Ballan and Another vs State of U.P.

Rakesh Tiwari, J.—Heard Sri Kamal Krishna, senior advocate assisted by Sri Ashok Gupta, advocate and Sri S. P. Singh Raghav, senior advocate for the appellants, Ms. Usha Kiran, A.G.A. for the State and perused the record. These aforesaid criminal appeals preferred by appellants Ballan, Nanku, Dariyav, Ram Singh and Subhash challenge the validity and correctness of the judgment and order dated 27.9.2006 passed by the Additional Sessions Judge, (Fast Track Court No. 25), Allahabad in S.T. No. 104 of 1996. State v. Ballan and others, under Sections 147, 148, 149, 302 and 307, I.P.C. P.S. Dhoomanganj. District Allahabad, convicting the appellants for an offence u/s 147, I.P.C. sentencing to them to undergo 6 months'' R.I., u/s 148. I.P.C., sentencing them to undergo 1 year''s R.I. with a fine of Rs. 500 with default stipulation. The trial court has further directed the appellants to undergo 2 months'' S.I. for nonpayment of fine imposed u/s 148. I.P.C. u/s 307 read with Section 149. I.P.C. sentencing them to undergo 10 years'' R.I. and fine of Rs. 1.000 with default stipulation directing to undergo further 6 months'' S.I. in case of nonpayment of fine and u/s 302 read with Section 149, I.P.C. sentencing them to undergo for life imprisonment and fine of Rs. 5.000 and in default of payment of fine to further undergo one year''s S.I.

These appeals have been preferred on the ground that the conviction and sentence of the appellants is against the weight of evidence on record; that it is bad in the eye of law and the conviction and sentence is too severe.

The relevant facts of the case are that Ram Kishun Nishad son of Badal resident of village Madaripur, P.S. Dhoomanganj, District Allahabad submitted a written report on 2.7.95 to the S.H.O. P.S. Dhoomanganj, inter alia stating that there was dispute in their village Madaripur between them and the Yadavas of the village regarding grazing of animals in the field. The police had registered a case u/s 107/116, Cr.P.C. against the parties and since then there is continuous enmity between them. Today on 2.7.1995, the marriage procession of son of Shiv Murat was to go for marriage. Yadavas had taken ''daru'' (alcohol) and were abusing them but the members of the complainant''s party did not retaliate. At about 6.00 p.m. when the ''barat'' was going Ballan and Nanku started abusing Pancham Lal and Ram Chand son of the complainant saying that MALLAH SALE KAFI BADH GAYE HAIN''. On this the son of the complainant told them not to abuse. At that Ballan son of Punna Yadav carrying a licensed gun belonging to Mohan son of Moti Lal. Nanku son of Sharda Prasad Yadav carrying gun of his brother Prem Lal. Ram Singh son of Bachcha Yadav armed with country made pistol, Dariyav son of Nanku armed with gun of his father. Subhash son of Shiv Murat armed with gun of his father, Raj Karan son of Bhola Mallah carrying country made pistol resident of village Madaripur and Kalian son of Kedar Yadav resident of Jodhwal, P.S. Dhoomanganj armed with country made pistol came at their house and started firing from three sides. The son of the complainant namely. Ram Chandra and Brijbhan went to the roof to defend themselves. Ballan and Nanku fired from the front, which hit Ram Chandra, who died on the spot, whereas Brijbhan was injured. At that time, Pancham Lal, who is in service in Military and was on leave came with licensed arms and in order to save his life he fired upon them, which made the assailants run towards the river. It was further averred in the written report that son of the complainant Harish Chand was coming from Allahabad and he was also chased by these persons. Harish Chand had not reached home as yet and that apart from them, this incident had also been seen by Sukh Sagar and Phool Chandra sons of Ram Dhan Mallah of the same village, who tried to help them. The dead body of Ram Chandra is lying in his house and prayed that necessary action may be taken after writing the report.

On the basis of written report after making G.D. entry F.I.R. was registered at Case Crime No. 212/1995. under Sections 147, 148, 149, 307 and 302, I.P.C. against accused Ballan. Nanku, Ram Singh, Dariyav, Subhash, Raj Karan and Kalian on 2.7.95 at about 22.10 hours for the murder of Ram Chandra Nishad and injured Brijbhan.

