Amrendra Tiwari and Others vs The State of U.P.

Surendra Vikram Singh Rathore, J.—1. Mr. Bhola Singh Patel, learned counsel for the appellants, and Mr. Umesh Verma, learned AGA for the State, were heard at length.

Under challenge in the instant criminal appeal is the judgment and order dated 01.07.1982 passed by 8th Additional Sessions Judge, Sitapur, in Sessions Trial No. 548 of 1981 arising out of Case Crime No. 201 of 1977, Police Station Talgaon, District Sitapur, whereby 9 accused persons including present surviving appellants were found guilty for the offence and were convicted and sentenced as under:--

"(i) 302 IPC read with Section 149 IPC - Imprisonment for life;

(ii) 201 IPC read with Section 149 IPC - Rigorous imprisonment for a period of five years, and

(iii) 148 IPC - Rigorous imprisonment for a period of two years."

All the sentences were directed to run concurrently.

In this case, 12 accused persons were named in the first information report but during trial accused Surendra, Amar Nath and Nattha son of Behari expired and therefore their case was abated and only 9 accused persons were convicted. However, during pendency of the instant appeal, 6 accused persons namely Amrendra Tewari, Banwari, Ram Autar, Chandou, Vidya Ahir and Natha Ahir expired and vide our order dated 16.12.2015 the appeal so far as it relates to them was abated. Now the surviving three appellants namely Uma Shankar, Raj Kishore and Santosh are before us.

In brief, the case of the prosecution was that the complainant Ram Bilas got a first information report scribed by Ashok Kumar son of Rameshwar Dayal and gave it at the police station Talgaon, District Sitapur, on 07.10.1977 at 09.10 AM alleging therein that on 06.10.1977 the complainant along with his wife was lying in the veranda of his house after taking meals. His son Rameshwar Dayal, his daughter in law and grandsons Santosh, Ashok, Dinesh and Sushil were also lying in the western veranda inside the house. Lanterns were lit in the house where the complainant was sleeping as well as where Rameshwar Dayal along with his family was lying. The door of the house was open. At about 09.30 PM, all the accused persons trespassed into the house from southern direction. They were armed with deadly weapons like rifle, country made pistols, guns, hammer and axe. As per version of the first information report, accused Amrendra, Surendra and Amar Nath were armed with guns and surviving appellants Uma Shankar and Santosh were armed with country made pistols and Raj Kishore was armed with hammer. Since the remaining accused persons have already expired therefore we do not consider it necessary to specify the respective weapons assigned to them in the first information report. Two or three unknown persons had also accompanied them. Accused persons were identified by the complainant side in the light of torches and lantern. They started the search of Rameshwar Dayal son of the complainant inside the house. Some of the accused persons went on the roof of the house in search of Rameshwar Dayal and started firing and breaking the roof of the house with the help of hammer. When his son Rameshwar Dayal tried to run away to save his life then he was shot dead in veranda by Amrendra, Banwari and Nattha. The complainant having an opportunity to save his life ran to the village and started hue and cry. On such alarm raised by the complainant the other witnesses namely Parshadi, Bhidai, Lallu and others reached there with torches and lathis in their hands. Out of the persons so assembled who were having licensed gun started firing. The accused persons looted the house of the complainant (details of the looted property have been furnished in the first information report) and the dead body of Rameshwar Dayal was also taken away by the appellants. The accused persons were identified in the light of torches and lantern. The complainant could not dare to lodge the first information report in the night due to fear of the accused persons and it was lodged in the following morning.

After registration of the case, the investigation proceeded. The place of occurrence was inspected. During investigation, the dead body of Rameshwar Dayal could not be recovered nor any alleged looted property could be recovered from the possession of any of the accused persons. From the place of occurrence, blood stained as well as plain earth was recovered and its memo Ext. Ka-5 was prepared. 9 empty cartridges of 12 bore and 2 empty cartridges of 315 bore were also recovered and its memo Ext. Ka-6 was prepared. Torches of the witnesses were also taken into custody and their memo was prepared and the same were handed over to the persons concerned. After concluding the investigation, charge sheet was filed against all named accused persons.

