Allahabad High Court
Ram Das vs State Of U.P. on 5 January, 2021
Equivalent citations: AIRONLINE 2021 ALL 44
Bench: Ramesh Sinha, Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on: 24.11.2020 Delivered on: 05.01.2021 Court No. - 68 Case :- JAIL APPEAL No. - 352 of 2018 Appellant :- Ram Das Respondent :- State of U.P. Counsel for Appellant :- From Jail, Ajay Kumar Singh, Dileep Singh Yadav Counsel for Respondent :- G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Samit Gopal,J.
(Per Samit Gopal, J. for the Bench) [Delivered by Samit Gopal, J. for the Bench under Chapter VII Rule 1 (2) of the Allahabad High Court Rules, 1952]
1. The present appeal has been preferred from jail by the appellant Ram Das against the judgment and order dated 29.03.2016 passed by the Additional Sessions Judge, Court No.1, Kannauj, in Sessions Trial No. 428 of 2008 (State of U.P. Vs. Ram Ashrey) which was connected with Sessions Trial No. 445 of 2007 (State of U.P. Vs. Ram Das) whereby the appellant has been convicted and sentenced under Section 304 of the Indian Penal Code, 1860 to Life imprisonment and fine of Rs. 25,000/-. In default of payment of fine, he is directed to undergo two years imprisonment.
2. Initially, in the present matter, a non - cognizable report was lodged by Shamshuddin which was registered as N.C.R No. 122 of 2005 at 22:45 hrs on 07.11.2005 at Police Station Thithiya, District Kannauj. The version as stated in the said report is that his brother was coming back home on a cycle from cold storage Thithiya and behind him Ram Ashrey son of Bechey Lal was also coming on a cycle and when they reached Bhadausa Road on the drain, Ram Das son of Sundar Lal met him and tried to sit on his cycle, to which, his brother refused and then Ram Das started abusing him. On being tried to stop, he assaulted his brother with kicks and shoes, as a result of which, his brother received injuries on his nose and face and started shouting. Co-villager Naeemuddin saw the incident and saved him. The incident is of 07:00 pm. It is further stated that the treatment of his brother is being done in Qasba Thithiya. He states that a report be registered and action be being taken. The name of his brother is Shahjuddin. The said application is marked as Exb: Ka-2 to the records.
3. Shahjuddin was got medically examined on 08.11.2005 at 10:00 am at PHC, Thithiya by Doctor S.B. Dwivedi (PW-2) wherein he was brought by the informant Shamshuddin. The doctor found one lacerated wound on his person which is as follows:-
"1. Lacerated wound 4.6 cm x 0.5 cm x bone deep on right side nose just away right eye brow. Irregular margin. Blood clot present. Unconscious. Heavy blood loss and swelling on forehead and nose, vomiting, Adv. X-ray and expert opinion."
The injury was kept under observation, X-ray was advised and expert opinion was also advised. The same was opined to have been caused by hard and blunt object and the duration was about half day old, the said medical examination report is marked as Exb: Ka-1 to the records.
4. Subsequently, Shahjuddin died on 09.11.2005 at 09:45 pm while being under treatment in L.L.R Hospital, Kanpur Nagar. The inquest was conducted on his body by Sub-Inspector Shyam Lal Das (PW-10) on 10.11.2005 between 11:40 am and 12:40 pm at L.L.R. Hospital Kanpur Nagar, the same is marked as Exb: Ka-4 to the records.
5. The postmortem examination of Shahjuddin was conducted on 10.11.2005 at 02:20 pm by Doctor Kamal Kumar (PW-9) and the doctor found the following injuries:
"1. Contused swelling 6.0 cm x 5 cm on left temporo-parietal area just above left ear.
2. Abraded contusion 5 cm x 4.0 cm on left side of face.
3. Stitched wound 3 cm long. Four stitches present on right eye lid.
4. Stitched wound 2 cm long. Two stitches present on nose."
The cause of death opined was coma as a result of head injury. The postmortem report is marked as Exb: Ka-6 to the records.
6. The investigation concluded and a charge sheet no. 9 of 2006 dated 10.02.2006 was filed against Ram Ashrey under Section 304 of the Indian Penal Code, 1860, the same is marked as Exb: Ka-4 to the records.
7. A charge sheet no. 9-A of 2006 dated 22.04.2006 was filed against Ram Das under Section 304 of the Indian Penal Code, 1860 as an absconder, the same is marked as Exb: Ka-5 to the records.
8. The trial court framed charge under Section 304 of the Indian Penal Code, 1860 vide order dated 02.01.2009 against Ram Ashrey and under the same section vide order dated 04.02.2009 against Ram Das, to which, both the accused pleaded not guilty and claimed to be tried.
9. By the impugned judgment and order, accused Ram Ashrey has been acquitted of the charges levelled against him but the present appellant Ram Das has been convicted and sentenced as stated above.
