Dhani Ram and Others vs State of U.P.

Present appeal stems from Session Trial No. 308 of 1979 whereby I Vth Additional Sessions Judge, Meerut entered the verdict of conviction of the Appellants namely Dhani Ram, Dharam Pal, Mahendra and Vijendra u/s 302 read with Section 34, I.P.C. and each of them have been visited with the penalties of imprisonment for life vide judgment and order dated 23.2.1981 and 7.5.1981 respectively.

As a prelude, it is alleged in the F.I.R. that the accused persons were inimical to the complainant and the enmity was triggered by the murder of Gaje Singh brother of Dharam Pal accused in which Charan Singh and others had been arrayed as accused but the trial of the case culminated in acquittal of Charan Singh and others. As a result of acquittal, the accused persons were fuming with acerbity towards the family of the deceased. It is further stated that Badan Pal deceased who happened to be the nephew of Charan Singh, had been staying at tube well those days preparing for ensuing High School Examination as his house had no electricity connection in the village and other witnesses namely, Gaj Pal P.W. 2 and one Nepal Singh used to join him at the tubewell in the night. The aforesaid tubewell, it is further unfolded, is situated in the jungle of village Sarawa. The abbreviated version as unfolded in the F.I.R. scribed by Devendra Singh at the dictation of Charan Singh complainant at P. S. Kharkhauda district Meerut is that on 26.3.1979, the aforesaid witnesses namely, Gaj Pal P.W. 2 with Nepal Singh accompanying him left for tubewell in the evening carrying with them the meal for Badan Pal and on way to tubewell, they were joined by Tedha P.W. 3 who was also on way to his field situated adjoining the tubewell for watering the field. It is further alleged that at about 7.30 p.m. when they were approaching the tubewell and were very near to it, they heard shot being fired upon which they accelerated their paces and called out as to who was there upon which the accused persons aforesaid emerged from the tubewell room who were armed variously namely accused Dhani Ram and Dharam Pal had country made pistol in their hands while Vijendra accused and Mahendra were armed with ballam and lathi respectively. On being confronted the accused persons scampered away towards north. It is further stated that all the three witnesses gave hot chase to the accused persons but they succeeded in making good their escape. On coming back to the room of the tubewell, the witnesses found Badan Pal lying in pool of blood and had succumbed to his injuries. It is further mentioned that they recognize the accused persons in the light shed by the bulb fixed at the top of the tubewell and also in the torch light which they carried in their hands. The report of the occurrence, it would appear, was scribed by one Devendra Pal at the dictation of Charan Singh P.W. 1 which was lodged at the police station Kharkhauda at 11.30 a.m. the same day. The police station, it would further appear, lies at a distance of 5, 1/2 miles from the place of occurrence.

In this matter, the investigation was initially entrusted to S.I. Rajveer Singh who commenced investigation and to begin with, he left for the place of occurrence alongwith constable Ramesh Chand P.W. 9 and Gopi Chand. The Investigating Officer completed the formalities of preparing panchayatnama, photo lash and challan lash and also drew sketch map of the spot and collected blood stained and simple earth. He also recovered two Tiklis of cartridge from the place of occurrence which were sealed on the spot. Thereafter, the dead body was sealed and dispatched for post mortem examination escorted by constables Ramesh Chand and Gopi Chand. He conducted investigation upto 29.3.1979 and thereafter the investigation came to be entrusted to S.I., V. P. Saxena (P.W. 5) by the order of Circle Officer Police. By that time, accused persons continued to escape the police dragnet. On 11.4.1979, the Investigating Officer came to know that the accused persons excepting Dhani Ram had surrendered in the Court and had been sent to the person. The accused Dhani Ram, who was a constable in Delhi police was arrested on 19.4.1979 at Meerut. The Investigating Officer also went to Delhi where accused Dhani Ram was constable in order to rummage through the papers. He finally submitted the charge-sheet in the Court on 28.5.1979.