The investigation of the case was taken over by S. O. Anwar Singh Yadav. A perusal of the F.I.R. shows that it was lodged on 2.7.95 at 22.10 hours at P.S. Dhoomanganj, District Allahabad, which was at a distance of 26 kms. towards east. The Investigating Officer on 2.7.95 in presence of witnesses, Phool Chandra son of Ram Dhan Nishad and Mohan La son of Bhai Lal Nishad, residents of village Madaripur, P.S. Dhoomanganj recovered empty cartridges of 12 bore from near the door of the house of accused Ballan son of Punna Yadav, recovery memo of which was prepared. Thereafter, on 3.7.95 in presence of aforesaid witnesses plain and blood stained cement from the roof of the house of Ram Kishun Nishad was recovered and sealed by the Investigating Officer Recovery memo in this regard was also prepared. Further, 9 empty cartridges were also recovered again on 3.7.95 from the roof of Ram Kishun, the complainant in presence of the aforesaid witnesses regarding which the recovery memo was also prepared. Injured Brijbhan, a/a 25 years was brought by Co. 1193. Jai Ram for medical examination. Following injuries were reported by the Doctor on the body of Brijbhan on examination.

Three semicircular wounds measuring about 0.4 cm. in diameter, placed about 1" apart in the upper end of lateral aspect of left thigh, dept muscle deep, margins are black.

One semicircular wound present 4 cm. below left anterior superior iliac spine, 3 mm. in diameter, rest as in injury No. 1.

One semicircular wound in posterior lateral aspect of left thigh in middle third and two similar wounds on anterior lateral aspect of left thigh in lower third each measuring 0.3 cm. x 0.4 cm., margins are black. Depth muscle deep.

Five semicircular wounds on the posterior aspect of left knee each measuring 0.3 cm. x 0.4 cm., margins black, muscle deep.

Four semicircular wounds on the lateral aspect of left leg in middle third each measuring 0.3 cm. to 0.4 cm. in diameter, muscle deep margins are black.

One semicircular wound on the medial aspect of right thigh at the middle measuring 0.3 cm. in diameter, margins black, muscle deep.

The doctor opined that all injuries were caused by firearm and duration was within one day.

The dead body of Ram Chandra, a/a 28 years, son of Ram Kishun resident of village Madaripur, P.S. Dhoomanganj, District Allahabad was brought by Con. 1115, O.P. Mishra of P.S. Dhoomanganj for postmortem, which was conducted on 3.7.95 at about 4.00 p.m. The deceased was a male of average muscularity. Rigor mortis had passed off from lower and upper limbs. Left cavity pleura contained blood stained fluid. Left lung, pericardium and heart were lacerated and empty. Peritoneum was congested and peritoneal cavity contained blood stained fluid. Small intestine was empty and large intestine was half full. Spleen and both kidneys were lacerated. In the opinion of the Doctor, the deceased suffered death about a day before due to shock and haemorrhage as a result of ante-mortem injuries as under:

Abraded contusion 1/2 cm. x 1/2 cm. on the left side of face just lateral to left eye.

Multiple (25) twenty five abrasion 1/2 cm. x 1/2 cm. present on the left wall of chest, left side of abdomen, left both on upper part of waist and left thigh.

Abraded wound 1/2 cm. x 1/2 cm. on the ventral aspect of the right forearm in its upper third.

One abraded wound 1/2 cm. x 1/2 cm. on the ventral aspect of right forearm about 4 cm. proximate to wrist joint.

Two abraded wounds 1/2 cm. x 1/2 cm. on the front of left side of chest above 4 cm. and medial to left nipple.

Three abraded wounds 1/2 cm. x 1/2 cm. on the aspect of the middle l/3rd of right thigh.

The body of the deceased was handed over to the police alongwith seven small sized pellets and the recoveries of items made by the Investigating Officer to the S.S.P., Allahabad for examination by Forensic Science Laboratory, U. P. Lucknow.

On conclusion of the investigation charge-sheet was submitted in the Court Magistrate concerned, who committed the case to the Court of Session where it was registered as S.T. No. 104 of 1996.

The trial court framed charges under Sections 147, 148, 302 read with Section 149, I.P.C. and 307 read with Section 149, I.P.C. against accused-appellants Ballan, Nanku, Ram Singh, Dariyav, Subhash, Raj Karan and Kalian to which they pleaded not guilty and claimed to be tried.

During the pendency of trial, accused Raj Karan and Kalian died.

In support of its case the prosecution examined Brijbhan. P.W.

