Allahabad High Court
Badan Singh And Ram Das Both Sons Of Sri ... vs State Of U.P. on 29 November, 2007
Author: K.S. Rakhra
Bench: K.S. Rakhra, R.K. Rastogi
JUDGMENT K.S. Rakhra, J.
1. These are two connected criminal appeals against the judgment and order dated 8.3.1982 of Vth Additional Sessions Judge Budaun in Sessions Trial No. 384 of 1980 whereby the three appellants Badan Singh Ram Das and Asharfi have been convicted and sentenced to life imprisonment under Section 302/34 IPC, two years imprisonment under Section 324/34 and two years imprisonment under Section 452 IPC.
2. During pendency of the appeals appellant Asharfi in Criminal Appeal No. 633 of 1982 has expired and similarly appellant Badan Singh in Criminal Appeal No. 632 of 1982 has died and their death has been confirmed by Chief judicial Magistrate Budaun vide his letter dated 18th July 2007. In view of this Criminal Appeal No. 633 of 1982 (Asharfi v. State) and in Criminal Appeal No. 632 of 1982 appeal of Badan Singh stands abated. This leaves us to consider the appeal of Ram Das alone. It may be mentioned here that all the three appellants were real brothers and their fourth brother Satyapal was also allegedly involved in this crime but he was not charge sheeted as the police could not arrest him and his whereabouts could not be known.
3. The incident relates to murder of Amar Singh resident of village Gudhni hamlet of Kupri Police Station Allapur District Budaun. On 16.9.1989 at about 2.00 p.m. in the village itself he was done to death allegedly by the aforesaid three appellants and their companion Satyapal. The report of the incident was lodged by Lekhraj who is uncle of the deceased. In this incident injury was also caused to Smt. Gaya Kunwar, mother of the deceased who after death of her husband had settled down with Lekhraj. Giving description of the incident in oral report Ex.Ka.3. Lekhraj stated that about 1' 1/2 years prior to this incident a dacoity was committed in the house of accused Asharfi Lal and in the said dacoity deceased Amar Singh, Ram Sahai, Malkhan and Shiv Lal were named as accused. It was mentioned by the informant that the said report against Amar Singh etc. was falsely lodged by the accused Asharfi Lal on account of enmity. After the said dacoity, Asharfi Lal and his brothers started nurturing enmity against Amar Singh and his family members.
4. It was also alleged that on the fateful day at about 2.00 PM the first informant and Smt. Gaya Kunwar were present in their house while Amar Singh was lying on a cot at the threshold of the door. The three accused persons namely Asharfi, Badan Singh and Ram Das accompanied by their brother Satyapal arrived there. Asharfi was armed with Bhala, Badan Singh was armed with Gun. Ram Das was armed with revolver and Satyapal was armed with Gandasa. They forced their entry in the house of the informant and Asharfi and Satyapal opened assault on the deceased with their respective weapons namely spear and Gandasa. The first information report says that Badan Singh and Ram Das also fired from their respective weapons namely gun and revolver. The informant and his wife Smt. Gaya Kunwar raised alarm and tried to save the main victim Amar Singh. Asharfi and Satyapal then assaulted Gaya Kunwar also. Hue and cry was raised by the victims which invited attention of Pyare and Megh Nath of village Jagat and also that of Mathura Prasad of his village. They challenged the culprits and in the meanwhile Amar Singh who had received injury ran out of the house in order to save his life. All the four culprits gave him a chase and during this appellant Badan Singh and appellant Ram Das again opened fire with their respective weapons. The shots fired by them struck the victim and he fell down near the house of Mathuri Dheemar. Asharfi and Satyapal again assaulted Amar Singh after he had fallen down. When the informant and witnesses advanced towards culprits to save the victim, appellant Ram Das again fired on them and threatened that if anybody dared to come closer ,he will be done to death. It was alleged that the informant caught hand of Ram Das in order to snatch his revolver. The revolver however, could not be snatched but it broke down and its magazine and two cartridges loaded therein fell on the ground. Bhala of Asharfi was also broken in this assault. Victim Amar Singh died on the spot. The informant then went to the police station leaving Smt. Gaya Kunwar and other witnesses to keep a watch on the dead body and lodged the report.
