Avadh Ram and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—This appeal was preferred by seven appellants but during the pendency of the instant appeal, appellant No. 1-Avadh Ram, appellant No. 2-Raja Ram, appellant No. 3-Mewa Lal and appellant No. 5-Munni Lal have expired. Therefore, appeal so far as it relate to them was abated vide order dated 15.9.2015.

Heard Mr. Vishnu Swaroop Srivastava, learned counsel appearing for appellants, Ms. Madhulika Yadav, learned A.G.A. for the State and perused the lower court record.

Under challenge in this appeal is the judgment and order dated 6.10.1982 passed by Ist Additional Sessions Judge, Bahraich in Sessions Trial No. 130 of 1982 arising out of Case Crime No. 113 of 1981, Police Station Kaiserganj, District Bahraich whereby all the appellants were convicted and sentenced as under:--

"(i) Under Section 147 I.P.C. one year rigorous imprisonment.

(ii) Under Section 302/149 I.P.C. imprisonment for life."

Both the sentences were directed to run concurrently.

In brief the case of the prosecution was that the incident of this case took place on 19.4.1981 in the night at about 3:00 a.m. Only deceased Rameshwar and his mother Raghurae (CW-1) were present in the house at the relevant point of time. CW-1 Raghurae was a very old lady aged about 82 years and was suffering from night blindness. In the instant case, Rameshwar is alleged to have been murdered by the appellants. It is alleged that all the accused persons entered into the house of the deceased and caused injuries with lathi. Hearing the cries, the witnesses rushed towards the place of occurrence and recognized the accused persons, who were resident of the same village and they found that dead body of Rameshwar (deceased) was lying inside the house. CW-1 Raghurae was present in the house. However, she could not disclose the names of the persons as she could not recognize them because of her night blindness. The accused persons are alleged to have been recognized by the witnesses in the moonlight and accordingly, F.I.R. was also lodged naming all the seven accused persons in the F.I.R.

After registration of the case, investigation proceeded. The inquest proceedings were conducted. The dead body was sealed and was sent for postmortem. The postmortem on the body of Rameshwar was conducted on 20.4.1981 at 4:00 p.m. and following ante mortem injuries were reported:--

"(i) Contusion with swelling 10 c.m. x 4 c.m. on right side temporal and occipital region of scalp just above ear.

(ii) Contusion 4 c.m. x 2 c.m. on right side clavicular region.

(iii) Contusion 7 c.m. x 2 c.m. on left side just below scapula.

(iv) Contusion 6 c.m. x 3 c.m. On front of right side chest just below nipple."

In the opinion of the doctor, cause of death was shock and haemorrhage as a result of ante mortem injuries.

After completing the investigation, charge sheet was filed against all the named accused persons.

The defence of the accused persons was that because of the earlier enmity, they have been falsely implicated in this case.

In order to prove its case, the prosecution has examined PW-1 Gopi Saran, PW-2 Shatrohan, as witness of fact, PW-3 Head Moharrir Lallan Singh, who has prepared chik report and G.D. of this case PW-4 Dr. S.N. Agarwal, who had conducted postmortem on the body of the deceased. PW-5 S.I. R.P. Kannojia, Investigating Officer of this case. The court has also examined Smt. Raghurae as CW-1.

No evidence in defence was adduced on behalf of the appellants.

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 deceased and CW-1 Raghurae were the only persons, who were inside the house. The entire incident is alleged to have taken place inside the house. CW-1 Raghurae because of her night blindness could not recognize any of the assailants. The prosecution has come with a definite case that accused persons were recognized by the witnesses while they were making good their escape and in the night, it does not appear to be the least probable that they had any occasion to recognize the assailants. It has also been argued that it has come in the evidence that the night was cloudy and it was raining even at the time of incident. So in such circumstances, there must not be sufficient light for the witnesses to recognize the assailants. But the learned trial court has not appreciated the prosecution evidence in correct perspective and has ignored these material points which has rendered its judgment unsustainable under law.

Ms. Madhulika Yadav, learned A.G.A. has submitted that it was a bright night. The witnesses have stated that they have recognized the assailants in the moonlight and it was very common in the rural areas to recognize the known persons of the village even in dim light.

The main thrust of the argument of amicus curiae representing surviving appellants was that the light was not sufficient for the witnesses to recognize the assailants and the manner in which the incident is alleged to have taken place also does not support the fact that any of the witness was in a position to recognize the assailants.

Now the evidence has to be considered mainly on two points (i) whether these witnesses had sufficient time to reach the place of occurrence and recognize the accused persons and (ii) whether the light was sufficient for these witnesses to recognize the assailants.

In the facts of the instant case, the entire incident is alleged to have taken place inside the house of the deceased. Admittedly only CW-1 Smt. Raghurae was the other person living in the said house. She was not examined as prosecution witness but keeping in view the importance of her evidence, she was examined as CW-1 by the trial court. From the very beginning, the prosecution has come with a definite case that CW-1 Raghurae was suffering from night blindness and she told the witnesses, who reached there after the death of Rameshwar that he has been murdered by 6-7 persons and because of her night blindness, she could not recognize the assailants.

