Bhota and Ors. vs State of U.P.

M.C. Agarwal.

These two appeals are directed against the judgment and order dated 781980 passed by the Illrd Additional Sessions Judge, Fatehpur, whereby the learned Addl. Sessions Judge found appellants Bhola, Lootey, Harish Chandra, Bhadaiya and Ram Vishal in Appeal No. 1717 of 1980 guilty of offences under Sections 147/148 and 302/149, IPC The appellants Harish Chandra and Bhadaiya have been convicted for the offence under Section 148, IPC and sentenced to undergo rigorous imprisonment for two years each. Appellants Bhola Lootey and Ram Vishal were found guilty of an offence under Section 147, IPC and have been sentenced to undergo rigorous imprisonment for a period of one year each. All the five appellants have been found guilty of an offence under Section 302 read with Section 149, IPC and have been sentenced to undergo imprisonment for life. The appellants have also found guilty of an offence under Section 201, IPC but no separate conviction has been recorded against them because they have been convicted for the main offence under Section 302, IPC

Kulli and Shripal appellants in criminal Appeal No. 1716 of 1980 have been found guilty of an offence under Section 201, IPC read with Section 149, IPC and have been sentenced to undergo rigorous imprisonment for a period of three years each and to pay a fine of Rs. 100 each and in default of payment of fine to undergo imprisonment for a period of three months.

We have heard Sri J.S. Sengar learned Counsel for the appellants in both the appeals and Sri Anoop Ghosh, Additional Government Advocate for the State.

The prosecution commenced on the basis of first information report purporting to have been orally lodged by Smt. Bhanmati wife of Monohar resident of village Loharan Garhwa, police station Ghazipur at 3.10 p.m. at police station Ghazipur in the district of Fatehpur. The story set up in this F.I.R. which is Exhibit Ka1 is on record was that at about 10 0'' clock in the day on 1391979 she alongwith her sisterinlaw (Deorani) Smt. Laxmaniya and her children Kunni Devi and Shyam aged 6 and 7 years and bhanja Bodhi who used to live with them, was sitting at the Chabutra of her house. Lootey alongwith his brother Bhola and son Harish Chandra and Bhadaiya son of Bhola and Ram Vishal son of Sanwaliya who are resident of the same village and belonged to the informant''s caste i.e. Kevat and live in the neighbourhood of her house arrived there. Harish Chandra and Bhadaiya were armed with axes (Kulhari) while Lootey, Bhola and Ram Vishal had lathis. Lootey and Harish Chandra caught hold of Bodhi and started dragging him. As Bodhi resisted all the accused thrashed him to the ground and then dragged him to the door of their house. She and the aforesaid members of her family raised an alarm and tried to intervene but the assailants threatened them. They assaulted Bodhi with lathis and Kulhari and killed him. The first informant Smt. Bhanmati and other persons including Prasad, Girdhari and Rajaram who arrived at the spot, saw the occurrence from the place in front of the house of Ghasitey. The accused said that the deadbody be thrown in the Yamuna river after severing the head. Some other persons of the village were also attracted to the spot but no body dared to intervene. Accused Shripal and Kulli also arrived there. Lootey accused asked Shripal to bring his bullock and put the dead body in the cart of Gaya Prasad and proceeded towards river Yamuna. Bhanmati ran towards the cart to prevent the assailants from taking away the deadbody out she was pushed with force and the assailants moved away, brandishing their weapons.

The F.I.R. also mentions the motive for this crime. It is stated that at about 10 a.m. the same day there was an exchange of words between Lootey''s mother and Bodhi and Bodhi had accused ''Lootey''s mother of defaming them. In that incident Bodhi was alleged to have given 23 first blows to that lady. It is for this reason that the accused attacked and killed Bodhi. It was stated in the F.I.R. that the accused have taken the deadbody for throwing in Yamuna river and that she has come to the police station running and stumbling and that quick action be taken to prevent the dead body of Bodhi being thrown in the Yamuna river which was being carried by the aforesaid seven persons.

