Dhani Ram vs State

N.N. Sharma, J.—This appeal is directed against order of Sri R.K. Saxena, learned II Additional Sessions Judge Shahjahanpur dated 29-9-1977 in Sessions Trial No. 6 of 1977 by which the Appellant was convicted u/s 302 and 323/34 of the Indian Penal Code; he was sentenced to imprisonment for life u/s 302, IPC, only.

The prosecution story briefly stated is that the house of Khimma deceased opened towards east; a lane running north-south intervened in between his house and house of informant Chhotey, PW 1, whose hut was situated towards South-East of the house of Khimma. This hut adjoins hut of Shambhu towards east. In front of their house lay an open courtyard. Chhotey injured and Ohani Ram, Appellant are co-villagers, residents of Barigaon, police station Sehra Mau, district Shahjahanpur. Dhaniram, Appellant aged about 20 years is a carpenter. The village is predominantely inhabited by Pathan6. Occurrence took place at dead of night in between 20/21-10-1976 while Chhotey and his family members were sleeping in their hut and a lamp was burning there ; informant was awakened by the sound of intrusion and accosted them; one miscreant reached his cot and threatened him with dire consequences at pistol point; he held the barrel of the pistol and a scuffle ensued; informant was dragged outside his hut; the stranger associate of Appellant dealt a lathi blow on informant; the out cry of informant and hue and cry of his family members attracted to the scene of occurrence Khimma victim and his son Mewa Ram, PW 2 ; while running away from the scene of occurrence Appellant fired a shot on Khimma who fell down dead in torch light flashed by Mewa Ram and Daya Ram and light of lamp ; Appellant was recognized although his associate could not be identified by witnesses Shambhu, Daya Ram, etc.; miscreants managed to escape towards north east.

Chhotey dictated report Ext. Ka 1 about the occurrence to Sant Ram and made it over at police station Sehra Mau on 21-10-1976 at 6.15 A.M. On the basis of this report FIR Ext. Ka. 3 was drawn by head-constable Janki Singh who registered a case in general diary vide Ext. Ka. 4; writing of head constable was proved by Investigator Sri Ramji Lal, PW 4, who took up investigation forthwith.

Dead-body of Khimma was found inside his courtyard at place-B shown in the site plan Ext. Ka 6 ; inquest memo, diagram, etc. Exts. Ka 5 to ka 7 were drawn and dead body was sent in sealed condition to mortuary Shahjahanpur through constable Daya Ram vide Ext. Ka 14.

Dr. S.C. Vaish, the then Medical Officer District Jail Shahjahanpur held autopsy on the dead body of deceased Khimma on 22-10-1976 at 10 A.M. He detected ante mortem multiple wounds fifty in number in an area of 26x21 cm. on the right side lower and outer front of cheek, upper part of the neck and upper and outer half part of the right side of chest of victim. Wound is charred margined. No scorching and no tattooing.

The death was due to shock and haemorrhage vide post mortem report Ext. Ka. 13 tendered in evidence by prosecution. According to the post mortem report time of death of victim was about 1-1/2 day at the time of post mortem examination.

Chhotey, PW 1, was examined in Sehra Mau dispensary on 21-10-1976 an 8.15 a.m. by Dr. A.S. Tripathi, PW 3, who detected one lacerated wound on his scalp region 4 cm. X 1/2 cm. X 1/4 cm. vide injury report Ext. Ka. 2. Dr. Tripathi opined that the injury was simple in nature caused by some blunt weapon. Duration of injury was not given by the doctor in his injury report Ext. Ka. 2 or in his deposition.

On completion of investigation the Appellant was sent up to stand his trial.

In his statement Appellant denied to have been author of the injuries sustained by Chhotey PW 1 and Khimma deceased. He further stated that on account of dispute with his Muslim co-villagers about the courtyard in front of his house, he had been involved at their instance.

Prosecution examined Chhoty, PW 1 and Mewa Ram, PW 2, who supported the prosecution version.

Gajraj Singh, DW 1, was examined in defence to corroborate the dispute about the courtyard in front of the house of Appellant. That dispute was amongst the father of Appellant and the other Muslim inhabitants of the locality about the courtyard and some trees standing thereon ; Gajraj Singh further testified about the status of Appellant and alleged that there was a dacoity at the house of Khimma on that night; he also reached there; Appellant was not being nominated as a culprit at that time. Abdul Rahim Khan, Irshad Ali Khan and Musherraf Khan were leaders of Muslim Party.

Learned Sessions Judge believed the P Ws and recorded the conviction and sentence.

We have heard learned Counsel for the parties and perused the record.

The appeal is allowed for the following reasons:

(1) The scribe of the written report Ext. Ka. 1 has not been examined in this case. Chhotey, informant who claimed to have dictated this report has simply thumb marked the same. Chhotey conceded that Sant Ram the scribe of this report was sent for. Shambhu went to call Sant Ram who resided at a distance of three miles from his village. He further conceded that Mewaram, PW 2, and other co-villagers were well educated; he could not give any reason for getting the report scribed form Sant Ram. Sant Ram has been withheld in this case and has not been examined to face the cross examination. Head-constable Janki Singh who scribed the FIR Ext. Ka. 3 and G.D. entry Ext. Ka. 4 was not examined. Thus FIR and G.D. entry were not formally proved by their scribe. Had these witnesses been examined they could have been cross-examined about the alleged false incrimination of the Appellant in this crime at the instance of Abdul Rahim Khan, Irshad Ali Khan etc. wbo attested the inquest memo Ext. Ka. 5, as was the defence.