The case of the defence was of total denial and their false implication due to enmity. Appellant Nattha had stated in his statement under Section 313 Cr.P.C. that initially Rakesh Awasthi had lodged a false case under Section 307 against him and his brother Ram Autar and now he has been falsely implicated in this case in collusion with Ram Bilas. It was pleaded on behalf of the accused persons that deceased Rameshwar Dayal was a dacoit. There was a rumour in the village that Rameshwar Dayal had gone to commit a dacoity about 3-4 days and thereafter he was missing and due to enmity, this false case has been concocted against them.

In order to prove its case, the prosecution has examined PW-1 Mendai Lal, PW-2 Parshadi, PW-3 Ram Bilas - the complainant of this case, and PW-4 Ashok Kumar as witnesses of fact. PW-5 is R.S. Chaturvedi, who has proved the Chik report and GD of this case as secondary evidence. This witness had accompanied the Investigating Officer Shri Ram Raj Singh on 07.10.1977. He has also proved the documents prepared during investigation as secondary evidence and has also proved the recovery memo of blood stained as well as plain earth as Ext. Ka-5. As CW-1 Smt. Devli Devi wife of Rameshwar Dayal was examined.

After appreciating the evidence on record, learned trial court has convicted the appellants, as above, hence, the instant criminal appeal.

Submission of learned counsel for the appellants was that in the instant case the evidence of the prosecution was wholly unreliable. No role of firing in the first information report was assigned to the present surviving three appellants. PW-4 Ashok Kumar has also not identified them. PW-3 Ram Bilas has not seen any incident. The first information report itself is a fabricated document and was anti-timed but the learned trial court has ignored all these important aspects of the case and has wrongly convicted the appellants.

The submission of learned AGA was that learned trial court has convicted the appellants by a reasoned judgment and the appeal has no force and deserves to be dismissed.

In the light of the rival submissions, we will consider the evidence of the prosecution. The first point to be considered is whether the first information report of this case was lodged at the time as alleged by the prosecution or it was anti-timed. According to the case of the prosecution the first information report was lodged by Ram Bilas which was scribed by Ashok Kumar son of Rameshwar Dayal. Ram Bilas has been examined as PW-3. On the point of first information report he has stated in his examination in chief that Ashok Kumar is son of Rameshwar Dayal. First information report was scribed by Ashok Kumar on the dictation of his wife, while according to the case of the prosecution the first information report was scribed by Ashok Kumar on the dictation of the complainant himself. Thus, the origin of the first information report itself comes under suspicion. Perusal of the chik report shows that it was registered under Section 396 and 201 IPC. The prosecution has proved Ext. Ka-5 which is recovery memo of blood stained as well as plain earth. There is no dispute to the fact situation that this document came into existence after registration of the first information report and in this document, case crime No. 29 is mentioned and Sections of the offence have been mentioned as 460 and 201 IPC. Apparently it does not appear to be connected with the instant offence but this recovery memo was prepared in the presence of Ram Prasad Shukla and Manohar Lal Singh and these two witnesses are also the witnesses of recovery memo Ext. Ka-6 which is regarding recovery of empty cartridges. However, no case crime number and sections under which the case was registered were mentioned in the recovery memo Ext. Ka-6. Likewise details of case have not been mentioned in the memo of recovery of torches while the same has also been signed by Manohar Lal Singh and Ram Prasad Shukla. Admittedly the dead body of Rameshwar Dayal was not recovered. Ext. Ka-5 leads to the only conclusion that by the time this memo was prepared the first information report was not in existence and even the Investigating Officer was not sure whether it was an offence under Sections 460 and 201 IPC or under Sections 396 and 201 IPC nor he was sure as to what is the correct case crime number on which the case has to be registered. So these circumstances lead to the only conclusion that the first information report of this case was anti-timed. Anti-timing of the first information report creates doubt regarding the correctness of the prosecution story because it creates a suspicion that prosecution has come with a coloured version. But law is settled that even if the first information report is found to be anti-timed even then it, by itself, cannot be a ground to discard the entire case of the prosecution on this score alone but definitely a duty is cast upon the court to scrutinize the case of the prosecution with extra care and caution.