On this information the investigation of the case was taken up by S.I. Salik Ram Tiwari who is said to have recorded the statement of first informant at the police station itself and reached village Loharan Garhwa at 4.30 p.m. He collected samples ''of bloodstained and unstained earth from the passage in front of the house of Shiv Nath and sealed them in separate containers and prepared a recovery memo. One Shiv Sagar is said to have informed him that the accused have taken the deadbody of Bodhi in a bullockcart towards Yamuna river and that if an attempt is made immediately the dead body as well as the accused may be available. The Investigation Officer recorded the statement of Shiv Sagar and immediately started towards Yamuna river alongwith Shiv Sagar and others. On the way he met Suraj Pal who also told him that he had seen the accused going with a dead body in a cart. He proceeded seeing the wheel marks of the cart and arrived at the Guthana Ghat on the bank of river Yamuna. At one place at the ghat he found some earth to have scrapped and about 200 yards west of the ghat he found of lot of blood at one place and also a baniyan smeared with blood. This gave him an impression that the dead body of Bodhi was placed there. He took samples of blood stained and unstained sand from the place, sealed them separately and prepared a memo. He also took into his possession the baniyan and sealed the same and prepared a memo. By the time this was over it became dark and it was not possible to search for the dead body. Therefore, he left constables Ram Singh and Om Prakash at that place with necessary instructions asking them to keep a watch and to make a search in the morning. When the Investigating Officer was returning to the police station one Prithvi Pal met him on the way and told that on the north east of the abadi of village Kunwapar, accused Lootey, Harish Chandra and Bhola had left a bullockcart. He reached that spot and found the bullockcart there. On examining the same with care he noticed blood on the pataili of the front part of the cart. He took the blood stained portion in his possession by getting it out with a saw. The same was kept in a sealed cover and seizure memo was prepared. The siteplan of the spot prepared. Thereafter, he recorded the statements of Prahlad, Ram Adhar, Devi Dayal and Shiv Sagar. On 1491979 he again went to the place of occurrence and prepared a siteplan thereof. Accused Bhola was arrested on 1591979. He recorded his statement and arrived at the police station alongwith various articles connected with the case and the bullockcart aforesaid. The bullocks were given in the supurdagi of one Brahma Din. On 2691979 he received information that accused Lootey, Harish Chandra, Bhadaiya, Ram Vishal, Kulli and Shripal have surrendered in the Court on 2591979 and sent of jail. He recorded their statements. Two other persons, namely, Durga and Prasadi who were prosecuted in this case for the offence under Section 201, IPC and have since been acquitted had also surrendered before the Court and thereafter the Investigating Officer submitted a chargesheet against these nine persons.

At the trial, the prosecution examined Smt. Bhanmati the first informant and her Deorani Laxmaniya as P.Ws 1 and 2. Both of them turned hostile and did not support the prosecution case. PW1 Smt. Bhanmati denied having lodged the first information report and stated that she was not present at her house and was at her father''s house where Laxmaniya informed her of the incident. Laxmaniya PW2 denied having seen the incident and stated that in her presence accused did not take away Bodhi from her house. PW3 Prasad, PW5 Rajaram and PW6 Girdhari''all residents of the same village are alleged to be eyewitnesses of the incident and supported the prosecution story. PW7 Shiv Sagar stated that he saw all the nine accused going alongwith bullockcart towards Yamuna river and that in the evening he accompanied the Investigating Officer to the bank of river Yamuna where at one spot there was a lot of blood and the Investigating Officer had taken samples of blood stained and unstained sand. PW8 is Gaya Prasad whose cart is alleged to have been used in transporting the dead body of Bodhi. He stated that he was not present in the village and had gone to Ghazipur and that it was his mother who informed him that Durga had taken away his cart. PW9 is Rameshwar who is a witness of the alleged recovery of blood stained and unstained earth from a place in front of the house of Shiv NathPW10 is Suraj Pal who claimed to have been the accused going away with a dead body in a bullockcart which was driven by Durga accused. The last witness is PW11 Salik Ram Tiwari who was posted as S.I. at police station Ghazipur and investigated the case.

The accused in their statements under Section 313, Cr.P.C. did not assign any specific cause for their alleged false implication and made bald statements that they have been prosecuted because of ranjish and the witnesses are giving evidence because of police pressure. No evidence was led in defence. It was suggested to some of the P.Ws that Bodhi was a dacoit and has been killed in police encounter.