The post mortem on the dead body was conducted on 8.5.1979 by Dr. M. C. Varshney and he found one gun shot wound of entry eight in number in an area of 6 cm. x 5 cm. on the right side of the neck just above the clavicle and lower part of neck. The dimension of wound was stated to be ranging from 1 cm. x 0.15 cm. to 0.5 cm. x 0.5 cm. x bone deep. The doctor found no blackening or scorching around the wound. The Doctor opined that the causative factor of death of Badan Pal was shock and haemorrhage resulting from the ante mortem injury. The doctor also opined that death occurred about one day before the post mortem examination and that it was possibly caused at 7.30 p.m. on 26.3.1979.

After submission of charge-sheet, the case was committed to the Court of Sessions and the Sessions Judge framed charges u/s 302 read with Section 34, I.P.C.

In order to substantiate its case, the prosecution examined P.W. 1 Charan Singh, P.W. 2 Gaj Pal and P.W. 3 Tedha, P.W. 4 H. C. Devi Ram, P.W. 6 Dr. M. C. Varshney, P.W. 7 S.I., Raj Veer Singh P.W. 9 Constable Ramesh Chandra, P.W. 10 S.I. Bhawabi Das Chopra and P.W. 11 Constable Rishi Pal out of which P.W. 1 Charan Singh P.W. 2 Gajpal and P.W. 3 Tedha were examined as ocular witnesses of the occurrence.

The accused persons in their statements u/s 313, Cr. P.C. abjured the guilt and denied the incriminating evidence appearing against them. They pleaded that they have been implicated in a false case and they claimed to be innocent.

The trial court, on appraisal of the entire evidence on record, gave verdict of conviction against the Appellants u/s 302 read with Section 34, I.P.C.

Feeling dissatisfied with the judgment of the trial court, the above appeal has been filed in this Court.

The learned Counsel appearing for the Appellant Sri Raghuraj Kishore made a frontal attack on the finding of the trial court quintessentially arguing that the evidence adduced in the case is not sufficient and convincing to warrant the conviction of the Appellants. He also argued that the motive attributed to the Appellants was not so proximate and strong for commission of the offence ; that the witnesses examined as material witnesses were in fact interested, partisan and chance witnesses and in fact the witnesses have given a concocted version which casts severe doubts about truthfulness of the prosecution case. It is further argued that there was no proper source of light in which the assailants could be recognized and that they have been nominated as the assailants on account of raging enmity. Lastly, it is argued, all the Appellants could not be held liable for conviction u/s 302, I.P.C. with the aid of Section 34, I.P.C. It is further argued that there is no reliable evidence brought on record to prove that the Appellants also shared common intention to murder the deceased and in the absence of such evidence, the Appellants could not be convicted for offence punishable u/s 302 read with Section 34, I.P.C.

P.W. 1 Charan Singh, P.W. 2 Gaj Pal and P.W. 3 Tedha are witnesses of fact. All the three witnesses have categorically stated that Badan Pal was done to death by the accused persons in the tubewell room situated in the jungle of village Sarawan at about 7.30 p.m. They have explained their presence at the place of occurrence and stated that Charan Singh and Gaj Pal used to sleep at the tubewell alongwith Badan Pal who was there preparing for ensuing High School examination attended with further deposition that Badan Pal had been staying at the tubewell as the house in the village had no electric supply.

P.W. 1 Charan Singh who happened to be the uncle of Badan Pal deceased and also the informant in the case, has specifically stated that he knew all the four accused persons since before this occurrence attended with further deposition that about 9 years ago Gaje Singh, real brother of accused Dharam Pal had been murdered and in that case, he alongwith others were nominated as accused. He also stated that Hukum Singh, real brother of deceased Badan Pal was also arrayed as accused alongwith Charan Singh. The trial that commenced, proceeds the deposition, ended up in acquittal of all the accused persons and ever since then, the accused were prejudiced and were inimical to them.