Similar statement was given by Smt. Raghurae during trial while she was examined as CW-1. She was the mother of deceased Rameshwar, hence her evidence assumes great importance. She has also stated that in the intervening night there were cloud, rain and thunderstorm which started from midnight and continued for 3-4 hours. So in such circumstances, even if it is assumed that it was a full moon-night even then the said light would be minimized to such an extent as to make it improbable for the witnesses to recognize the assailants from a distance. As per the case of the prosecution the witnesses reached the place of occurrence, hearing the cries of CW-1 Raghurae and barking of dogs. It has also been mentioned in the F.I.R. that the witnesses got up hearing barking of the dogs and cries. But CW-1 Raghurae has nowhere stated that she heard barking of the dogs. She has stated in her examination in chief that she raised alarm then PW-1 Gopi Saran and PW-2 Shatrohan and other persons of the village reached there. She has given contradictory statements as to when she raised alarm. She has also stated that on the asking of the witnesses, she told them that she could not recognize the assailants because of her night blindness.

In her cross examination, she has stated that the night was bright but after the mid night, there was thunderstorm and rain, which continued for 3-4 hours. Thus according to the evidence of this witness at the time of incident, there were clouds and it was raining. Even in the cross examination on behalf of the State, she has admitted that when she came out then her clothes were not wet but it was drizzling. She has also admitted in her cross examination that she could not know whether Rameshwar was murdered in the Kothari . She came to know this fact only after the assailants went away. Thus the evidence of this witness instead of helping the prosecution case has damaged the case of the prosecution because in view of her evidence, there were clouds, rain and thunderstorm. It was cloudy and thunderstorm also continued for few hours after the mid night. Even at the time of incident it was drizzling. Now in this perspective, the evidence of other witnesses of fact has also to be considered. PW-1 Gopi Saran, the complainant of this case, has supported the case of the prosecution. He has stated that the house of Rameshwar (deceased) was situated towards south of his house at a distance of about 50 yards. The case of the prosecution is that seven accused persons have caused injuries. The deceased, as per postmortem report, had received only four injuries. Thus very little time must have been consumed in inflicting these four injuries. So the witnesses, who have come to the place of occurrence after hearing the alarm, had no sufficient time to reach the place of occurrence before the departure of assailants. As per site plan, EX. Ka-7, the accused persons ran away from the place of occurrence towards east side. The distance of the house of PW-2 Shatrohan in the site plan has been shown to be 200 yards from the western wall of the house of the deceased Rameshwar. The distance of house of PW-1 Gopi Saran has been shown to be 75 yards. So it does not appeal to reason that witnesses had sufficient time to reach and recognize the assailants. During night when some person gets up suddenly on alarm or for any other reason, then he takes sometime to regain his senses and it consumes sometime to ensure wherefrom the noise/alarm is coming and to assess the situation. Only thereafter he can proceed towards the said place. Thus as per site plan, the distance of the house of PW-2 Shatrohan was 200 yards while the distance of house of PW-1 Gopi Saran was 75 yards and both these houses were in different directions. Thus in our considered opinion, it was not the least possible for the witnesses to reach the place of occurrence and to see the assailants running away from there. PW-1 complainant Gopi Saran happens to be the first cousin of deceased Rameshwar.

Ms. Madhulika Yadav, learned A.G.A. has emphasized on the evidence of PW-1 Gopi Saran where he has stated that night was bright but we cannot ignore the evidence of CW-1 Raghurae as she was the occupant in the house and was the mother of deceased. She has admitted the fact of thunderstorm and rain. PW-2 Shatrohan has stated in his examination in chief that his house is situated at a distance of about 100 paces from the house of the deceased. But perusal of the site plan shows that the house of this witness is situated towards west of the house of the deceased at a distance of 200 yards. Thus this witness has deliberately concealed the actual distance between the house of the deceased from his own house and such statement has been deliberately given because keeping in view of distance of 200 yards his statement that he recognized the assailants, cannot be believed by the court. In his cross examination he has also stated that PW-1 Gopi Saran had also rushed towards the house of the deceased with him but it does not appear to be correct because the house of PW-2 Shatrohan is in different direction while the house of PW-1 Gopi Saran was in different direction. This witness has stated that accused persons made no effort to give any blow to any of the witnesses. This statement of this witness shows that these witnesses claims to have seen the assailants, if any, from their back because this statement reflects that the assailants did not turn backwards to threaten the witness or to cause any injury to them. So in such circumstances, it would be further impossible for the witnesses to recognize the assailants keeping in view that it was drizzling. So it would not be safe to convict the appellants on the basis of such weak type of evidence, particularly keeping in view the insufficiency of light. There is absolutely no case of prosecution that witnesses had torches or the there was any other source of light.

From the medical evidence, the fact that Rameshwar was murdered stands fully proved. The time of death is also supported by the medical evidence but so far as the ocular testimony of the witness, as discussed above, is concerned, we are of the considered view that the prosecution has utterly failed to connect the appellants with reliable evidence with the instant offence. PW-1 Gopi Saran, complainant has also admitted that he went to the police station in the morning. So it transpires that virtually incident of this case had taken place in the night and no body had seen it. Subsequently the case was concocted and the F.I.R. was lodged in the morning. This conclusion also get support from the evidence of CW-1 Raghurae wherein she has stated that she could not know as to whether Rameshwar was murdered in Kothri and also by her contradictory statement as to when she raised alarm.

Thus in view of the discussion made above, we are of the considered view that this appeal deserves to be allowed and is hereby allowed. The judgment and order dated 6.10.1982 passed by Ist Additional Sessions Judge, Bahraich in Sessions Trial No. 130 of 1982 is hereby set aside. The appellants are acquitted of the charges levelled against them. At present appellant No. 4 Ram Harak, appellant No. 6 Sadhu are in jail. They shall be released forthwith, if not wanted in any other case. Appellant No. 7 Rakshi Ram is on bail. He be set at liberty. His bail bond is cancelled and sureties discharged.

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