The learned Sessions Judge did not believe the prosecution evidence in so far as Durga and Prasadi were concerned and acquitted them. The learned Sessions Judge observed that the prosecution has attempted to involve accused Durga by assigning him the role of bringing the cart of Gaya Prasad. He also observed that the evidence of Prasad PW3 implicating Prasadi and Durga accused was unworthy of credit and that the evidenceof Raja Ram PW5 and Girdhari PW6 that all the nine accused lifted the dead body of Bodhi and placed it on the cart was also unworthy of belief. The learned Sessions Judge concluded that the statements of these three witnesses on this aspect of the case suggest that they have made it only with a view to get Durga and Prasadi implicated in the case. As regards appellants Kulli and Shripal who have been convicted for the offence under S. 201, IPC the learned Sessions Judge observed that the prosecution witnesses have consistently deposed that they alongwith theother principal accused carried the dead body of Bodhi on bullockcart and they had lifted it from the place where the deadbody of Bodhi was lying and the cart was driven towards river Yamuna. Regarding the principal accused, namely, Lootey, Bhola, Harish Chandra, Bhadaiya and Ram Vishal, the learned Sessions Judge observed that the evidence of PW3 Prasad, PW5 Raja Ram and PW6 Girdhari was free from any contradiction regarding assault made by them on Bodhi and carrying away the dead body towards river Yamuna. The learned Sessions Judge believed their evidence which, in his opinion, was supported by the circumstantial evidence like the recovery of blood stained earth from the spot and blood stained sand and a baniyan from the bank of river Yamuna and the recovery of the bullockcart. He therefore, found seven appellants guilty of the various offences, as stated above and convicted and sentenced them accordingly.

Learned Counsel for the appellants Sri J.S. Sengar severely criticised the judgment under appeal and contended that the prosecution suffered from various defects and it was not possible to place implicit reliance on the evidence led at the trial and that the accused deserve acquittal. The learned Additional Government Advocate on the other hand, supported the findings arrived at by the learned Sessions Judge.

The first point that was urged was that the alleged motive for the offence was not established. A reading of the F.I.R. indicates that the allegation was that Lootey''s mother had accused Bodhi of having some illicit relationship with Bhanmati and he had accused Lootey''s mother and her family of wishing ill on Manohar (his mama) and that the allegation was made so that he may go away from the village and the agricultural activities of his Mama may come to a stand still. It has come in evidence that Bodhi belonged to another village and was residing at the house of Ram Manohar husband of Bhanmati whom he called Mama. Bhanmati has denied any relationship with Bodhi and stated that he used to call her husband Mama. As stated above, Bhanmati the maker of the FIR did not support the prosecution story. She even denied the making of the FIR she was not effectively cross examined. Similar is the position of PW2 Laxmaniya who is the wife of Ram Manohar''s brother Ram Sipahi. At the time of the incident Bhanmati''s husband Ram Manohar is said to have been in jail in connection with a case of dacoity while Ram Sipahi had already been killed in police encounter. It has come in evidence that subsequently Ram Manohar too was killed in encounter. Bhanmati & Laxmaniya have turned hostile and they have not been crossexamined even about the alleged motive. There is thus, complete absence of evidence of motive for the crime.

Learned Counsel for the appellants also pointed out that the F.I.R. Exhibit Ka1 purporting to have been already by Smt. Bhanmati contains a very detailed version of the incident and it was improbable that in the circumstances of the case such a detailed F.I.R. could have been lodged by an illiterate woman like Bhanmati. This contention has force for the reasons to be stated hereafter and makes the very inception of investigation suspicious. The report purports to have been lodged at 15.10 p.m. i.e. about two hours after the occurrence. It mentions that there is need to hurry up to prevent the dead body being thrown in Yamuna river. It states that she has reached the police station running and stumbling. In such circumstances such a detailed F.I.R. was unnatural. Then the F.I.R. showed the urgency of the matter and the Investigating Officer who was present at the police station itself should have realised the urgency of the situation because in a case of murder the dead body of the deceased is the most important piece of evidence which if lost can seriously hamper the investigation and damage the prosecution case. Therefore, as soon as Bhanmati came to the police station and told that her relative Bodhi had been killed and his dead body is being taken away for throwing in the river Yamuna he should have immediately without loss of a moment rushed to the spot to prevent the dead body from being thrown in the river and if thrown then from being lost. Nothing of the sort was done by the Investigating Officer PW11 Salik Ram Tiwari. On the other hand, he allegedly indulged in the formality of recording the statement of Bhanmati at the police station itself. He explains that he did so because no bus for the place of occurrence was available. This explanation is not worth credence as the police could have certainly arranged a transport for reaching the place of occurrence or the place at the bank of river Yamuna. Then, after reaching the place of occurrence and seeing blood outside the house of Shiv Nath he does not immediately proceed towards river Yamuna. Here again he wastes his time in taking the samples which could have been done later on and some body could have been instructed to protect the spot from being interfered. According to evidence of Salik Ram Tiwari the proceeded towards Yamuna after he had taken the samples and keeping them insealed covers and preparing the recovery memo. He does not find any trial of blood on the way although Shiv Sagar PW7 says that blood was tripping from the cart. Then on reaching the ghat he prepared the seizure memo in respect of two samples of sand one of which is alleged to be stained with blood and then says that by that time it had become dark and it was not possible to search the dead body of Bodhi. He deputed constables Ram Singh and Om Prakash to remain there and to search for the dead body in the morning. Thereafter what happened is not disclosed from the evidence at the trial. The Constables Ram Singh and Om Prakash have not been examined nor has the Investigating Officer stated what efforts he made to search for the dead body of Bodhi that was suspected to have been thrown in the river Yamuna. The incident look place inside the abadi of the village and as alleged by P.Ws. a large number of persons had collected at the spot. None of them is alleged to have made any serious attempt to intervene in the matter, to prevent the dead body from being disposed, of, to see where the accused took the dead body and to search for it and none of them is shown to have accompanied Bhanmati to the police station. It is highly unnatural and rather impossible that Bhanmati should have gone to the police station all alone and lodged this detailed report. The aforesaid circumstances make the recording of the F.I.R. is a highly suspicious activity and the time at which the F.I.R. is said to have been recorded and the other acts of investigation purport to have been done also become highly suspicious.