10. On receiving the medical examination report of Shahjuddin, the non-cognizable report was converted into a regular case vide GD No. 27 transcribed at 23:05 hrs on 09.11.2005 as Case Crime No. 421 of 2005 under Sections 323, 308, 504 of the Indian Penal Code, 1860 by Head Constable Ram Dutt Rathore PW-7. On 13.11.2005, the first informant Shamshuddin gave an application to the Station House Officer, Police Station Thithiya, District Kannauj that the injured Shahjuddin after receiving injuries on 07.11.2005 was in a critical condition and hence was admitted in Hallet Hospital in the emergency in Kanpur and on 09.11.2005 at 09:45 pm while being under treatment, he died.
11. The accused persons pleaded not guilty and claimed to be tried. They have led no defence.
12. The prosecution in order to prove its case produced Naeemuddin as PW-1 who claimed himself to be an eye witness. Doctor S.B. Dwivedi PW-2 conducted the medical examination of Shahjuddin while he was alive. Shamshuddin PW-3 is the first informant and the elder brother of the deceased. Faizuddin PW-4 is the younger brother of the deceased and the first informant. Smt. Munni PW-5 is the wife of the deceased. Ramnath Dwivedi PW-6 was the second Investigating Officer of the matter from 22.11.2005 upto 09.12.2005. Ram Dutt Rathore the Head Constable converted the present case from N.C.R. to a regular case after receiving information about the death of the injured. Dev Raj Singh PW-8, is the Investigating Officer of the case from 27.12.2005 after the N.C.R. was converted to a regular case. Dr. Kamal Kumar PW-9 conducted the postmortem examination. Ram Lal Das, Sub-Inspector PW-10 conducted the inquest on the body of the deceased and Mohd. Hafeej PW-11 was the first Investigating Officer from 09.11.2005 after the non-cognizable report was registered.
13. The trial court after considering the entire evidence on record came to the conclusion that there is sufficient evidence against the accused appellant Ram Das for committing the offence and as such convicted and sentenced him as stated above. The accused Ram Ashrey who was also tried with the appellant was acquitted of the charges levelled against him of the same judgment and order.
14. We have heard Sri Ajay Kumar Singh, learned counsel for the appellant who has been appointed in the present case by the High Court Legal Committee to represent the appellant in the present jail appeal and Ms. Kumari Meena, learned AGA for the State and perused the record.
15. Learned counsel for the appellant made the following submissions:
i) Naeemuddin PW-1, the eye witness of the incident whose name finds place in the application dated 07.11.2005 given by Shamshuddin which is Exb: Ka-2 to the records did not support the prosecution case and has been declared hostile.
ii) The other eye witness of the incident namely Faizuddin PW-4 is the younger brother of the deceased and the first informant and his name has surfaced all of sudden as an eye witness and he is an interested and related witness.
iii) Shamshuddin, the elder brother of the deceased and the first informant is not an eye witness and he has given the application dated 07.11.2005 on the information received by him from Naeemuddin which was lodged as a NCR. It is thus apparent that the other eye witnesses examined being Faizuddin PW-4 who is the younger brother of the deceased and the first informant is a planted witness and is a related witness whose testimony is totally false just in order to falsely implicate the appellant.
iv) The testimony of the witnesses have major inconsistencies in themselves and as such it cannot be relied upon. Even the version given by Smt. Munni PW-5 is not inconsonance with that given by the other witnesses namely Shamshuddin PW-3 and Faizuddin PW-4 and as such even she cannot be relied upon as a truthful witness.
v) The medical evidence does not corroborate with the prosecution version at all.
16. Per contra, learned Additional Government Advocate for the State argued that the prosecution of the appellant is correct and true. It is argued that Naeemuddin though has been declared hostile but he was named as an eye witness in the application given by Shamshuddin dated 07.11.2005 and further Faizuddin PW-4 is also an eye witness whose presence at the place of occurrence is quite natural. It is further argued that the trial court has considered these aspects and has meticulously dealt with them and has thus convicted the appellant. It is argued that the present appeal lacks merit and be dismissed.
17. PW-1 Naeemuddin was produced as an eye witness to the incident. He states that on 07.11.2005 he was returning on his cycle to his village from Thithiya. He states that he did not see any marpeet. He states that he heard in the village that Shahjuddin is lying at the place of occurrence and when he reached there, he saw Shahjuddin lying unconscious. He states to have reached the place of occurrence at about 08:00 pm when Shahjuddin was lying in an injured condition. He states that he did not see any of the accused persons who are present in court assaulting. He states that he had gone to file an affidavit in the Court which was not read to him. He is illiterate. He was then declared hostile and was permitted cross examination by the ADGC.