P.W. 2 Gaj Pal deposed that at the time of his murder, the deceased Badan Pal was a student of High School and he was preparing for examination for which he had been staying in the room of the tubewell as the tubewell remained illuminated with electric light. He also deposed that he had recognized the accused persons who after committing murder had come out of the room of the tubewell for escaping. Dwelling on motive, he deposed that Gaje Singh brother of accused Dharam Pal had been murdered about nine years ago and in that murder case, accused Charan Singh and Hukum Singh alongwith others were tried but the trial ended up in acquittal of all the accused persons. On the day of occurrence, he deposed, he alongwith his cousin Nepal started from the village at about 7 p.m. and they were carrying meal for Badan Pal. On way, Tedha P.W. 3 came across them and joined them as he was on way to his field for irrigating the same. He also deposed that when they reached the tubewell they saw the assailants and recognized them in the electric light as also in the light of the torch which one of them was carrying in hand. This witness has supported the prosecution case in all material details.

P.W. 3, Tedha also corroborated the testimony of P.W. 2 Gaj Pal. The witness claimed he was also ancular brother (cousin) of Charan Singh. He is also an ocular witness of the occurrence. He deposed that he accompanied Gaj Pal and Nepal Singh whom he met on way and joined them as he was also on way to his field for irrigating the same from the tubewell for which schedule had already been fixed. He also deposed that when all of them approached near the tubewell they heard reports of gun fire and immediately thereafter, they saw accused persons Dharam Pal, Dhani Ram and Vijendra Singh coming out of the room of tubewell. All the accused persons were related to each other accused Dhani Ram being the brother-in-law of the remaining three accused persons. He also deposed that out of the accused persons, Dharam Pal and Dhani Ram were armed with pistols while Bijendra and Mahendra had ballam and lathi respectively in their hands.

P.W. 4 H. C. Devi Ram who was posted as head Moharrir at P. S. Kharkhauda on 26.3.1979, proved the Chik F.I.R. (Exhibit Ka-2) which he had prepared.

P.W. 5 S. I., V. P. Saxena deposed that earlier S.I., Rajveer Singh was the Investigating Officer and subsequently the investigation was entrusted to the pursuant to the orders of the Circle Officer Police. He deposed to have commenced the investigation on 9.4.79. On 11.9.1979, he received information from the Constable pairokar that the accused persons excepting Dhani Ram had surrendered in the Court. He also deposed that he arrested Dhani Ram on 19.4.1979 from Meerut. He also deposed that on 16.5.1979 he went to Delhi on coming to know that one of the accused Dhani Ram was a police constable in Delhi police, in order to rummage through the records and there, he took statements of Jodh Singh, S.I., Bhawani Das Chopra, S.I. and Constable Rishi Pal Singh and H. C. Raj Singh. He also deposed that he again went to Delhi on 23.5.1979 on which date S.I., Jodh Singh, Line Officer produced papers pertaining to duties and thereafter, he asked Jodh Singh to seal the papers relating to duties from 20.3.79 to 4.4.79 and from 4.4.79 to 21.4.79.

P.W. 6 is Dr. M. C. Varshney. He deposed that on 27.3.79, he conducted post mortem examination of the dead body. He also deposed that the causative factor of death was shock and haemorrhage and that from examination of the deceased, he opined that the deceased succumbed to injuries one day before, i.e., 26.3.79 at about 7.30 p.m.

P.W. 7 H. C. Raj Singh deposed that he was posted as Head Constable in North District Police Lines and on and around the date, his duties usually commenced between 3 or 4 p.m. to 12 midnight or onwards. On the relevant date, he deposed, his duties had commenced at 4.45 p.m. and he was relieved of duties at 12 night which fact would find mention in report No. 74. He also deposed that for the period between 24.3.79 to 27.3.79, roll call was conducted under the supervision of Bhawani Das Chopra and Chhitha Munshi namely Rishi Pal Singh furnished details of roll call to me. He also deposed that the personnel who was assigned duties as night reserve, are usually let off duties so that they may come back to duties after having meal. He also deposed that these personnel are not required to be present at the time of roll call. As regards to 26.3.79, he deposed that accused Dhani Ram is displayed to be on night reserve duty upto 12 night.

P.W. 8 is S.I., Rajvir Singh who was initially the Investigating Officer of the case and had prepared inquest report, photo lash, challan lash which are exhibits 8 to 10. He deposed that he also prepared recovery memo (Ex. Ka-13). He also prepared recovery memo of tikli of cartridge from the place of occurrence (Ex. Ka-14). He also prepared recovery memo of Torch (Ex. Ka-15) and prepared the sketch map (Ex. Ka-16).