The samples of blood stained earth and sand and piece of the cart and the baniyan were not sent for chemical examination to find if they were stained with human blood. This was necessary particularly when none of the persons saw the dead body of Bodhi being consigned to the river. It is said that the witnesses may lie but the circumstances do not lie. Therefore, the chemical examination of the aforesaid articles would have rendered strong corroboration to the prosecution case and the Investigating officer has denied this opportunity to the prosecution by not getting the aforesaid articles examined.

A baniyan which was material Exhibit3 at the trial and was found at the bank of river Yamuna was suspected to belong to Bodhi. Not only that it was not got chemically examined no witness produced at the trial was asked to say that was the baniyan that Bodhi was wearing at the time of the incident. Neither Bhanmati nor Laxmaniya were questioned about the baniyan. Similarly, Prasad PW3, Raja Ram PW5 and Girdhari PW6 who are the eyewitnesses of incident were not questioned about the baniyan and, therefore, the baniyan too is not established to belong to Bodhi and to have been worn when he was allegedly done to death. Then, the Investigating Officer has not prepared and site plan of the place from where the baniyan and the blood stained sand is alleged to have been taken into possession.

As regards the bullockcart, the prosecution case was that the same belonged to Gay''a Prasad who has been examined as PW8. He stated that at the time of the incident he was not in the village and had gone to Ghazipur and that Durga had taken his bullockcart but did not Know the purpose for which it was taken. He then stated that his mother did not tell him why the cart was taken. This witness, therefore, did not support the prosecution case and should have been treated as hostile and crossexamined but this was not done and even the Court did not put any question to him. He was not even asked to say if Durga who had taken the cart was the Durga accused in the case. He was not questioned whether his cart was received back intact and if not what was missing from it and how did he get it back. According to Investigating Officer the cart that he found near village kunwapar was taken to the police station and piece of wood that appeared to be stained with blood had been cut out of it. Thus, form the record it is clear that no attempt whatsoever was made by the prosecution to establish the ownership of the cart at the trial and this part of the prosecution story that the cart belonged to Gaya Prasad has not been established.

It is in the light of the aforesaid deficiencies that the direct evidence of P.Ws. Prasad, Raja Ram and Girdhari who are alleged to be the eyewitnesses of the occurrence has to be seen. As already stated, the trial Court has disbelieved the witnesses in so far as Prasadi and Durga were concerned.

It may be mentioned here that the record of the trial shows that after PWs1 and 2 Smt. Bhanmati and Laxmaniya had been examined by the Court there was no other witnesses present for examination. The learned Sessions Judge, therefore, enquired about the witnesses and was informed by constable Gorey Lal of Police Station Ghazipur that he had brought to the Court nine witnesses who had been summoned in this case and that he had made them sit in the verandah out side the Court room and that white PWs1 and 2 were being examined the Station Officer of P.S. Ghazipur came and took away the rest of the witnesses with him about 1015 minutes ago. The learned Sessions Judge appears to have taken note of the absence of the witnesses and he recorded the statement of the said constable Gorey Lal to the aforesaid effect which finds place as paper No. 13 on the record of me trial. Then he also made a note to this effect in the proceeding of the day i.e. 2371980 and the order sheet states that he waited for the witnesses from 12 O''clock to 12.30 and it was thereafter that one of the witnesses, namely, Prasad PW3 turned up and his statement was recorded. Placing a strong reliance on the aforesaid conduct of the Investigating Officer and the witnesses, Sri Sengar contended that the three witnesses have given evidence under police pressure and that the Station Officer, Ghazipur threatened the witnesses after the two ladies had turned hostile and, therefore, these witnesses cannot be believed. It is strange that although the learned Sessions Judge was so agitated about the absence of the witnesses that he chose to enquire into the matter and recorded the statement of a police pairokar but subsequently and particularly while preparing the judgment he has absolutely ignored this circumstance although the defense case as shown by the crossexamination of Prasad PW3 was that he and the other witnesses have been threatened.