18. In the cross examination, he was read over his statement recorded under Section 161 Cr.P.C., to which, he states that he did not give any such statement and as to how the same was recorded he does not know the reason. He was shown an affidavit, to which, he stated that on it, his photograph is affixed. He states that he did not go to the Tehsil for getting the said affidavit prepared. He also states that he does not know as to whether the thumb impression affixed on it is his or not. He states that he knows the deceased Shahjuddin. Accused Ram Ashrey is a resident of his village and he does not know as to where Ram Das lives. Ram Ashrey does the work of getting bidi prepared from Makanpur. He states that he does not know accused Ram Ashrey and deceased Shahjuddin used to come and go together or not. He did not see the deceased and did not see the injuries and even did not go to the place of occurrence. He had gone to Tehsil Tivo for getting the affidavit prepared. Along with him Shamshuddin and Faizuddin had gone. To a suggestion that he is giving false evidence as he has colluded with the accused, he denies. He states that the affidavit was read by an Advocate but it was not read over to him. He had affixed his thumb impression on it. He was then cross examined by the defence to which he states that he did not go to the place of occurrence and saw when the injured was brought to the village. He states that Shamshuddin and Faizuddin had taken him to Tehsil Terya and had got his thumb impression affixed on the same and prepared it. He does not know about any paper. He was not told where the paper will be used. He was not interrogated by the Investigating Officer. He states that the deceased Shahjuddin was of his family. There was no enmity between the family of the deceased and his family. The accused Ram Ashrey belongs to Kushwaha caste. The distance between the house of Ram Ashrey and his house is about half kilometre. There was no enmity between the family of the deceased and the accused.
19. Dr. S.B. Dwivedi PW-2 had examined Shahjuddin while he was in an injured condition on 08.11.2005 at 10:00 am when he was posted as the Medical Officer, PHC Thithiya. He states that the injured was brought by his elder brother Shamshuddin and states about the medical examination report which he prepared, the injury noted by him the advice mentioned therein. He states that the injured was unconscious. The injuries are not being quoted herein as they have already been quoted above. The injury report was proved by him which was marked as Exb: Ka-1 to the records. He states that it is possible that the injury might have been received on 07.11.2005 at 07:00 pm.
20. In his cross examination, he states that the injuries were about half day old. He states that when the injured came to him, blood was clotted. Police did not bring the injured to him. He states that the majroobi chitthi and the injured was brought to him by his brother. The injured had received injury on his nose and nowhere else. He states that the said injury can be caused from a stone or if any one bangs on a stone. X-ray of the injured was not brought to him. He did not prepare any supplementary report. The injured was unconscious. The injury cannot be caused by fall. The injury can be caused if any one bangs on a stone. If anyone bangs on a hard blunt object, the injury can be caused. He states that he found only one injury on the body of the injured and did not find any other injury. To a suggestion that there were other injuries on the injured except for one injury, he denies the same.
21. Shamshuddin PW-3 is the informant and the elder brother of the deceased. He is not an eye witness of the incident. He states in his examination-in-chief that the deceased Shahjuddin was his younger brother who used to work in bidi factory of Devi Prasad. Ram Ashrey also worked with him. Ram Das did not work with him. Devi Prasad used to get country made pistol made at his house. He states that his brother Shahjuddin had seen the said illegal work being done. Other employees had told Devi Prasad about it, to which, he said that the information may get leaked and then Devi Prasad give Rs. 30,000/- to Ram Ashrey for getting the murder of his brother. He states that the said information was told by his brother to him when he came from Makanpur, since then Ram Ashrey was trying to get the murder of his brother done. Due to the said reason, Ram Ashrey along with Ram Das committed the murder. The incident is of 07.11.2005 at about 07:00 pm. He states that at that time he was at his house. Naeemuddin co-villager came there and told him that he was returning by foot from Thithiya back to the village and at about 07:00 pm when he reached the drain on Bhadausa Road near the field of Ram Swaroop in Basawan Purva, he saw Ram Das assaulting Shahjuddin with kick, fists and danda by throwing him in the drain on the road. He states at that time Faizuddin PW-4 and Awadhesh reached there and also saw the incident. They exhorted Ram Das, to which, he ran towards Nathuvapur Road. Moonlight was the source of light present. Shahjuddin was lying in an injured condition in the drain of the field. His cycle was lying on the side of the road on the unmetalled part. He states that on the said information, he, Gayasuddin the younger brother, his son Raju and other villagers went to the place of occurrence and saw his brother was lying in an injured condition and the cycle also lying on the unmetalled side of road.
22. He further states that his brother in an injured condition told him that he was returning from cold storage of Thithiya on the cycle and behind him Ram Ashrey was also coming on his cycle. When they reached the place of occurrence, Ram Das met him and stopped him. Ram Ashrey went ahead. Ram Das told him that he may be permitted to sit on the cycle, his brother refused for the same, to which, he was thrown in the drain and assaulted by kick, fists and danda. At that time, Naeemuddin, Faizuddin and Awadhesh reached there and saved him and then Ram Das ran towards Nathuvapur. He then states that he took his injured brother on a cycle to the Police Station Thithiya and got the report lodged. The report was read to him, the same is marked as Exb: Ka-2 to the records.
23. He then states that he took his brother to Thithiya Government Hospital along with letter from the Police Station but did not meet the doctor as it was night and then got his brother treated privately and went home. On the next day, his brother was taken to PHC, Thithiya where he was treated. His condition was precarious and as such he was referred to Hallet Hospital, Kanpur where he was taken on a Marshal Jeep and was being treated. He died on 09.11.2005 in the night and inquest was conducted in the hospital. The postmortem was conducted there only on 10.11.2005 and then the dead body was handed over and the last rites was performed. He states that he had given an application dated 13.11.2005 about the death of his brother at Police Station Thithiya which was proved by him and marked as Exb: Ka-3 to the records. He was interrogated by the Investigating officer.