Before proceeding further we prefer to give a brief narration of the prosecution evidence. PW-1 Mendai Lal was examined as an eyewitness who has seen the incident from outside the house. He reached near the place of occurrence hearing the noise. He has stated that he had not seen the dead body of Rameshwar Dayal and he had not recognized the miscreants and none among the accused persons who were present in the court was among the miscreants. This witness was declared hostile and cross examined by the prosecutor but nothing material could be elicited in his cross examination to lend support to the case of the prosecution.

PW-2 is Parshad. He has also stated that he was in his fields. Hearing the noise, he went towards the house of Ram Bilas but he came back due to fear. This witness was also declared hostile and was cross examined by the prosecutor but nothing material could be elicited in his cross examination to support the prosecution.

PW-3 is complainant Ram Bilas. He has stated that at the time of incident he was with his wife in the veranda of his house. There was light of lantern. About 12-14 miscreants entered into the house. They were armed with guns, rifle, country made pistol, hammer and kulhari (axe). When he recognized them they were trespassing into his house. Amerendra, Amar Nath, Surendra and Banwari were armed with guns. Nattha was armed with rifle. Ram Autar, Uma Shankar and Santosh were armed with country made pistols. Vidya Ahir and Raj Kishore were armed with hammers and Chandu was armed with axe. After entering into the house when these persons started firing then he ran out of his house and came under the banyan tree where he became unconscious and thereafter he does not know as to what happened. While according to the first information report he after coming out of his house raised alarm and on his alarm other persons of the village assembled there. The dead body of his son was not found in his house. He has also supported the story of looting the house hold goods. After the accused persons ran away then he regained his senses. Thus, this witness has supported the case of the prosecution only to the extent that the miscreants trespassed into his house. Thereafter he ran out of his house and was not aware as to what had happened thereafter. So he has not given any evidence regarding the murder of his son.

PW-4 Ashok Kumar is the son of the deceased Rameshwar Dayal. He has stated that he was inside the house along with his parents. There was light of lantern. About 10-12 miscreants entered into his house. Some remained on the ground floor and some went on the roof of the house. The persons who were on the ground floor started the search of his father with the help of torch. When his father made an effort to run away from there then two persons caused his death by firing on him. He has stated that Banwari and Nattha fired with their gun and rifle. He has stated that he could recognize in all 6-7 miscreants. He has disclosed the names of such persons who were recognized by him as Santosh, Nattha Ahir, Chandu and Vidya. Thus, he has not recognized the surviving three appellants who are before us.

CW-1 Smt. Devli Devi is the wife of the deceased Rameshwar Dayal. She has also supported the prosecution story that they were present in the house and there was light of lantern. She has stated that some of the miscreants went on the roof of the house and some remained on the ground floor. Some became busy in searching the house hold goods and the remaining accused persons started the search of her husband. When her husband made an effort to run away from there then Uma Shankar armed with rifle and Santosh son of Bihari armed with gun fired at him due to which her husband died. Thereafter these accused persons wrapped the dead body of her husband in a quilt which was tied with the help of a rope and was hanged in the lathi like a bundle and thereafter they went away. She had cried due to which accused persons also caused her injuries with the butt of rifle and gun. She was given blows of butt of gun and rifle by Santosh and Uma Shankar. In the morning her mother came and took her to Sitapur where she was treated in the hospital and was medically examined. She remained in Sitapur hospital for one day and one night and thereafter she was referred to Lucknow. She was admitted in Balrampur hospital where she was operated. She remained in Balrampur hospital for about one month. This witness has expressed her ignorance as to when and by whom the first information report of this case was lodged because she was unconscious. Her husband was fired at only by Uma Shankar and Santosh. In cross examination on behalf of appellants she has stated that her father-in-law and mother-in-law had left the house one hour before arrival of the miscreants and her father-in-law had asked her to close the doors. This witness has stated that she has never visited Tiwaripur. She does not move out of her house. She has no relationship in village Marsanda nor she ever visited village Marsanda. Her husband was teacher there. She also does not go to village Raghubirpur nor she has any relationship in village Raghubirpur. Likewise in village Bhulbhulapur she has no relationship nor she has ever visited the said village.

