
Arun