In Debendra Chandra Sarkar and Others Vs. Emperor, it was pointed out that non-production of such witnesses who prepared the FIR tells heavily on prosecution as in their absence it was not possible to ascertain what exactly was the version of the informant at the time when the Ejahar was first put down in writing or whether the writing represented a genuine version given by the informant himself or was coloured by interference from other sources. Under the circumstances of the present case we have to respectfully endorse the same.

(2) Learned Counsel for the State pointed put that there was no good reason to disbelieve Chhotey, PW 1 who was an injured witness and Mewa Ram, PW 2, son of deceased specially when no enmity of Appellant with these witnesses could be elicited in cross examination. Under such circumstances the conviction on a solitary testimony of injured was also sustainable.

We do not subscribe to this contention. It is neither the rule of law nor of prudence that if nothing is found against the witness to show that they were interested or inimically disposed towards the complaint then their evidence as such has to be accepted on its face value. In Sadhu Charan Panda Vs. Mahani Tripathy and Another, it was pointed out that the Judge has to apply his intelligence to properly assess and judge the evidence on record by the yardstick of probabilities its intrinsic worth and the anemus of witnesses, and he is not an automation to mechanically compute the evidence on record without assessing the same in the context and perspective of the above considerations.

When the prosecution version and ocular testimony in this case are tested on anvil of objective circumstances and yardstick of probabilities it does not held water.

It was conceded by Chhotey, PW 1, that the intruders came to his house to commit theft. It appears that for this reason the report also was taken down u/s 460 of the Indian Penal Code. Chhotey had to cut a sorry figure in cross-examination. He conceded that the thieves who came to commit theft in his hut could not carry away any article, he further replied that nothing could be carried as he had no cash, money or valuable; he had simply cooking utensils. He further conceded that the house of Appellant was Pucca; his father had holding to the extent of 45 Bighas and they were carpenters. The hut of the informant did not contain any door or leaves. Under such circumstances it is highly improbable to think that the Appellant who was a co-villager of informant and must have well known this grinding poverty of informant could have gone to commit the theft at his hut where there was hardly any valuable to be stolen. Similarly Chhotey testified that Khimma emerged out of the house and was fired at but he was spared by the Appellant. However, the dead body of Khimma was not found in front of the house of informant but well within his own house which was separated by this Courtyard by a lane as shown in the site plan Ext. Ka. 8. Thus the defence version that occurrence took place inside the house of Khimma where his dead body was found by investigator also appears to be more probable. Both eye-witnesses conceded that the miscreants had covered their heads but their faces were unmasked. Obviously Dhaniram could not have gone to commit theft in his own village without taking precaution of covering his face with a mask to avoid detection. It is strange that he did not cover his entire face but covered it up only partly.

(3) It is further significant to note that occurrence took place at dead of night. A look at almanc would go to show that moon rise on that night was at 2.43 to 6 A.M. so it was pitch dark at the time of occurrence. When an occurrence took place at dark hour of night question of sufficiency of light and good opportunity for recognition assumed importance. It was alleged that a lamp was burning inside the hut of informant. It is difficult to believe that informant on account of his poverty could have afforded to burn mid night oil on that night without any rhyme or reason. The version laid in the FIR shows that the Appellant was recognized not inside the hut where the light of lamp could have been ava ilable but outside in the courtyard in the light of torches flashed by Mewa Ram, PW 2 and Dayaram. Dayaram who was alleged to be torchbearer has not been examined in this case. The two torches Ext. 9 and 10 of Dayaram or Mewaram which are alleged to have been entrusted to them by investigator were not produced in court nor the lamp was produced. Sri Ramjilal did not prepare any entrustment memo about the lamp. Even a scrutiny of statement of Chhotey, PW 1 and Mewa Ram, PW 2 shall go to disclose that such light could not have been available to facilitate recognition of Appellant.

According to Mewa Ram, PW 2, he ran out of his house flashing his torch on hearing the out cry of Chhotey, his father followed him, however, he took cover behind the wall while his father who stood in front of his door in the courtyard was shot dead. He was flashing his torch from behind his wall which was upto chest height. According to Chhotey, PW 1, while he was in the courtyard raising alarm Khimma shouted from his house that they were arriving. He was at a distance of two or three steps from the door of his hut when he received lathi blow. Mewa Ram was shouting standing in the house of Khimma and was flashing the torch from there. It is difficult to reconcile these conflicting versions which unmistakbly go to show that there was no torch light on the spot to facilitate recognition of fleeting miscreants in that momentary glimps on that night specially when the dimension of the injuries sustained by the victim goes to show that the shot was not fired on the victim from a long range.

Thus the evidence about light of torches and lamp which could have facilitated recognition of Appellant is flimsy. The identifiers had no good opportunities for recognition.

(4) The stranger associate of Appellant could not be arrested Investigator did not take any step in the matter. It has been shown above that eye-witnesses Shambhu, Daya Ram and Puttu were not examined to support the prosecution story and their non-production is again a circumstance which reflects on the veracity of ocular testimony in this case. A presumption arises u/s 114, illustration (g) of Indian Evidence Act that such evidence if produced would have been infavourable to prosecution. See Habeeb Mohammad v. State reported in AIR 1954 SC page 51.

In the result appeal is allowed. Conviction and sentence recorded by learned Sessions Judge are set aside and Appellant is acquitted of the charges under Sections 302/323/34, IPC.

The Appellant is in jail. He shall be released forthwith unless required in connection with any other process of law.