24. In the cross examination, he states that the day of the incident was Monday. At that time, he was present in the house. The incident is of 07:15 pm. His brother had gone to Thithiya from the house at about 02:00 pm. He does not know where he had gone. He generally used to go and come with Ram Ashrey and Shahjuddin and they were friends. He states that both of them had some differences between them but he does not know what it was. He states that Naeemuddin had informed him about the incident. The name of the father of Naeemuddin is Amjad. Naeemuddin is his nephew. He had informed him about the incident in the evening. When he reached the place of occurrence, Ram Ashrey and Ram Das were present there. He took the injured along with other persons to the police station. The accused persons did not go to the police station. The accused persons ran away after seeing them towards Nathuvapur which is at a distance of half kilometre from the place of occurrence. Night was moonlit. He states to have told it to the Investigating Officer but if the same has not been written in his statement, he does not know the reason for it. About 20 people went with him to the place of occurrence. The injured also went with him to the police station along with him Faizuddin, Naeemuddin, Pappu, Gayasuddin, Munni and other persons. They remained at the Police Station and the hospital together. After getting the report lodged they went away. He states to have given the statement for the first time in the present matter and prior to this he gave his statement to the police at the Police Station. He states that when he reached the Police Station, his brother was lying in an injured condition. His cycle was lying on the unmetalled side of road which was not broken. He stayed at the place of occurrence for half an hour. The injured was taken to the Police Station on the cycle. He was walking while holding him and reached the Police Station. The Police Inspector talked to him and his brother was sitting outside. Letter for medical examination was given to him and he went to the hospital. He does not know for how much time he remained at the police station. He states that it is false that this brother talked to police at the Police Station. His brother had told him about the incident. To a suggestion that he is giving a false evidence, he denies. He states that it is correct that when he reached the place of occurrence, his brother was unconscious and he regained consciousness after he was given treatment.
25. His brother was brought home after first aid and then he told him about the incident, the same was told to him in isolation. He states that he did not see the incident. He was told about it by Naeemuddin. He got the incident reported on the information given to him by his brother. Except for Naeemuddin no one else came to tell him anything. He discloses the names on the basis of information received from Naeemuddin. He has given the names of Ram Das and Ram Ashrey in his report. He states that when he reached the place of occurrence then except for his brother there was no one else present. He states that on the day of occurrence, the fields were vacant and there was no crop at the place of occurrence. There was a milestone fixed. To a suggestion that his brother in an intoxicated condition hit the milestone and received injuries and died, he denies the same. Further, to the suggestion that he has lodged the report on the basis of what he has heard, he denies the same.
26. Faizuddin PW-4 is the youngest brother amongst the first informant Shamshuddin PW-1 and the deceased Shahjuddin. He states that all the brothers live separately. Shahjuddin makes bidi. He was working in the bidi factory of Devi Prasad. He used to go to the factory daily from the house. Ram Ashrey who is also of the same village was also working in the same factory. He states that in the factory of Devi Prasad illegal country made pistol and guns were also manufactured which was seen by the deceased Shahjuddin. The said fact was told to Devi Prasad by the other workers of the bidi factory and stated that the said fact may be leaked on which he gave Rs. 30,000/- to Ram Das and Ram Ashrey for murdering Shahjuddin. This fact was told to him and his brother by Shahjuddin. Since then, Ram Das was in the search of committing murder of Shahjuddin. He states that the incident is of 07.11.2005 at about 07:00 pm. He and Naeemuddin were returning to the village from Thithiya on his cycle. He was driving cycle while Naeemuddin was sitting behind. At the place of occurrence, he saw Ram Das and Ram Ashrey assaulting his brother with danda and butt of a country made pistol. Shahjuddin received injuries due to the assault on his face and head. It was bleeding. His cycle was lying on the unmetalled road. They then exhorted, on which, Ram Ashrey ran towards the village and Ram Das ran towards Nathuvapur. He states that Ram Ashrey gave the information about the incident to his house. Apart from the said two persons, Awadhesh of village Bhadausa also came there who saw the incident and had exhorted. Then Shamshuddin, Gayasuddin, Raju and Munni came to the place of occurrence from the house. He, Awadhesh and Shamshuddin told about the incident. His brother was aged about 35 years. Then they took his brother to Police Station Thithiya report was got lodged at the Police Station by Shamshuddin. The Police had seen his injuries and had given majroobi chitthi then he was taken to Thithiya Hospital but doctor was not present and no treatment was given and his medical was not done. Then, he was taken to a private doctor Rajendra Katihar who gave him first aid and did dressing of the injury and the injured was brought to the house. Then, in the morning, he was taken to Thithiya from where he was referred to Hallet Hospital, Kanpur. He was treated for three days in Hallet Hospital and on the third day, he died.
27. The inquest was conducted and the dead body was sealed. He, Shamshuddin and other persons had gone to Kanpur. He, Shamshuddin, Pappu, Kaley Khan and Nanhey Khan were appointed as Panch witnesses to the inquest. He identifies his signature on the inquest which was marked as Exb: Ka-4 to the records. The postmortem examination was then conducted and they brought the dead body thereafter to the village and performed the last rites.
