Jia Ram and Another (in Jail) vs State of U.P.

Vishnu Sahai, J.—This appeal has been preferred by Jia Ram Verma and Buddhu Verma against the judgment and order dated 24.3.1981 passed by the Sessions Judge, Sultanpur in Sessions Trial No. 38 of 1980, whereby they have been convicted and sentenced in the manner stated hereinafter ; u/s 302 read with Section 34, I.P.C. to imprisonment for life ; u/s 324 read with Section 34, I.P.C. to one year''s R.I. ; and u/s 323 read with Section 34, I.P.C. to six months'' R.I. ;

Further Jia Ram Verma was convicted and sentenced to undergo 1-1/2 years R.I. for the offence punishable u/s 324, I.P.C. and Buddhu Verma to 1 year''s R.I. for that punishable u/s 323, I.P.C.

The sentences of the Appellants were ordered to run concurrently.

It is pertinent to mention that although in the F.I.R. two other accused, namely, Radhey Shyam and Ayodhya Pandey were nominated but from the evidence on record it is not clear why they were not put up for trial.

Shortly stated, the prosecution case runs as under:

The informant Ram Lakhan (P.W. 1), Sahdeo (P.W. 2), Bhagelu (P.W. 4), Ms. Sarju Dei (P.W. 5), the deceased Paras Nath and the Appellants, at the time of incident, were living in village Urdhanpur within the limits of police station Jaisinghpur, district Sultanpur.

On 30.1.1978, at about 2.00 p.m., while Ms. Sarju Dei (P.W. 5) was on way to see her field, wherein rai and sarson crop was standing and had reached the northern corner of the field of Jagnarain, she saw Ginai, sister of Appellant Jia Ram Verma, uprooting rai and thereafter running towards the house of her father Ram Awadh. She remonstrated. On that Appellants Jia Ram Verma and Buddhu Verma along with co-accused Ayodhya and Radhey Shyam came. Appellant Buddhu was having, a lathi and remaining three ballams. Buddhu started assaulting Ms. Sarju Dei with lathi. Seeing this the informant Ram Lakhan (P.W. 1), Sahdeo (P.W. 2) and the deceased Paras Nath, who were in an adjoining potato field, came to her rescue, whereupon the Appellants, and co-accused Ayodhya and Radhey Shyam belaboured them. Hearing cries Bhagelu (P.W. 4) and Jagnarain also came there. On being reprimanded, the Appellants and others ran away. In order to save themselves, Ram Lakhan and Sahdeo assaulted the accused with the handles of kudal.

Thereafter the informant putting Paras Nath, who was precariously injured, on a cot along with Ms. Sarju Dei and Sahdeo, proceeded to police station, Jaisinghpur. On the way, Paras Nath succumbed to his injuries. At police station, Jaisinghpur, the informant Ram Lakhan lodged his F.I.R.

The evidence of Head Constable Govind Saran Tripathi (P.W. 6) shows thus: On the date of incident, i.e., on 30.1.1978, at 3.40 p.m., the informant Ram Lakhan, accompanied by Ms. Sarju Dei and Sahdeo came to police station, Jaisinghpur and lodged his F.I.R. On the basis of it, he prepared a chik F.I.R. (Ex. Ka-1). He found injuries on the person of Sarju Dei, Sahdeo and the informant, which he recorded in case diary and sent them for medical examination.

His evidence also shows that the same day at 4.20 p.m., he registered a case on the basis of a counter F.I.R. lodged by Appellant Jia Ram, a true copy of which is Ex. Kha-1, and noted the injuries on the person of Appellants Jia Ram and Buddhu in the general diary and sent them for medical examination.

The injuries of Sahdeo were medically examined on 30.1.1978 at 6.30 p.m. by Dr. R. D. Tripathi (P.W. 3) Medical Officer on Emergency Duty, District Hospital, Sultanpur, who found on his person the following injuries:

(i) Lacerated wound 1 cm. x .5 cm. x scale deep on the head 13 cm. above radial to rt. ear bleeding present irregular edge.

(ii) P.W. 1.2 cm. x .5 cm. x 1 cm. on the rt. side of the back 6 cm.