5. The report was registered as Crime No. 263 of 1979 under Sections 452/302/307 IPC and its investigation was taken up by Soran Singh S.I. (P.W.7). He recorded statement of the first informant at the police station itself and proceeded to the place of occurrence at 17-10 hrs on the same day. He found dead body of Amar Singh lying in the passage near the house of Mathura Prasad. He held the inquest of the dead body in presence of the witnesses and sent the dead body for autopsy after due formalities. The site plan of the place of occurrence was also prepared by him. The investigating officer also recovered the broken head of Bhala and a magazine of the revolver with two bullets of 32 bore loaded therein. He also collected sample of blood stained & plain earth from the place of occurrence. Statement of Smt. Gaya Kunwar was also recorded by him and she was sent for medical examination. At the threshold of the door of the informant also the investigating officer found signs of assault and collected blood stained and plain earth therefrom. He also collected one pellet and three wadding from that place. Blood stains were also found on the matting and wooden parts of the cot. After completion of investigation, a charge sheet was submitted against three persons Asharfi, Badan Singh and Ram Das who are all sons of Badri Singh but their fourth brother Satyapal who was also allegedly involved in the crime remained absconding.
6. In the trial court seven witnesses were examined by the prosecution. No evidence was adduced by the accused persons in their defence. The witness examined by the prosecution included Lekhraj P.W.4 who is informant, Meghnath P.W.5 an eye witness and Gaya Kunwar P.W.6 an injured eye witness. All of them have supported prosecution story. Dr. V.K. Sharma and Dr. M.V. Jugal are the witnesses who had examined the injuries of Gaya Kunwar and held inquest on the body of deceased Amar Singh. Ex.Ka. 1 injury report of Gaya kunwar had been proved by Dr. V.K.Sharma P.W.1. The doctor had found following injuries on the body of Smt. Gaya Kunwar on 16.9.79 at about 11.00 p.m.
i) incised wound on Lt. Side of the scalp 4 cm x 1/4 cm x V2 cm 9 cm above the upper lobule of Lt. Ear.
ii) Contusion on Rt. Fore arm 7 cm x 4 cm below the Rt. Elbow joint and piercing wound in the centre of contusion 1/4 cm x 1/4 cm x 1/2 cm
iii). Linear abrasion on Rt. Forearm 2 cm x 1/8 cm 9 cm above the Rt. wrist joint.
iv) Contusion on lower side of the back on both side of spine on Lt. Side 10 cm x 4 cm, on Rt. Side 8 cm 5 cm, 3 cm above the Iliac crest.
The doctor advised X.ray for injury No. 2 & 4 and kept them under observation. Injury No. 1 ,2, and 3 in the opinion of the doctor were caused by some sharp weapon, while injury No. 4 was caused by blunt object. These injuries were about 12 hours old.
7. On the dead body of Amar Singh, Dr. M.V. Jugal P.W.2 found the following 32 ante-mortem injuries.
1) Incised wound 6 cm x 2.5 cm x bone on parietal region of head left side.
2) Incised wound 4.5 an x 2.5 cm x scalp on the left side head anterior part 1 cm away from mid line.
3) Incised wound 3 cm x 1.5 cm x scalp deep on top of head near mid line towards left side.
4) Incised wound 3.5 cm x 2 cm scalp, on the top of head 1 cm below Injury No. 3.
5) Incised wound 5 cm x 2.5 cm x bone deep on occipital region of head.
6) Incised wound 4.25 cm x 1 cm x scalp deep on the head just below occipital protuberance.
7) Incised wound 5.25 cm x 2.2 cm x bone deep on mastoid region of left side head.