28. In cross examination, he states that he saw the incident and is an eye witness. To a suggestion that the incident was informed to the house and then he went to lodge the report, he states it to be false. He had started from the Thithiya at about 07:00 pm. The distance between Thithiya and the place of occurrence is two kilometres. Naeemuddin was with him. He first saw Ram Ashrey. His brother Shahjuddin and Ram Ashrey were going on different cycles. Ram Ashrey was going in the front. At that time it was dark. Vehicles also ply on the road on which he goes to his house. The accused ran away after the incident. He saw the incident from a distance of 50-60 steps. The accused saw them and ran away. He did not chase the accused but had shouted. He shouted as soon as he identified his brother. He does not know as to for how much time did the assault last. He states that his brother did not use to drink liquor before him.
29. The information of country made pistol being manufactured at the cold store was told to him by his brother 2-3 times. He did not give any application at the Police Station for any action. His brother also did not complain about the manufacture of the country made pistol. He did not see country made pistol being manufactured at the bidi factory. He does not know of any differences between the owner of the bidi factory and his brother and neither did his brother ever tell him. His brother did not see him coming behind. His brother did not raise a shout and he did not hear it. When he reached the place of occurrence and turned the person lying there then he identified him to be his brother. He states that there is a milestone fixed at the place of occurrence on the side of the road. To a suggestion that the dead body was found at the milestone, he denies the same and states that it was found about 30-40 steps away from it. It was 07:00 pm, he does not know where there was fog or not. He took his brother and came to the Police Station for lodging a report. The body was not sealed there. The body was sealed in Kanpur about after three days of the incident. The report was lodged on the same day. His brother was in an unconscious state. The police went to the place of occurrence later on but did not go before him. He states that the story of giving of Rs. 30,000/- was not witnessed by him. He had not told the said fact to the Investigating officer. To a suggestion that he did not go to the Police Station, he denies it.
30. The report was not signed by him but was got lodged by Shamshuddin. To a suggestion that his brother in an intoxicated condition banged on the milestone due to which he died, he states to be incorrect. He states that Ram Ashrey had gone to the house and had told about the incident to his sister-in-law Munni Devi. He does not know as to whether Ram Ashrey had gone to the house before he had reached or later. To a suggestion that he did not see the incident and came to know of it while he was at the house, he denies. He states that he told the incident at the house after Ram Ashrey had not given information. His family members went to his brother after receiving information from Ram Ashrey. To a suggestion that he is giving false evidence, he denies.
31. Smt. Munni PW-5 is the wife of the deceased Shahjuddin. In her examination-in-chief she states that the incident is of 07:00 pm. She has two sons and two daughters. Gudiya and Anas being the daughters and Gayasuddin and Shamshuddin are her sons. Her husband used to prepare bidi in the factory of Devi Prasad in Makanpur. He used to go to Makanpur from the house daily. On the day of incident, her husband left the house for Makanpur at 10:00 am and came back at 03:00 pm. He told her to prepare food to which she started preparing it. At that time, Ram Ashrey came to her house and told her husband to accompany him to the cold store at Thithiya for taking out potatoes and will sell them and then they will have food at Thithiya. Her husband then went to Thithiya with him without having food. He did not return till 06:00 pm. Then Ram Ashrey came at 07:00 pm and called her son Gayasuddin and told him that Ram Das has taken his father and is assaulting him at the Bhadausa Road in Thithiya. At that time, she states that both the hands of Ram Ashrey were blood stained and his clothes were also having blood. She then raised a hue and cry and along with her sons, nephew and Ram Ashrey went to the place of occurrence where she saw her husband lying in an injured condition. He was seen by her, Kallu and Gayasuddin and other persons. The cycle was also lying there. Then Ram Ashrey disappeared. She states that her husband had received injuries on face and nose which was bleeding. Then they picked him up and her jeth and other persons went to the Police Station. She came back to the house. The report was lodged by her jeth Shamshuddin. Her husband then died on 09.11.2005 at Hallet Hospital, Kanpur. She states that she, Shamshuddin, Pappu, Nanhey Khan and Kaley Khan were present there. The inquest was conducted and the dead body was taken by the Police. Then the body was brought back home. She states that the death of her husband was due to the assault by Ram Das and Ram Ashrey. She was interrogated by the Investigating Officer.