In the opinion of Dr. Tripathi, the said injuries were fresh ; Injury No. 1 was attributable to a blunt weapon ; and No. 2 to a pointed weapon.

The injuries of Ram Lakhan and Smt. Sarju Dei were medically examined by Dr. Ram Surat (P.W. 7) Medical Officer, Primary Health Centre, Jaisinghpur on 30.1.1978 at 7.30 a.m. and 8.00 a.m. respectively.

On the person of Ram Lakhan, Dr. Ram Surat found the following injuries:

(i) Lacerated wound on the left side of scale 12 cm. above the left ear, size 10 cm. x 0.5 cm. x skin deep.

(ii) Incised wound on the palmer aspect of rt. hand 2 cm. behind the base of rt. hand directed laterally, size 2 cm. x 0.5 cm. x 0.5 cm. margins clean cut and well defined.

(iii) Punctured wound on the posterior aspect of rt. thigh 7 cm. above face rt. knee joint directed laterally, size 1.5 cm. x 0.5 cm. x 1.5 cm., margins clean cut and well defined.

(iv) Contusion on the superior aspect of left shoulder, size 6 cm. x 2 cm.

Duration of injuries.-About 16 hrs. old.

In the opinion of Dr. Ram Surat, injuries Nos. 1 and 4 were caused by a blunt weapon, No. 2 by a pointed weapon and No. 3 by a sharp cutting weapon.

On the person of Smt. Sarju Dei, Dr. Ram Surat found the following injuries:

(i) Lacerated wound on the rt. side of forehead 6 cm. above the rt. eyebrow, directed laterally size 6 cm. x 0.5 cm. x 1 cm.

(ii) Contusion the left side of back in the left scapula region medial leterally side 7 cm. x 2 cm.

(iii) Contusion on the rt. side of back in the rt. scapula region size 6 cm. x 2.5 cm.

In the opinion of Dr. Ram Surat, the said injuries were simple in nature and attributable to a blunt weapon.

The injuries of Appellants Jia Ram and Buddhu Verma, and that of the former''s father Ram Awadh and mother Smt. Pranpati (wife of Ram Awadh) were medically examined by Dr. Ram Surat (P.W. 7) Medical Officer, Primary Health Centre Jaisinghpur on 31.1.1978 at 8.30 a.m., 9.00 a.m., 9.45 a.m. and 10.30 a.m. respectively.

On the person of Jia Ram Dr. Ram Surat found the following injuries:

(i) Punctured wound on the anterior aspect of left leg size 2 cm. x 1 cm. x 1/5 cm., 9 cm. above the left ankle joint, directed vertically, margins clean cut and well defined.

(ii) Punctured wound on the lateral aspect of left leg 7 cm. above the lateral malleulus size 1.5 cm. x 0.5 cm. x 2.5 cm. directed vertically margins clean cut and well defined.

(iii) Contusion on the right side of back in the right scapula region directed laterally size 7 cm. x 2.5 cm. Duration - About 16 hours old.

In the opinion of Dr. Ram Surat, injury Nos. 1 and 2 were attributable to a sharp pointed weapon and injury No. 3 to a blunt weapon.

On the person of Buddhu Verma Dr. Ram Surat found the following injuries:

(i) Lacerated wound on the left side of scalp 9 cm. above the left eyebrow in middle directed obliquely size 3.5 cm. x 0.5 cm. x skin deep.

(ii) Lacerated wound on the scalp 4 cm. above the occipital eminence directed laterally size 4 cm. x 0.5 cm. x skin deep.

(iii) Contusion on the right side of scalp 7 cm. above the right ear directed laterally size 6 cm. x 2.5 cm.

(iv) Contusion on the superior aspect of right shoulder joint directed anterio-posteriorly, size 7 cm. x 3 cm.

(v) Suspected dislocation of right shoulder joint Adv. X-ray to confirm the injury.

(vi) Contusion on the dorsal aspect of left thumb in the middle directed laterally size 2 cm. x 1.5 cm.

(vii) Contusion on the left side of back in the left scapular region directed laterally size 6 cm. x 2 cm.