8) Incised wound 3 cm x 1 cm x muscle deep on front of neck lower third.
9) Incised wound 2.5 cm x I cm x muscle deep on front of neck 1 cm above injury No. 8
10) Punctured wound 1 '1/2 cm x 1 cm x muscle deep on Rt. Side neck margin clean cut.
11) Incised wound 3 cm x I cm x muscle deep on left side fact 2.5 cm below lower eyelid.
12) Punctured wound 2 cm x 1 3/4 x muscle deep on front of left shoulder margin clean cut.
13) Incised wound 3 cm x 1.5 cm x muscle deep on front of Rt. Shoulder.
14) Incised wound 9 cm x 2 cm x muscle deep on Rt. Side chest 1 cm below & (sic) Rt. Nipple.
15) Two punctured wounds each measuring 2cm x 1.5 cm x chest cavity deep on front Rt. Side chest (sic) middle third. Both are 3 cm apart from each other.
16) Six punctured wounds on front & lateral aspect of Rt. Side chest upper third, smallest being 1.5 cm x 1 cm x chest cavity deep largest being 3 cm x 2.5 cm x chest cavity deep in size margin clean cut.
17) Punctured wound 1.5 cm x 1.2 cm x muscle deep on front of left shoulder.
18) Incised wound 4.5 cm x 2 cm x muscle deep on front & lateral aspect of left forearm 2 cm below elbow.
19) Incised wound 3 cm x 1.5 cm x muscle deep on front of left arm lower third.
20) Punctured wound 2 cm x 1.5 cm x muscle deep on front of left side chest lower third margin clean cut.
21) Multiple punctured wounds all over front & lateral aspect of abdomen mostly on its lower half. Smallest measuring 1 cm x 3/4 cm largest measuring 3 cm x 2.5 cm. Some are abdominal cavity deep and Ors. are muscle deep only margins clean cut.
22) Incised wound 5 cm x 2.25 cm x muscle deep on back of neck upper third.
23) Incised 3.5 cm x 1.5 cm x muscle deep on back neck.
24) Three punctured wound on the root of neck posterior aspect, each measuring 2 cm x 1.5 cm x muscle deep. Injuries are in area 8 cm x 6 cm.
25) Incised wound 3 cm x 1.5 cm x muscle deep on back of Rt. shoulder.
26) Punctured wound 2.5 cm x 1 3/4 cm x muscle deep on left scapular region. Margin are clean cut.
27) Multiple incised wounds on lower half of back small measuring 2 3/4 x 3/4 cm x muscle deep & largest measuring 5 cm x 2.5 cm x muscle.
28) Punctured wound two in number on Rt. Side back middle third, 4-5 cm on apart each measuring 2 cm x 1.5 cm x muscle deep margins clean cut.
29) Punctured wound 2 cm x 1.5 cm x muscle deep on left buttock outer aspect margin clean cut.
30) Punctured wound 2.5 cm x 1.5 cm x muscle deep on outer aspect of left thigh upper third.
31) Punctured wound 2 cm x 1.2 cm x muscle deep on inner aspect left thigh middle third margins clean cut.
32) Punctured wound 2.5 cm x 2 cm x muscle deep on outer aspect of Rt. Buttock.
All these injuries were either incised wounds or punctured wounds. Proving post mortem report the doctor specifically mentioned that on the body of the deceased there was no gun shot wound and the X.ray also did not show any radio opaque shadow. The cause of death in the opinion of the doctor was due to shock and haemorrhage as a result of ante-mortem injuries. There was also damage to right lung, lever and small intestines.
8. We have heard Sri P.N. Misra, learned Counsel for the appellant and Sri Kamlesh Kumar Tiwari AGA for the State and perused the entire material on record.