32. In her cross examination, she states that she is illiterate. She does not know the day of the incident. Ram Ashrey and her husband were friends. They used to be together and often also used to have food together. They used to work together in the factory. They used to go together to the factory. Ram Ashrey for the first time came to her house on the day of the incident at 03:00 pm. He did not sit at the house. Both of them immediately went away. He told her husband to accompany him to Thithiya to which he immediately got ready. The second time Ram Ashrey came to her house was at 07:00 pm. Ram Ashrey did not tell about any fight between her husband and Ram Das. To a suggestion that she is speaking a lie, she denies. To a further suggestion that she had told the Investigating Officer that Ram Ashrey had come to the house and told her that her husband and Ram Das had a fight, she denies. The distance between the place of occurrence and her village is stated to be one kilometre by her. She states that she went on foot to the place of occurrence. She started from her house at 07:00 pm and reached the place of occurrence in half an hour. She was crying and then Ram Ashrey consoled her and made her reach the place of occurrence. She, her nephew and brother then lifted her husband and made him lie down on the road. Ram Ashrey did not hold him. Many persons of the family and about 100-200 peoples of the village were present there who had followed them. The night was moonlit. There was a milestone about 60 steps away from the place where the dead body of her husband was found. She on a suggestion that she did not go to the place of occurrence and is speaking a lie, she denies. She states that the report was got lodged by Shamshuddin after consultation. She did not tell Ram Ashrey to give evidence. The house of Ram Ashrey is about 10 house away from her house. Ram Ashrey did not meet her thereafter. She states her statement to be given for the first time in court and states that she has never given any statement before. She denies the suggestion that she had told Ram Ashrey to give evidence in the matter and as he had refused for it, he has been made an accused. She states that when she reached the place of occurrence, her husband was lying there. Ram Das had run away. She had reached the place of occurrence at about 07:30 pm. She did not see any one assaulting her husband. To a suggestion that she is giving evidence on the same being heard, she denies.
33. Further, to a suggestion that she is giving a false evidence she denies. To a suggestion that her husband was a drunkard and due to the same, he banged somewhere, she denies as result of which he received injuries, she denies.
34. Ram Nath Dwivedi PW-6 is the second Investigating Officer of the matter who took up the investigation on 22.11.2005 which remained with him upto 09.12.2005. He states that the investigation was taken over by him on 22.11.2005 from the previous Investigating Officer Mohd. Hafeez. He perused the case diary and recorded the statements of Faizuddin, Awadhesh, Gayasuddin and Raju on 26.11.2005. Later on, he recorded the statements of Vijay Dwivedi, Rajendra, Dr. S.B. Dwivedi on 09.12.2005. In his cross examination, he states to have recorded the statements of Faizuddin, Awadhesh, Gayasuddin and Raju and states that the said witnesses did not tell him that Ram Ashrey had a fight with the deceased. Further, he states that the said witnesses did not name Ram Ashrey in their statement.
35. Ram Dutt Rathore PW-7 was posted as the Head Constable at Police Station Thithiya. In his examination-in-chief he states that on 07.11.2005 at 22:45 hrs, a non-cognizable report no. 122 of 2005 was registered, in which, the injury report of Shamshuddin of Dr. Chhotey Khan was given by Vijay Kumar Dwivedi on the basis of which on 09.11.2005 GD No. 27 the N.C.R. was converted at 23:05 hrs in Case Crime No. 421 of 2005 under Sections 323, 308, 504 of the Indian Penal Code, 1860. He proves the same which is marked as Exb: Ka-4 to the records.
36. In his cross-examination, he states that in the N.C.R., Ram Das is only named and Ram Ashrey is not named. He did not tell the name of Ram Ashrey to the Investigating officer. He further states that the said case was converted on the basis of the medical examination report. To a suggestion that he did not see the medical report, he denies the same.
37. Dev Raj Singh PW-8 was the Investigating Officer of Case Crime No. 421 of 2005. In his examination-in-chief, he states that after getting the investigation of the matter he perused the case diary, copy of the inquest and postmortem in it. On 09.11.2006 he received the affidavits of Naeemuddin, Faizuddin and Shamshuddin which he copied the case diary. He recorded the statement of Smt. Munni the wife of the deceased on 10.11.2006 and also recorded the statement of Kallu, in which, the name of Ram Ashrey surfaced as an accused. He then recorded statements of other persons and started raids for arrest of Ram Ashrey. Ram Ashrey then surrendered on 03.02.2006. He concluded the investigation in so far as it related to Ram Ashrey and filed charge sheet no. 9 of 2006 against him which is marked as Exb: Ka-4 to the records. He then conducted raids for the arrest of Ram Das but could not find him and then initiated proceedings under Section 82/83 Cr.P.C. against him and later on filed charge sheet against him on 22.04.2006 being charge sheet no. 9-A of 2006. The same is marked as Exb: Ka-5 to the records. Later on, Ram Das was arrested on 26.10.2006 in Case Crime No. 173 of 2006 under Section 25 of the Arms Act.
38. In his cross examination, he states that he got the investigation of the matter on 27.12.2005 and perused the proceedings of the previous Investigating Officer. He states that the informant did not name Ram Ashrey in his statement given to the previous Investigating Officer. He states that the informant on 13.11.2005 gave statement to the previous Investigating Officer and had stated that witness Naeemuddin had seen Ram Das committing marpeet. In the said statement, he had stated that his brother is an injured condition and was only assaulted by Ram Das. Ram Ashrey had not assaulted him. The statement was recorded by the previous Investigating Officer that witness Naeemuddin and Awadhesh had reached the place of occurrence at the time of the incident. He states that the second Investigating Officer R.N. Dubey had recorded the statement of Faizuddin who stated that Ram Das had assaulted the deceased Shahjuddin. There is no reference that Ram Ashrey had participated in the incident. To a suggestion that he did not record any statement and has filed a false charge sheet against Ram Ashrey, he denies. He further denies the suggestion that due to party-bandi in the village, Ram Ashrey has been falsely implicated and false charge sheet has been prepared.