1, who is son of the first informant and brother of the deceased. Ram Kishun. P.W. 2, who later on turned hostile, Mohan Lal, P.W. 5 is the witness of fact and Sukh Sagar, P.W. 6 is the witness of occurrence. Apart from above. Dr. Virendra Singh, P.W. 3, Dr. O.P. Vishwakarma. P.W. 4. Ram Snehi, P.W. 7, Head Constable and A. S. Yadav. S.I. P.W. 8 were examined. Accused persons Ballan, Nanku, Ram Singh. Dariyav and Subhash were examined themselves u/s 313, Cr. P.C. and they have stated that they have been falsely implicated in the case due to enmity. The accused persons examined Vijay Shankar Nishad, D.W. 1 and Shanker Lai, D.W. 2 in their defence.

Upon hearing learned counsel for the parties and after appreciation of the evidence on record, the trial court held the accused to be guilty and sentenced them as stated above in the judgment.

Learned counsel for the appellants has raised the following points for our consideration:

The manner of assault as described by the prosecution is not consistent;

Up to the stage of evidence u/s 161, Cr. P.C. the categorical statement of the prosecution witnesses was that the house of complainant was surrounded from three sides;

Recovery of empty cartridges shown from the ''dalan'' and the door of the accused show that there is no crime number mentioned therein;

F.I.R. does not show that accused alone climbed the roof;

There is also no mention about the firing near ''chabutra'' where Brijbhan and Pancham Lal were sitting;

There is no recital in the F.I.R. as to who fired on whom and the manner of firing is against the statement of prosecution witnesses.

It is submitted by the learned counsel for the appellants that nine (9) empty cartridges were found on the roof of the deceased and the injuries on the body of the deceased were examined at 3.15 p.m. on 3.7.1995. The post-mortem report shows that all the Injuries are of same dimension. There is no mention of the direction of the wounds as bullets are said to have been fired from below at the persons on the roof. The direction of the bullets downward and upward or upward to downward in the facts and circumstances is material. The statements of the prosecution witnesses are contradictory to their statements recorded u/s 161. Cr. P.C.

It is argued by the learned counsel for the appellants that a perusal of cross-examination of P.W. 2 shows that in fact a dacoity had taken place. P.W. 2, Ram Kishun had turned hostile as the incident in the manner stated by the prosecution was not true and this fact also finds support from the statement of D.W. 2.

He has then placed reliance upon following the statement of Sukh Sagar. P.W. 6 and submits that the statement of this witness is contradictory to the statement of Brijbhan, P.W. 1:

Dr. O. P. Vishwakarma, P.W. 4 in his cross-examination has clearly stated that he cannot say the directions of the bullets are downward or upward. i.e., vice-versa downward to upward and that the empty cartridge at the house of Ballan, which is contradictory to the statement of injured Brijbhan, P.W. 1. He has also supported the version made in the F.I.R. regarding motive saying whenever he sowed his agricultural field the accused persons get it grazed by their animals and in this regard there was a case registered against the parties u/s 107/116. Cr. P.C. Relying upon the statement that when the assailants exhorted then he alongwith his father and brother Ram Chandra and Pancham Lal climbed the roof whereas accused Ballan and Nanku climbed the roof of their house and the accused started firing in which Ram Chandra was injured and later on died of the injuries. He also stated that he received injuries in the said incident. According to the learned counsel for the appellants, this statement is baseless as no empty has been found on roof of house of Ballan.

Sri S. P. S. Raghav. learned counsel for the appellants in connected criminal appeal submits that the complainant is agriculturist and, therefore, the accused had an ample opportunity to kill them any where but the F.I.R. shows that the incident had taken place on the date of marriage in the house of accused persons, therefore, there was no occasion for them to cause the incident on that date and marred happiness by alleged incident. He further submits that there is also no explanation as to why father of the deceased Ram Kishun was not killed, who was near the deceased. It is further submitted that paper No. 48-Kha, affidavit of P.W. 1 was filed in the trial court on 13.4.2004, whereas his statement in the court below was recorded on 12.8.97 and 2.12.97, i.e., 2 years after the statement was recorded u/s 161. Cr. P.C One of the sons of the complainant is dead and the other is injured, who denied the story, then how his story is to be disbelieved for rejecting his application.

