Balak Ram and Others vs State of U.P.

A. N. Gupta, J.—Balak Ram, Ram Kishan Awasthi and Onkar Nath alias Guddu have preferred this appeal against the judgment and order dated 1961996/2061996 of Sri Jagdish Prasad, Special/Additional Sessions Judge, Kheri convicting and sentencing appellant Balak Ram under Section 302, IPC to imprisonment for life and appellants Ram Krishna and Onkar Nath alias Guddu under Section 302/34, IPC to imprisonment for life.

The prosecution case is that on 821993 informant Brii Nandan son of Jang Bahadur Tewari of village Kairaha, P.S. Dhaurahra, district Kheri, his elder brother Gokul Nandan (deceased) in the company of covillagers Ram Prakash and Keshav Ram were returning to their village Karuwa in a tractor (USH 3067) after getting their sugarcane weighed at the cane center Basantpur and leaving the laden trolley at the centre. The tractor was being driven by Gokul Nandan. The younger brother Jagdish Nandan and Surrendra Kumar were coming behind the tractor on a motorcycle. When the tractor was nearing trij unction known as ''Kharvahiya Karanha Tiraha'' at about 5.30 p.m. appellants accompanied by an unknown person, who was on a bicycle, appeared and signalled the tractor to stop. As soon as Gokul Nandan stopped the tractor, the unknown person dragged Gokul Nandan and at the same time Ram Krishna and Onkar Nath alias Guddu exhorted that Gokul Nandan be done to death. Appellant Balak Ram fired a shot with his country made pistol at the chest of Gokul Nandan who fell down seriously injured and died on the spot. On the alarm raised by the victims and hearing the sound of firing, villagers were attached to the spot. Thereupon the miscreants escaped by entering in the sugarcane field towards north of the road. While escaping the miscreants were abusing and threatening the complainant''s party. This crime was committed in the background of a dispute in respect of certain land. According to the prosecution case, a piece of land was purchased by the informant etc. from Jagdish and one Saddiq had also made an agreement to sell that very land to appellant Ram Krishna, but later on there was a compromise.

The FIR of the incident was lodged by Brij Nandan on 821993 at P.S. Dhaurahra in the same night at 11 p.m. According to chik FIR the distance of the Police Station from the spot is 4 kms. On the basis of the FIR a case was registered against the appellant and one unknown person and the investigation ensued. S.I. Muni Lal Chawdhary Pw 6 started investigation on 821993 itself. He rushed to the spot and interrogated the informant and after midnight interrogated other witnesses, namely, Jagdish Nandan, Surrendra Kumar, Ram Prakash and Keshav Ram. In the morning the Investigating Officer prepared the inquest report and sent the body for postmortem examination. He took bloodstained and plain earth from the spot and prepared siteplan. He also took into his possession one old used bicycle bearing frame No. P25631 and prepared recovery memo. The Investigating Officer also took into his possession one empty cartridge of .12 bore from the spot and prepared a memo of the same. The postmortem examination on the body of the deceased Gokul Nandan was conducted by Dr. VK. Dikshit PW 7 on 921993. The doctor found that the deceased was 38 years of age and death had occurred about one day prior to the postmortem examination. The doctor noted the following injuries on the person of Gokul Nandan:

(i) Firearm wound of entry 2 cms. x 2 cms. x chest cavity deep on the upper past of chest and left side just below clavicle, Margins inverted and irregular. Blackening and tattooing present around the wound in an area of 3 cms. below and 1 cm. above the wound. The underlying 1st, 2nd, 3rd ribs, alongwith the left clavicle were found fractured. The upper part of left pleura and lung and ascending orata were found lacerated. Left chest cavity contained 2 liters of fluid and clotted blood. One wad piece and 7 pellets were recovered from the cavity and 16 small metallic pellets were recovered from the posterior chest wall. The direction of the wound was from front to back and lateral little upwards.

(ii) Abraded contusion 2 cm x 1 cm. on the front of right leg, 10 cm. above the right ankle.

Death was due to shock and haemorrhage as a result of antemortem injuries.

After completing the investigation, the Investigating Officer submitted chargesheet and in usual course the case was committed to the Court of Sessions. At the trial appellants denied the prosecution case and claimed to be tried. In support of its case, the prosecution examined seven witnesses including three eyewitnesses. Brij Nandan PW1 is brother of the deceased and is informant of the case. P W 2 Ram Prakash was alleged to have been travelling on the tractor alongwith the deceased and PW 3 Jagdish Nandan who was also brother of the deceased, was coming on the motorcycle behind the tractor. PW 7 Dr. V K. Dikshit, as mentioned earlier, had conducted the postmortem examination. PW 6 S.I. Munni Lal Chawdhary was the first Investigating Officer. PW 5 S.I. Tribhuwan Singh Rathpre had also conducted part of the investigation. PW4 Rakesh Pratap Singh had finally investigated the case and submitted chargesheet. In their defence, the appellants examined Sheo Kumar Shukia as D.W. 1 to prove alibi of Ram Krishna Onkar Nath.