39. Dev Raj Singh PW-8 was then again summoned for cross examination. In his cross examination, he stated that he got the investigation of the matter on 27.12.2005. He stated that he did not go to the place of occurrence and had not prepared the site plan and as such he does not know about the place of occurrence. He had seen the site plan prepared by the previous Investigating Officer. Prior to him Mohd. Hafeez and R.N. Dubey were the Investigating Officers. He had again interrogated Smt. Munni Devi, Lallu, Faizuddin, Shamshuddin etc. The said witnesses were previously interrogated by the previous Investigating Officer. He took the statement of the witnesses again. The incident was of 07:00 pm. At the time of incident, there was dark. The witnesses had told him that the day was ending. He could not tell of any source of light. He states that in the month of November at 07:00 pm, visibility is from a close proximity. The witnesses did not tell him any torch etc. He did not recovery the cycle of the deceased. He did not find the previous Investigating Officer taking into possession plain mud and blood stained mud. He did not prepare the recovery memo of the clothes of the deceased. The previous Investigating Officer also did not take into possession the clothes of the deceased. To a suggestion that the deceased fell from his cycle and died and on the pressure of informant, false charge sheet has been filed after investigation, it is a false investigation, he denies.
40. Dr. Kamal Kumar PW-9 had conducted the postmortem examination of the deceased. In his examination-in-chief, he states about the injuries as noted by him which have been extracted above. He states that the cause of death was as a result of coma due to the injuries received by the deceased and the injury no.1 was sufficient to cause death. He further states that the injury of the deceased can be caused by something like lathi or blunt object. In his cross examination, he states that he had written the time since death from the documents which he had received along with police papers. He states that he did not receive the injury report of the deceased with the police papers. He was had found four injuries on different places on the body. He further states that the injury no.1 can be received by the deceased due to fall from cycle on any hard stone etc.
41. Ram Lal Das PW-10 is a Sub-Inspector who conducted the inquest on the body of the deceased in Lala Lajpat Rai Hospital, Kanpur (also known as Hallet Hospital, Kanpur) which was kept in mortuary on 10.11.2005. He had prepared the same which was proved by him and marked as Exb: Ka-4 to the records. He had further prepared the photo and challan lash of the dead body which was sent for postmortem, the same were marked as Exb: Ka-10 to the records. In his cross examination, he states that he has not brought his sample seal to the Court. He states that he does not know where the same is kept. He states that case crime number and sections are not mentioned in the document Exb: Ka-10 to the records. He states that the information of death was received on 09.11.2005 at 22:40 hrs. He went to the hospital on 10.11.2005 which is at a distance of a half kilometre from the police station. He states that the case crime number and section is not mentioned in any document. The dead body was sealed and then sent. When he reached, he was not able to tell. He states that he has signed on the document. He states that he did not fill the Panchayatnama.
42. Mohd. Hafeez PW-11 is the first Investigating Officer who took up the case on 09.11.2005 for the investigation. He states that the same was registered on the basis of a medical report received at the Police Station. He then recorded the statement of the first informant and inspected the place of occurrence and prepared the site plan which is marked as Exb: Ka-11 to the records. In his cross examination, he states that he had perused the First Information Report and in the same there is no reference of Ram Ashrey committing marpeet. He interrogated the first informant on 13.11.20005 and the first informant told him that he had received information from Naeemuddin that Ram Das has assaulted the deceased with kicks, fists and danda on the road side after throwing him in the drain on the side of the road. He was not told about any assault by Ram Ashrey. The first informant had told him that he had gone to the place of occurrence and had asked Shamshuddin the deceased about the incident to which Shamshuddin told him that in the evening, he was returning from the cold storage Thithiya and behind him Ram Ashrey was coming on his cycle and on that place, Ram Das and Sundar Lal at about 07:00 pm met him and stopped him and Ram Ashrey went ahead. Ram Das then told him to make him sit on his cycle to which he refused on which he started abusing and pushed him, he fell from his cycle and he then started assaulting him with kicks, fists and danda. He states that the first informant had not told him about any assault by Ram Ashrey. He interrogated Naeemuddin and the other eye witness. He states that the assault by Ram Ashrey was not told by him. Naeemuddin had told him that moonlight was there and had told of Ram Das only committing the assault. Ram Ashrey was not seen at the place of occurrence. He had inspected the place of occurrence in the presence of the first informant and the eye witnesses. To a suggestion that no witness had given to any statement and he did not go to the place of occurrence and has done the entire work at the Police Station, he denies.
43. The two accused in their statements under Section 313 Cr.P.C. have stated that the witnesses have given false statement and the case has been instituted against them falsely. They have not led any defence evidence.
44. The initiation of the present case is on the basis of an application dated 07.11.2005 given by Shamshuddin which was initially registered as a non-cognizable report. The first informant Shamshuddin is not an eye witness to the incident. He has categorically stated that the information about the incident has been received by at his house through Naeemuddin PW-1. Naeemuddin PW-1 has not supported the prosecution case and has been declared hostile.