9. Sri P.N. Misra, learned Counsel argued that four persons named as accused were all real brothers. Two of them namely Badan Singh & Ram Das according to the prosecution were armed with fire arms and the remaining two namely Asharfi and Satyapal were armed with spear and Gandasa. Out of them Satyapal remained absconding and Asharfi who was convicted and sentenced has already died. Out of Badan Singh and Ram Das who were armed with fire arms, Badan Singh has also died. Arguing on behalf of Ram Das alone Sri P.N. Misra submitted that the appellant has been falsely implicated on account of strong previous enmity. He pointed out that eye witnesses have deposed before the court that both the accused armed with fire arms had used their weapons and opened fire but neither the deceased who had received as many as 32 ante-mortem injuries received any fire arm injury nor Smt. Gaya Kunwar received any such injury. Even the first informant Lekhraj who grappled with appellant Ram Das to snatch his revolver did not receive any injury much less fire arm injury either from appellant Ram Das or from other co-accused. Argument of Sri P.N. Mishra is that the ocular testimony is inconsistent with the medical evidence; and the circumstances of the case, examined in the light of deposition of the eye witnesses, make presence of the appellant Ram Das on the spot highly doubtful. Sri Misra has however, not assailed the prosecution version with regard to date, time and place of occurrence, death of Amar Singh in the assault and the injuries received by Gaya Kunwar in this case.
10. The Additional Government Advocate on behalf of the State in reply, argued that the statements of eye witnesses to the effect that Ram Das and his brother Badan Singh also participated in the incident with fire arms are believable and it is immaterial that the fires done by them did not hit anyone.
11. We have carefully examined the entire evidence in the light of the arguments raised before us. We have no hesitation to observe that the testimony of the eye witnesses, in so far as it relates to the presence of appellants Ram Das and Badan Singh and the role attributed to them is not trustworthy. They have given not only contradictory statements but their statements with regard to these two accused namely Ram Das and Badan Singh are also highly improbable.
12. All the four accused in this case are real brothers being sons of Badri Singh. As per prosecution story the enmity between the two sides arose from naming of Amar Singh deceased as an accused in a case of dacoity which took place in the house of accused Asharfi about 1 1/2 years prior to the incident in question. The prosecution claims that nomination of Amar Singh etc. in the said case was false. That dacoity case at that time was pending in the court. The motive for commission of crime therefore, if available to Asharfi ,was equally available to his brothers Ram Das and Satyapal. The fact that blood stained & plain earth was found at the door of the first informant and also near the house of Mathura where broken head of Bhala was found, establishes beyond doubt that the incident started from the house of the informant and it continued upto the place where the dead body of Amar Singh was found. The number of injuries on the body of the deceased were as many as 32 which show that due to passion rising high, he was brutally attacked and the attack must have continued for quite some time. In such circumstances, absence of any fire arm injury on the deceased raises strong doubt about the presence of Ram Das and Badan Singh at the place of occurrence with fire arms in their hands. The prosecution has not attributed to them the role of being silent spectators but in the first information report itself, the specific role of firing was attributed to them. The first information report says that Badan Singh and Ram Das opened fire at the time when other two co-accused Asharfi and Satyapal opened assault with Gandasa and Bhala on the deceased at the house of the first informant. The first informant and his wife rushed to save the victim, but neither the victim nor the first informant nor his wife Smt. Gaya Kunwar sustained any fire arm injury although Smt. Gaya Kunwar had received incised wound & contusion etc. as have been mentioned earlier in this judgment.
13. It cannot be believed that Ram Das and Badan Singh had also opened fire on the victim at the house of the informant and incidentally the victim, first informant and his wife did not receive injury. The fact as per first information report is that when Amar Singh victim took to heels in order to save his life the accused persons gave him chase and during this chase also Badan Singh opened fire from his gun and Ram Das opened fire on the victim from his revolver. If this was true, it was very probable that the victim would have received some fire arm injury. The first information report says that 'GOLI AMAR SINGH KO LAGI AUR GOLI LAGATE HI MATHURI DHEEMAR KI JHOPARI KE SAMNE RASTE PAR GIR GAYA'. Thus there is specific allegation in the first information report that the victim received fire injury and on account of this, he fell to the ground where other co-accused attacked him again with Gandasa and Bhala. Since there was no fire arm injury found by the doctor on the body of the deceased, witnesses in the court changed their version by saying that since victim fell down as soon as shots were fired, they thought that shot struck him.