Per contra, Ms. Usha Kiran, learned A.G.A. submits that the incident had taken place in the manner stated in the F.I.R. which is not an encyclopaedia to note every minute details of the incident narrated.: that the accused fired upon Pancham Lal at the ''chabutra'', who was in Military service and had come on 10 days holidays and he had fired in his self defence to protect himself; that P.W. 2, though turned hostile has proved his signatures on the F.I.R. and P.W. 1, who is injured has proved written report, which was lodged at the police station.

She further submits that mentioning of the case crime number in the recovery memo is not mandatory. The Investigating Officer had also recovered 9 empty bullets from there, therefore, it cannot be said that there was no firing from the roof and that the persons on the roof had not been injured or one of them had died. Pancham Lal is the witness of the charge-sheet. Motive is disclosed in the F.I.R., which is prompt and therefore, it cannot be said that there is any question of false implication of the accused persons. P.W. 2, Ram Kishun though has turned hostile but has proved the F.I.R. therefore, the contents of the F.I.R. are true. Hence, the incident is proved and it did take place in the manner.

Upon hearing learned counsel for the appellants and on perusal of the record we find that injured Brijbhan is the son of first informant Ram Kishun and brother of the deceased. Though Ram Kishun. P.W. 2 has turned hostile but Brijbhan. P.W. 1, the injured witness has stood the test of cross-examination in the manner the incident had taken place. Mohan Lal, P.W. 5 is only the witness of ''Ford'' whereas Sukh Sagar, P.W. 6 is the witness of occurrence, who have also corroborated the incident and supported the statement of P.W. 1. Brijbhan. Merely because Ram Kishun, P.W. 2. the first informant turned hostile, it cannot be said that the manner of assault is not consistent as it has been proved by the evidence of two witnesses namely, Brijbhan, P.W. 1. the injured witness and Sukh Sagar. P.W. 6, the witness of occurrence. The contradictions in the statement u/s 161, Cr. P.C. and the statement before the trial court shown by the learned counsel for the appellants are not very material as the statement of P.W. 2 that the accused were surrounded from three sides when firing started is not very material. The accused persons are known to the complainant since his childhood. He has clearly deposed that accused Ballan and Nanku had fired on them and Ram Chandra died in the firing on the roof whereas he was injured there. The police had taken plain and blood stained sample of cemented floor from the roof. The injuries sustained by P.W. 1. Brijbhan are proved from the medical report. The case that the incident was committed by the dacoits has not been found to be believable by the trial court as D.W. 2 also supports the case of the appellants and even none of the accused persons ever has stated this fact about dacoity in their statements u/s 313. Cr. P.C The suggestion to P.W. 1 about the dacoity-cum-incident in which Pancham and Ram Chandra were killed denied. This suggestion is false as Pancham has not died in the incident nor he was injured as on his firing in defence the accused persons made their escape good. In fact, he persisted that the incident had taken place in the manner he had narrated in his evidence. The relevant portion of his statement reads thus:

The said contradiction in the statement of P.W. 1 that "which is not in the F.I.R., is not very relevant as the F.I.R. is not an encyclopaedia where every minute details is to be incorporated. The F.I.R. (check report) is a report lodged on the basis of written report by a complainant informing about the incident which requires police to start investigation of the cognizance of the offence alleged to have been committed. The contention of learned counsel for the appellants that one of the persons In the incident was injured and other had died on the roof, cannot be said to be a material contradiction. There is no cross-examination of Pancham Lal with regard to his statement u/s 161. Cr. P.C. Even in the site plan the Investigating Officer has not mentioned that it was a case of dacoity.

It appears that the witnesses have been pressurized and as such they had turned hostile. The application to recall was rightly rejected by the trial court. The witness, P.W. 2, who was 80 years of age on the date of his statement, i.e. 16.1.2004, has stated that the incident is of 8-9 years back. This witness has lodged the F.I.R. but he has not stated anything in his examination-in-chief about any dacoity having been committed In his house, but has stated so in cross-examination at the hands of defence counsel. The later statement of P.W. 2 in the facts and circumstances of the case does not Inspire confidence. Since the accused themselves have not stated in their statements u/s 161, Cr. P.C. that the dacoity was committed in the house of complainant, so. this story has been cooked up by the defence.

For all the reasons stated above. Criminal Appeal No. 6113 of 2006, Ballan and another v. State of U.P. and connected Criminal Appeal No. 6017 of 2006, Dariyav and others v. State of U.P., are dismissed. The appellants are in jail. They shall serve out the sentence awarded by the trial court.