P.W. 9 is Constable Ramesh Chandra. He deposed that he went to place of occurrence alongwith S.I., Rajvir Singh and thereafter he accompanied the dead body for post mortem examination.

P.W. 10, Bhawani Das Chopra is Sub-Inspector belonging to Delhi police. He deposed that on 26.3.1979, he was posted as Duty Officer at North District Police Lines Delhi. He further deposed that Constable Dhani Ram was shown on duty from 8 p.m. to 8 a.m. as night reserve on 24.3.79 and again on 25.3.79 and 26.3.79, he is shown to have been present on duty from 8 p.m. to 8 a.m. next day.

P.W. 11 is Constable Rishi Pal. He was posted as Chhitha Munshi in North District Police Line, Delhi. He deposed that Dhani Ram was posted as constable in Delhi Police Lines North District. On 26.3.79, Dhani Ram was present on duty upto 5 p.m. and again he was on duty from 8 p.m. to 8 a.m. next morning.

The first submission advanced across the bar by learned Counsel for the Appellants pivots on motive arguing that the motive alleged is too feeble to precipitate the accused persons into commission of offence. It may be recalled here that it was alleged that one Gaje Singh brother of Dharam Pal one of the accused persons had been murdered nine years back and thus the argument built is that it could hardly be a motive provoking the accused into commission of the crime. It is further argued that the Appellants could hardly be inclined to commit murder of deceased who was a boy of tender age. The counsel for the Appellant suggested that it could be a case of mistaken identity. It is further suggested that the deceased might also have been mistaken for some other person and unknown assailants mistook him to be someone else.

We have bestowed our anxious considerations to the submission made across the bar. We have also traversed upon the testimonies of the witnesses and we find that there is nothing improbable in their testimonies to generate suspicion about the veracity and the learned Counsel could not elicit any infirmity to eschew from consideration the motive alleged to the Appellants. If the lack of motive as pleaded by the Appellant is a factor, at the same time, it cannot be lost sight of that there is no reason as to why the witnesses who are proximate relations of the deceased would falsely embroll the accused. If the incident in question as projected by the prosecution is to be accepted, the presence or absence of a motive or strength of the said motive by itself will also not render the prosecution case weak. In connection with the contention at issue, reference be made to State of Himachal Pradesh Vs. Jeet Singh, in which the Apex Court observed as under:

No doubt, it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed, if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.

Thus, in the light of the above decision and also regard being had to discussion made above, we are of the view that there is nothing improbable in Appellants nurturing vengeance against the deceased and his family members and in wanting to settle scores with them after verdict of acquittal in the case of murder of Gaje Singh, brother of Dharam Pal accused.

Coming to next submission, it is argued by learned Counsel for the Appellants that prosecution had examined P.W. 1 Charan Singh, P.W. 2 Gaj Pal and P.W. 3 Tedha and out of these three persons, P.W. 1 Charan Singh is not an ocular witness and he only lodged the report on the information given by the other witnesses. The other two ocular witnesses, proceeds the arguments, are highly interested and inimical witnesses and they are also chance witness. We have given our anxious consideration to the submissions and evidence. However, upon careful consideration, we must say we do not find it loaded with any substance. In connection with the above submission, we feel called to say that the Apex Court in catena of decisions has held that relationship is not a factor to impeach the credibility of a witness. It is more often than not that a relation would not exculpate the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to get at truth whether it is cogent and credible. The relevant decision on the point is Ashok Kumar Pandey Vs. State of Delhi, the Apex Court held as under:

It is well-settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or both, if otherwise the same is found to be credible.