45. After Naeemuddin PW-1 being declared as hostile, the person whose name surfaced later on as an eye witness is Faizuddin PW-4 who is the youngest brother of the first informant Shamshuddin PW-3 and the deceased Shahjuddin. In the application dated 07.11.2005 of Shamshuddin, there is no reference of Faizuddin being an eye witness to the incident. Faizuddin PW-4 claims that he has witnessed the occurrence from a distance of 50-60 steps. He in very categorical terms states that he did not see that his brother was being assaulted. It was later on when he went to the person who was being assaulted, turned him then he recognized him as that he is his brother Shahjuddin. He states that he was coming with Awadhesh who was also on the same cycle on which he was travelling. Awadhesh has not been produced before the trial court. The said witness has stated that it was dark.
46. Smt. Munni PW-5 has all together come up with a new story of her receiving information about the incident through Ram Ashrey, a co-accused in the present matter. She states that Ram Ashrey had come and had taken away her husband on the day of the incident on the pretext of getting potato from cold storage and then selling it out and after that having dinner and then returning on which her husband went with him. She states that Ram Ashrey had then come to her house and had stated that Ram Das had taken away the deceased and is assaulting him. She states that Ram Ashrey had both of his hands blood stained and even his clothes were having blood stains. She altogether gives a different story as that from the application dated 07.11.2005 and the evidence given by Shamshuddin PW-3 and Faizuddin PW-4.
47. The motive for the present case is stated to be that Devi Prasad, the owner of the bidi factory was involved in some illegal work of manufacture of country made pistol which was seen by the deceased and the said fact was informed to him by other factory workers on which he had given Rs. 30,000/- to Ram Das and Ram Ashrey for the murder of Shahjuddin. The said motive has for the first time come in the present case when the statement of Shamshuddin PW-3, Faizuddin PW-4 was recorded who claim that the deceased had told them about this fact. If the deceased had a threat to life from Ram Ashrey then would not have gone with Ram Ashrey, cannot be overlooked.
48. The argument of the learned counsel for the appellant that the sole eye witness Faizuddin PW-4 after the other eye witness Naeemuddin PW-1 has been declared hostile is a chance witness and an interested witness as being the youngest brother of the first informant and the deceased has substance. The incident has taken place at the time when it was dark. The same has taken place on a road.
49. The doctor conducting the postmortem examination has not ruled out the possibility of the deceased receiving the injury by hitting his head on a stone. The statement of Smt. Munni PW-5 that Ram Ashrey had gone to her house with blood stained hands and blood stains on his clothes, is an impossibility. Ram Ashrey though has been acquitted of the charges by the trial court but was not named in the First Information Report and his name had surfaced for the first time when the matter was taken up in investigation by Dev Raj Singh PW-8 from 27.12.2005.
50. The evidence of the only eye witness being Faizuddin PW-4 does not inspire confidence. In so far as the fact that the deceased had given an oral dying declaration to Shamshuddin PW-3 whereby he had described the entire incident and detailed about it to him also does not appear to be true and trustworthy.
51. Dr. S.B. Dwivedi PW-2 who had medically examined Shahjuddin while he was in an injured condition has specifically stated in the medical examination report and even in his examination-in-chief and in his cross examination that Shahjuddin was in an unconscious state. The doctor before whom the first aid was given for the first time to Shahjuddin in an injured condition being Dr. Rajendra Katihar as stated by Faizjuddin PW-4 has not been produced and examined before the trial court.
52. The conclusion thus comes to be drawn that the deceased while in an injured condition was in an unconscious state. There is no evidence or document on record showing his condition contrary to that. Thus telling Shamshuddin PW-3 of the version of the occurrence as stated by Shahjuddin is a concoction.
53. In our opinion, the present case is such in which the benefit of doubt needs to be extended to the appellant Ram Das. We extend the benefit of doubt to him and acquit him of the charges levelled against him.
54. Thus the conviction of the appellant by the trial court is not sustainable in the eyes of law. The trial court committed an error in recording the conviction and sentence of the appellant. Hence the impugned judgment and order dated 29.03.2016 passed by the trial court is liable to be set aside, which is accordingly set aside.
55. The present appeal is allowed.
56. The appellant Ram Das is in jail. He is directed to be released forthwith unless wanted in any other case.
57. Keeping in view the provision of Section 437-A of The Code of Criminal Procedure, 1973 the accused-appellant Ram Das is directed to furnish a personal bond in terms of Form No. 45 prescribed in The Code of Criminal Procedure, 1973 of a sum of Rs. 25,000/- with two reliable sureties in the like amount before the court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Apex Court.
58. The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.
59. The party shall file computer generated copy of such judgment downloaded from the official website of High Court Allahabad before the concerned Court/Authority/Official.
60. The computer generated copy of such judgment shall be self-attested by the counsel of the party concerned.
61. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the judgment from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 05.01.2021
M. ARIF
(Samit Gopal,J.) (Ramesh Sinha,J.)