(viii) Contusion on the lateral aspect of right lateral joint directed laterally size 2 cm. x 2 cm.

(ix) Contusion on the dorsal aspect of middle finger of right hand at the level of first interphalangeal joint directed laterally size 2.5 cm. x 1.5 cm.

(x) Suspected fracture of lower end of one phalanx of middle finger of right hand advised x-ray to confirm the injury.

(xi) Contusion on the posterior aspect of left thigh 20 cm. above the left knee joint directed laterally size 8 cm. x 3 cm.

(xii) Contusion on the posterior aspect of right leg 11 cm. above the right ankle joint. Directed laterally size 5 cm. x 2 cm.

Duration of injuries - About 16 hours old.

In the opinion of Dr. Ram Surat all the injuries were caused by blunt object.

On the person of Ram Awadh, Dr. Ram Surat found the following injuries:

(i) Incised wound on the dorsal aspect of left hand 1 cm. behind the base of index finger of left hand, directed laterally size 2 cm. x 0.2 cm. x skin deep margins clean cut and well defined.

(ii) Contusion on the dorsal aspect of left hand 5 cm. below the left wrist joint directed laterally size 7 x 4 cm.

(iii) Suspected fracture of metacarpal bone of middle finger of left hand advised x-ray to confirm the injury.

(iv) Contusion on the superior aspect of right shoulder joint directed anterio-posteriorily size 5 cm. x 2 cm.

(v) Contusion on the left side of back to the left scapular region directed laterally size 6 cm. x 2.5 cm.

(vi) Contusion on the right side of back 6 cm. below the lower end of right scapular bone directed laterally size 8 cm. x 2.5 cm.

In the opinion of Dr. Ram Surat, injury No. 1 was caused by sharp cutting weapon and the other injuries by a blunt weapon and the injuries were 16 hours old.

On the person of Smt. Pranpati Dr. Ram Surat found the following injuries:

(i) Lacerated wound on the scalp 8 cm. below the occipital eminence directed obliquely size 9 cm. x 1 cm. x 1 cm.

(ii) Contusion on the lateral aspect of left thigh 17 cm. above the left knee joint directed laterally size 6 cm. x 2.5 cm.

(iii) Contusion on the dorsal aspect of left forearm 10 cm. above the left wrist joint, directed laterally size 4 cm. x 2 cm.

(iv) Contusion on the lateral aspect of right thigh 22 cm. above the right knee joint directed obliquely size 2 cm. x 2 cm.

(v) Contusion on the left buttock directed laterally size 6.5 cm. x 2.5 cm.

In the opinion of Dr. Ram Surat the said injuries were about 16 hours old and were attributable to a blunt weapon.

It is significant to point out that on 4.2.1978 at 10.00 a.m. Dr. Ram Surat (P.W. 7) medically examined Smt. Gyanwati and found on her person the following injuries:

(i) Lacerated wound on the left side of scalp 7 cm. above the left eyebrow, on middle directed anterio-posteriorily. Size 6 cm. x .5 cm. x skin deep.

(ii) Contusion on the scalp 4 cm. above the occipital eminence directed laterally size 5 cm. x .5 cm.

(iii) Contusion on the lateral aspect of right upper arm 7 cm. above the right elbow joint directed laterally size 6 cm. x 2 cm.

(iv) Contusion on the right side of back 6 cm. below the lower end of right scapular bone, directed laterally size 7 cm. x 2 cm.

(v) Contusion on the dorsal aspect of left fore arm 10 cm. above the left wrist joint, directed laterally size 4 cm. x 2 cm.

In the opinion of Dr. Ram Surat, the said injuries were five days old and were attributable to a blunt weapon.

It is pertinent to mention that Jia Ram and Buddhu (Appellants) and Ram Avadh alias Avadhu were also medically examined by Dr. Umesh Chandra Tyagi (P.W. 11) Doctor, District Jail, Sultanpur.

Dr. Tyagi examined Jia Ram and Buddhu on 31.1.1978 and Ram Avadh alias Avadhu on 1.2.1978.