The next submission advanced across the bar is that the witnesses are chance witnesses and they should not be relied upon. In connection with this submission, we have again looked back into the testimonies of the witnesses and we should say that it crystallizes from their testimonies that they have explained their presence ; they have given their explanation of being present at the place of occurrence. Further, it would also transpire that the place of occurrence is proved by the prosecution by overwhelming evidence on record and the same is also not challenged. We also find that the time of occurrence is also proved by the prosecution. It has come in evidence that the deceased had been staying at the tubewell room preparing for High School examination. P.W. 2 Gaj Pal deposed that he was carrying meal for Badan Pal deceased and P.W. 3 Tedha joined them in the way as he was also on way to tubewell for irrigating his field. The testimony of P.W. 3 Tedha supports the other witnesses in all relevant details and we do not find any reason to disbelieve the testimonies of ocular witnesses. It is also worth noticing that according to post mortem report the stomach of the deceased was empty and the explanation of witnesses that they were carrying meal for the deceased commends us for acceptance.

The next submission pivots on insufficiency of light and according to submission whatever light was available was not sufficient in which assailants could be recognized. It is submitted that occurrence being of night and the murder took place inside a room and there was no such light in which assailants could be seen. Moreover, according to further submission, the witnesses had seen the accused running away from the place of occurrence and they had no opportunity to see the faces of the miscreants. The source of light mentioned was tube-light outside the tubewell and a bulb inside the room where the deceased was assaulted. It is clearly mentioned that P.W. 2 Gaj Pal was carrying a torch and the Investigating Officer had also examined the same and prepared its recovery memo which is Ex. Ka-15. There is no denying of the fact that the accused and the witnesses were known to each other. In the light of above discussion, we cannot accord countenance to the submission that the light being shed from the tube-light at the tubewell was not sufficient capable of recognizing the assailants by the Appellants.

Now we switch over to next submission and it is that according to prosecution case, four persons are alleged to have participated in the crime. Two of them were alleged to be armed with pistols and Mahendra Singh and Bijendra Singh were said to be armed with lathi and ballam respectively while the deceased had received only one fire arm injury and all the accused did not assault the deceased. In vindication of his submission, the learned Counsel placed credence on State of U.P. v. Rohan Singh 1996 ALJ 1178 and Chottu v. State . Before coming to grips with the submission aforesaid, we must say that the decisions relied upon by the learned Counsel for the Appellant are of no avail in the facts and circumstances of the present case.

We are afraid, we do not find the submission loaded with any substance inasmuch as it is settled position in law that Section 14 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the ejectment of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises u/s 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment ; but it must necessarily be before the commission of the crime. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself.

As a result of foregoing discussion, we may sum up that on reappraisal and scrutiny of the evidence on record, we find no particular reason as to why the ocular witnesses should falsely depose against the Appellant''s. We also find it difficult that the relatives of the deceased would exculpate the real assailants and falsely implicate other persons inasmuch as it is well-settled that if the witnesses are related to the deceased, their evidence has to be accepted if found to be reliable and beliebeable because they would inter alia interested in ensuring that real culprits are punished. The trial court has rightly held that there was a motive for the accused persons to commit murder of Badan Pal. The evidence of ocular witnesses namely, P.W. 1, P. Ws. 2 and 3 have been found to be satisfactory, reliable, consistent and credible by the trial court. Both the witnesses were cross-examined at prolix length by the defence but nothing tangible could be elicited from their evidence to create any show of doubt that they were not truthful witnesses. In our considered view, the court below has properly and rightly appreciated the evidence on record and there is no infirmity or perversity in the finding recorded by the court below to interfere with the otherwise well reasoned judgments.

At this stage, it has been brought to our notice that the Appellant Dhani Ram expired in the course of pendency of appeal in this Court, i.e., on 13.2.1988 vide report submitted by the C.J.M., Ghaziabad. Therefore, the appeal insofar as Appellant Dhani Ram is concerned, shall stand abated.

Insofar as, Appellants Dharam Pal, Mahendra Singh and Vijendra Singh are concerned, the criminal appeal being devoid of merits, is accordingly dismissed and the judgment and order rendered by the trial court in Session Trial No. 308 of 1979 are affirmed. The Appellants are on bail. Their bail bonds shall stand cancelled. The Appellants shall surrender forthwith. The C.J.M., Meerut is directed to take them into custody for serving out the sentences as imposed upon them by the trial court.

Office is directed to communicate this order within fifteen days for necessary compliance.