After scrutinising the evidence on record, the learned trial Judge accepted the prosecution case and convicted and sentenced the appellants as mentioned earlier. The appellants have now come up in appeal to this Court.

We have heard learned Counsel for the appellants Sri Nagendra Mohan and the learned Additional Government Advocate at length and have gone through the evidence on record.

It has been submitted by the learned Counsel for the appellants that in fact the incident took place sometime after nightfall and none of the eyewitnesses was really present at the time of the incident and later on when information of the murder reached the village, the informant and other persons reached the spot and thereafter they approached the police station and in fact the FIR came into existence on 921993.

We have given our careful consideration to the entire material on the record. According to the case of the prosecution, this incident took place at 5.30 p.m. but according to defence case, the incident had taken place after nightfall. The time suggested by the prosecution was around sunset in the chilly February evening. Learned Counsel for the appellants has drawn our attention to the fact that in the original written FIR initially the date was mentioned as 921993 and even at the bottom of the written report initially the date was written as 921993, but figure ''9'' was made to appear ''8'' by overwriting at both the places. Learned Counsel for the State has submitted that the date written at both the places in 821993. We have carefully examined the written report and we are of the view that there can be no doubt that initially the date written in the FIR was 921993, but by overwriting it was made to appear 821993 at both the places. It is a telltale circumstance which goes to show that the FIR came into existence on 921993 and not on 821993. Even otherwise, it appears that this FIR was not the spontaneous work of the informant. In the FIR it was mentioned that the imformant had gone to the Police Station to lodge the FIR leaving the deadbody on the spot in the care of the villagers. The informant in his deposition in Court stated that from the spot he went to his village and there he wrote out the FIR and then proceeded to police station. If the FIR was written in the village, the above lines would not have found place in the FIR. When the witness was crossexamined, he stated by the word "villagers" he meant villages of village Basantpur and his own village. Had the FIR been written by the informant in his village, the informant could not have mentioned that the dead body was in the care of the villagers of these two villages. All the above shows that not only the date and time of lodging the FIR is doubtful, but in all likelihood the FIR was written at the police station.

According to the prosecution case, the incident took place at about 5.30 p.m. but the circumstances show that it took place much afterwards. It is noteworthy that even if we go by the prosecution case that the FIR was lodged at 11 p.m. (night) at the Police Station which is only 4 kms. from the spot, the inordinate delay stands unexamined. To overcome the time lag between the incident and the lodging of the FIR, the informant gave out that after the incident he went on foot to his village and thereafter he proceeded to the police station. According to the case of the prosecution itself, there was a motorcycle readily available to the informant. It is the own case of the informant that PW 3 Jagdish Nandan who was younger brother of the informant had also arrived there at the time of the incident on his motorcycle. Since the motor cycle was very much there it was quite easy for the informant to lodge FIR within an hour or two but the fact remains that the FIR was lodged at 11 p.m. which casts doubt about the time of incident and at any rate there was undue delay in lodging the FIR. The tractor was also there on the spot and it is the admitted case of the prosecution that the tractor was running to and from the spot to the village after the incident. Considering all these facts, it is clear that every thing is not well with the FIR. In all likelihood the FIR came into existence next morning following the incident, and even if the FIR was lodged at 11 p.m. it was highly belated and there was enough time for deliberations and consultations to implicate the appellants.

The prosecution case is otherwise also highly discrepant and self contradictory. According to site plan the incident took place on the road running eastwest while the deceased was coming on the tractor from the east to west. Point ''C'' has been shown on the southern side of the road at the place where the deceased has been pulled from the tractor. The prosecution case is that immediately after sustaining the gunshot, the deceased died on the spot. It is surprising to note that point ''X'' where the body was found is towards northern side or the road. The evidence shows that the road is about 18 feet wide. We are at a loss to understand how the deadbody travelled to the northern side of the road whereas according to the prosecution case, the deceased died on the southern side of the road. Not only this, at point ''B'' a cycle was found lying close to point ''X'' arid there were bloodstains even on the cycle. All this goes to show that the very structure of the prosecution story is artificial and there are lacunae which'' have not been explained.