Prasad PW3 claims to have seen the occurrence. According to him Bhadaiya and Harish Chandra were armed with kulhari while Lootey, Ram Vishal and Bhola with lathis and all these persons assaulted Bodhi who died on the spot. He admitted having come to the Court and waiting in the verandah. According to him Bodhi was living with Manphar for more than ten years but Bhanmati stated that he was there from about a month. He was prosecuted for theft as well as dacoity. According to him Ram Sipahi the husband of Laxmaniya P W2 was taken away by the police from the village and killed in an encounter. He stated that in the cart there was no darrichadar etc.

PW5 Raja Ram says that only Harish Chandra had an axe and that Lootey, Bhola, Bhadaiya and Ram Vishal had lathis, thus, there is material contradiction in the evidence of PW3 and PW5 about the possession of arms. He also says that Bodhi was living in this village for a very long time. He stated that when he reached the spot, he saw all the nine accused there while Prasad had stated that after the five accused assaulted Bodhi and the later was deadLoptey accused went and called Shripal, Kulli, Prasadi and Durga and brought a bullockcart. Thus, these two witnesses contradict each other. If as stated by Raja Ram all the nine accused were there the question of Lootey calling Shripal, Kulli, Prasadi and Durga as stated by PW3 Prasad did not arise. Raja Ram PW5 stated that in the cart of dhoti has been spread over which the dead body of Bodhi was laid and half portion of the dhoti was used to cover the dead body. Thus, on this point also they contradict each other. Girdhari PW6 stated that Harish Chandra and Bhadaiya were armed with axes and that in the cart there was neither a dhoti nor a chadar. He stated that 2025 persons had gathered at the spot but no one intervened. Shiv Sagar PW7 claimed that he saw the bullockcart and the accused going towards Yamuna and that blood was dripping from the cart. According to him a trail of blood was visible on the way when he accompanied the Investigating Officer. The later has denied having seen any such trail of blood. One Devi Dayal appeared as a witness of Exhibit Ka4 the memo of the alleged recovery of blood stained earth from the place where Bodhi has been alleged to have been killed. Rameshwar P W9 who is another witness of the said recovery denies the presence of Devi Dayal at the spot and the statement of Shiv Sagar PW7 also shows that Devi Dayal met the Investigating Officer on the way while the later was going to the bank of river Yamuna. Thus, the evidence of the three eyewitnesses suffer from material contradictions and is not consistent as assumed by the learned Sessions Judge. Further, mere consistency in the statement of some witnesses on a certain point cannot be a ground for accepting them as truthful. In this case even the commission of the offence was not established beyond reasonable doubt because neither the dead body was recovered nor any serious efforts was made to recover it and no scientific and independent evidence was procured to establish that what was recovered from two places was human blood and of one and the same person. The conduct of the villagers and of the three witnesses is also unnatural inasmuch as they take no interest in the matter apart from being mere spectators. There were strong reasons to assume that the witnesses had been threatened after PWs1 and 2 turned hostile. The learned Sessions Judge has disbelieved the witnesses about the implication of Durga and Prasadi and the case of Kulli and Shripal is no different than of Durga and Prasadi. The mere fact that their names were mentioned in the F.I.R. cannot turn the scales against the accused particularly when, as found above, the making of the F.I.R. by Bhanmati is not established.

The prosecution has to prove its case against the accused beyond reasonable doubt. Here is a case in which the prosecution story is full of doubts and deficiencies. The investigation was perfunctory and the witnesses were not examined by the prosecution with due care with the result that several of the important links have not been established. In our view, therefore, the charge against the accused were not established so as to bring the guilt home beyond reasonable doubt and the conviction recorded against them is not legally sustainable.

The appeals are, therefore, allowed and setting aside the conviction and sentence recorded by the learned Sessions Judge the accused appellants are acquitted of the offences referred to above.

Nonbail able warrants were issued against the appellants, the execution of which was. stayed by us. In case the accused have been arrested they shall be released forthwith. If they continued to be on bail as was granted by this Court earlier they need not surrender. Their bail bonds and personal bonds shall stand discharged. Appeal allowed.