14. The first information report's version shows that both the accused armed with fire arms opened fire on the victim at the house of the informant and both of them also fired on the victim when he was running away. Thus at least four shots were fired from fire arms. This clearly shows that even those of the accused who were armed with fire arms had expressed clear intention of causing death of Amar Singh but strangely when Amar Singh fell down near the house of Mathura Prasad and when he was brutally attacked by Asharfi and Satyapal and as many as 32 injuries were inflicted on him, Ram Das and Badan Singh did not fire on the victim at that time to eliminate him. In these circumstance of the case, absence of fire arm injury on the victim Amar Singh makes the presence of Ram Das and Badan Singh highly doubtful.
15. Not only the victim did not receive any fire arm injury but it is again strange enough that the first informant who had grappled with Ram Das so as to snatch his revolver was not fired at by Ram Das or by other co-accused Badan Singh. It is difficult to believe that this would happen despite the fact that revolver broke down and its magazine came out and fell down. No recovery was made from Ram Das and no attempt appears to have been made to establish that the magazine of revolver found by the investigating officer on the spot belonged to the revolver which was in possession of Ram Das.
16. Further the first informant, Lekhraj P.W.3 states that only four shots were fired during the incident ,two at the house where the assault was made and two shots were fired on the victim when he was running away. In the first information report, he mentioned that one shot was fired by Ram Das when the informant and the witnesses advanced towards him to unarm him. The attention of the first informant was drawn towards this contradiction but he failed to give satisfactory reply to this. He stated that he does not know how this fact was mentioned in his statement also recorded under Section 161 Cr.P.C. by the investigating officer. It may be mentioned here that the investigating officer Soran Singh P.W.7 has assented the fact that Lekhraj informant had given the statement that as soon as he advanced towards Ram Das, the latter opened fire from his revolver. It appears that subsequent change in the statement of the first informant in the course of his deposition before the trial court is only an attempt to explain absence of any fire arm injury to the informant and to the witnesses.
17. Similar is the case with Meghnath P.W.5 who claims to be an eye witness. He had also stated before the investigating officer that when the informant proceeded to disarm Ram Das, the latter fired on the first informant; but in the court he resiled from the said statement given before the investigating officer.
18. Statement of Gaya Kunwar (P.W.6) in this regard was also contradictory. She claims that only two shots were fired from the fire arms one at the door and the other in the passage when the culprits were chasing the victim. She had also given statement before the investigating officer that when the witnesses and Lekhraj tried to intervene and overpower Ram Das, the latter opened fire on Lekhraj but in her deposition before the court she resiled from the said statement.
19. Thus all the eye witnesses have given unsatisfactory evidence with regard to use of fire arms by Ram Das and Badan Singh. The testimony of the witnesses so far as it indicates involvement of Ram Das and Badan Singh in the said crime, is highly doubtful.
20. We are therefore, of the opinion that in view of the enmity between the parties and in the absence of any fire arm injury to the deceased and other witnesses it would not be safe to hold Ram Das guilty and to convict him. He is therefore, entitled to benefit of doubt. The trial court in our opinion committed gross error and illegality in accepting the prosecution evidence to hold Ram Das guilty. We are therefore, inclined to allow this appeal.
21. Resultantly the appeal of Ram Das (Criminal Appeal No. 632 of 1982) stands allowed and his conviction under Section 302/34 and 452 IPC and the sentences passed thereunder are set aside. He is acquitted of all the charges. He is on bail. He need not surrender. His personal sureties & bonds are discharged. As mentioned earlier, the appeal of Badan Singh and appeal of Asharfi who have already died stand abated. Let a copy of this judgment be certified to the trial court for information and necessary action.