No other witness of fact has been examined by the prosecution.

Admittedly PW-1 and PW-2 have not supported the case of the prosecution. PW-3 the complainant in his evidence has created great suspicion regarding the origin of the first information report which has been discussed in earlier part of the judgment. In cross examination this witness has admitted that a dacoity was committed in village Sheetalpurwa in the houses of Lodh, Ahir and Gadariya. In the said dacoity, his son Rameshwar Dayal, his brother-in-law (Sala) Shiv Bhagwan and Rajesh, his Shadu (co-brother) were named as accused persons. This dacoity was committed in the year 1976. Shiv Bhagwan is the resident of village Munderi and Rajesh is the resident of Maanpur. This case was registered under Section 396 IPC. One Vidyadhar of village Munderi was murdered. In that case, his son Rameshwar Dayal, Shiv Bhagwan and Rajesh Awasthi were named and the said case is still pending. In the murder case of Vidyadhar, accused Uma Shankar and Santosh were the eyewitnesses.

CW-1 Smt. Devli Devi in her cross examination has also admitted that her brother Shiv Bhagwan was accused in several cases. Her husband about three years prior to this incident had gone to jail in a case of village Munderi and he was released on bail after about a week. The evidence of this witness is contrary to the initial version of the first information report. The first information report of this case is alleged to have been scribed in the morning by the son of this witness but there is nothing in the first information report to infer that she was also caused injuries by any of the miscreants. Neither there is any medical examination report of this witness nor any document of her treatment could be proved by the prosecution during trial to corroborate her statement. According to her statement, she had sustained several injuries and because of such injuries, she was referred to Lucknow from Sitapur where she was operated and hospitalized for about one month. She has also stated that her father-in-law and mother-in-law had left the house about one hour prior to this incident. Thus, this witness has totally denied the initial version of the prosecution and has denied the presence of the complainant and his wife at the time of the incident. Virtually it is another blow on the genuineness of the first information report because as per evidence of CW-1 neither the complainant nor her son had seen the incident. As stated earlier PW-4 Ashok Kumar has not recognized any of the surviving appellants during trial. So his evidence, so far as the present surviving appellants is concerned, becomes insignificant. Among the surviving appellants, CW-1 Smt. Devli Devi has assigned the role of firing to Santosh but she has also stated that Santosh was armed with a single barrel gun. She has also stated that she was given blows by butt of rifle and gun by Santosh and Uma Shankar while, according to the first information report, appellant Santosh Kumar was armed with country made pistol and not with a single barrel gun. Even the complainant in his evidence has assigned country made pistol in the hands of appellant Santosh Kumar. While PW-4 Ashok Kumar has stated that fires were shot on his father by Banwari and Nattha. It has also come in the evidence that deceased Rameshwar Dayal was also involved in so many incidents of dacoity. The appellants have come with a definite defence that he had gone to commit dacoity and when he did not come back for few days then this false case has been concocted against them due to enmity. The manner in which the dead body is alleged to have been taken away by the miscreants appears to be highly improbable to the case of the prosecution. There was pressure of so many persons of the village who were present outside the house of the complainant armed with licensed gun. So in such circumstances, it does not appeal to reason that the appellants could have carried the dead body on their shoulders because in that condition it was not possible for them to run with speed and they could have easily been chased by the villagers. It is really surprising that neither the dead body nor any other alleged looted article was recovered from any of the appellants.

Thus, keeping an overall view of the matter and after a very careful scrutiny of the prosecution evidence, we are of the considered view that the appellants deserve to be granted the benefit of doubt. Thus, this appeal deserves to be allowed and is hereby allowed. Appellants are acquitted of the charges levelled against them. At present appellants are in custody. They shall be released forthwith if not wanted in any other case.

Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.