The story of the deceased coming on a tractor in the company of three others has also been seriously challenged by the learned Counsel for the appellant who contended that the story has been invented in order to explain the presence of the prosecution witnesses on the spot. Admittedly, the informant is resident of village Karua and according to his own evidence the distance of Karua is about 3 kms. from the spot. There appears to be substance in the submission of the learned Counsel for the appellants. According to evidence of PW 1 Brij Nandan the tractortrolly laden with sugarcane had been left at the cane centre and the deceased and his companions were coming on the tractor without any trolly. Admittedly, no blood was found on the tractor even though the deceased was shot when he was almost in the process of being pulled from the tractor. In his zeal to strengthen the prosecution case, the Investigation Officer stated that he found not only the tractor but also its attached trolly at the spot and he inspected the same. However, after recording of the evidence of the witness, the prosecution realised that by his overzealousness the Investigating Officer has spoiled the case and a serious discrepancy has been introduced in the prosecution case as the eyewitnesses had stated that the trolly had been left at the cane centre with sugarcane laden on it and hence on the next day, i.e. 541996 the prosecution reexamined the Investigating Officer who stated that in fact he did not see the trolly and to lend countenance to his statement made on 541996 he stated that there was no mention of the presence of the trolly in his casediary. However, we are of the view that the vacillating statements of the Investigating Officer are not worthy of credence. In this connection we may observe that in his statement recorded on the first day, the Investigating Officer was rather emphatic in saying that he did find the tractor trolley and he went on to state that it was of yellow colour. The matter does not rest here. At one place, the informant blurred out that after the murder, the tractor was running to and from the spot to the village. To overcome this admission of the informant, the Investigating Officer tried to riggle out by stating that after he had reached the spot, he got the tractor removed from the place of incident and that he prepared the siteplan in the following morning. This again does not fit in with the statement of the Investigating Officer made in para 3 of his deposition that since he found the tractor present at point ''C'' shown in the site plan, hence he depicted it be showing point ''C''. He also stated that the tractor with its trolley was there. As mentioned earlier, no blood had been found on the tractor which may vouch for the correctness of the prosecution case and on the other hand, a cycle was found lying close to the deadbody with bloodstains on it. We are of the view that the story of the deceased coming'' on the tractor with two witnesses sitting on it doubtful. No wonder that the deceased was coming all alone on a cycle when he was done to death and this accounts for tire presence of blood on the cycle which was found lying on the northern side of the road close of the deadbody.

The prosecution case regarding the manner of assault on the deceased is also discrepent. As already mentioned earlier, the deadbody was found by the Investigating Officer on the northern side of the road. The evidence of PW 1 Brij Nandan shows that the deceased was on the tractor and as soon as he was pulled from the tractor he was shot and fell down dead. The prosecution was faced with the anomaly of the deadbody lying away on the northern side of the road away from the tractor and hence the witnesses tried to offer explanation by introducing the story of dragging which stands belied by the evidence of PW 2 Ram Prakash who has unequivocally stated in para 6 of his evidence that as soon as the unknown miscreant caught the arm of the deceased, appellant Balak Ram fired at him and the deceased fell down from the tractor and died. The words in his evidence are : "GOKUL NANDAN KE BAHEN PUKARI, BALAK RAM MULJIM NF. FIRE KAR DIYA AUR GOKUL NANDAN TRACTOR SE NEECHE GIR GAYE". At the risk of repetition, we may again observe that the prosecution has not explained as to how after the deceased had been shot and having died on the southern side of the road, his body as well as the cycle having bloodstains was found on the northern side of the road about 18 feet away.

It is also conspicuous to note that in this case only Balak Ram appellant, is said to have been armed with a firearm while all the other accused i.e. Ram Kishan Awasthi and Onkar Nath alias Guddu and the other unknown miscreants were all without any arm, Even then none of the witnesses including two real brothers of the deceased offered no resistance. This only goes to show that in all likelihood these witnesses were not present. At the same time if all the accused had come with the avowed object to commit murder it does not stand to reason why Ram Kishan Awasthi, Onkar Nath alias Guddu, appellants, and their unknown companions were totally unarmed.

Learned Counsel for the appellant has also argued that the eyewitness account is contradicted by the medical evidence on the record. It was a chilly evening of February when the incident look place. According to the prosecution case, the deceased was wearing a bushshirt and a sweater as would appear from the fact that these clothes were taken into possession by the doctor at the time of postmortem examination. It is unexplained by the prosecution how blackening and tattooing was found present around the gunshot wound in an area of 3 cms. x 1 cm. when that portion of the body was covered by the abovementioned clothes. Learned Sessions Judge had tried to overcome the difficulty by observing that some of the pellets may have entered into the body and thereafter the other pellets that followed may have caused blackening and tattooing around the injury sustained by the deceased. If the deceased was wearing a bushshirt and a sweater at the time of the incident, blackening and tattooing was not possible and the gun powder which causes blackening and tattooing would have deposited on the clothes of the deceased. The reasoning of the learned ''Sessions Judge does not appear to be sound as it was a case of one gunshot and the pellets would be travelling enmasse without any perceptible time lag.

There is yet another intriguing feature in this case. The deceased was not wearing any shoes though he was found to have been wearing socks. It is not understandable that if the deceased had really gone to the cane centre he would have been putting on shoes and not only wearing socks.

In view of the above discussion, we are of the view that the prosecution has not been able to prove its case beyond the shadow of doubt against the appellants and they are entitled to acquittal.

The appeal is allowed. The conviction and sentence of the appellant Balak Ram under Section 302, IPCand the conviction and sentences of appellants Ram Kishan Awasthi and Onkar Nath alias Guddu under Section 302/34, IPC are setaside. Appellant Balak Ram is in jail. He shall be released forthwith unless wanted in any other case. Appellants Ram Kishan Awasthi and Onkar Nath alias Guddu are on bail. They need nor surrender. Their bail bonds are discharged.