The autopsy on the corpse of the deceased Paras Nath Verma was conducted on 31.1.1978 at 1.00 p.m. by Dr. K. N. Singh (P.W. 10) Medical Officer, District Hospital, Sultanpur, who found on it the following ante-mortem injuries:

(i) Punctured wound spindle shaped clean cut margin 3 cm. x 1 cm. x chest cavity deep Superficial wound is on the left side of chest in the sixth inter-costal space. The weapon has gone backward and outward and punctured the heart on its bare area.

On the Heart:

Wound of Entrance.-2 cm. x 5 cm. through and through-present.

Wound of exit.-1 cm. x 5 cm. through and through-present on the back surface of the left ventricle 1.5 cm. above the lower border.

Distance between the two wounds measured 6 cm.

(ii) Incised wound 1.5 cm. x 0.5 cm. x bone deep spindle shaped with clean cut margin and sharp angles present on fore head just above the left eyebrow.

On internal examination Dr. Singh found pericardium and heart punctured under injury No. 1.

The cause of death spelt out in the post-mortem report is shock and haemorrhage on account of injury No. 1.

The bulk of the investigation was done by Shiv Moorat Singh (P.W. 12) of police station, Jaisinghpur and some by Inspector Ram Jatan Yadav (P.W. 8) and Inspector Ram Karan Singh of police station, Kotwali, district Sultanpur.

The evidence of S.O. Shiv Moorat Singh shows. The F.I.R. was lodged in his presence on 30.1.1978 at 3.40 p.m. He performed the inquest of the corpse of the deceased and sent it for autopsy and thereafter left for the place of the incident where he prepared the site plan and interrogated the witnesses. Thereafter on the order of Superintendent of Police, the investigation was transferred to Inspector in-charge Kotwali, Sultanpur.

The evidence of Ram Jatan Yadav, Inspector in-charge Kotwali shows that he took over the investigation on 9.2.1978 and interrogated witnesses Ram Ujagar and Bhagelu and thereafter he was transferred and the investigation was taken over by Inspector Ram Karan Singh of police station, Kotwali, district Sultanpur.

It is pertinent to mention that Ram Karan Singh was not examined in the said case.

The case was committed to the Court of Sessions in the usual manner. After being charged the Appellants were put up for trial.

During trial, in all, the prosecu-tion examined twelve witnesses. Four of them, namely, Ram Lakhan, Sahdeo, Bhagelu and Sarju Dei, P. Ws. 1, 2, 4 and 5 respectively were examined as eye-witnesses.

The suggestion given to the eye-witnesses during cross-examination was that on the date and time of the incident, the informant Ram Lakhan, Ram Dular, deceased Paras Nath, Ram Karan, Shanker Dayal, Hari Ram and others, out of whom Ram Karan was armed with a ballam, Hari Ram and Ram Ujagar with guns, and rest with lathis, came to the house of Appellants Buddhu Verma and Jia Ram, broke the tile roof ; and assaulted Buddhu, Jia Ram (Appellants) Ram Avadh, Smt. Pranpati and Smt. Gyanwati and in order to defend themselves Appellant, Buddhu Verma and Ram Avadh with lathi and Gyanwati and Appellant Jia Ram with ballam assaulted them. The said suggestion was denied by the eye-witnesses.

In defence, one witness, namely, Ram Shanker Misra, D.W. 1 was examined.

The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the Appellants in the manner stated in paragraph 1.

Hence this appeal.

We have heard learned Counsel for the parties and have no reservations in concluding that this appeal deserves to be allowed.

It is significant to point out that area of controversy is very limited. The date and time of the incident is admitted. The only question whether the incident took place in the manner furnished by four eye-witnesses of the incident examined by the prosecution, namely, Ram Lakhan, Sahdeo, Bhagelu and Ms. Sarju Dei, P. Ws. 1, 2, 4 and 5 respectively or in that suggested to them during their cross-examination or both sides are suppressing their aggression and the genesis of the incident and the manner in which it took place.

In our view, the incident neither took place in the manner deposed to by the eye-witnesses, nor in that suggested to them by the defence in their cross-examination and both sides are suppressing their aggression and the genesis of the incident and the manner in which the incident took place is not forthcoming

We make no bones in observing that the evidence of the four eye-witnesses, namely, Ram Lakhan, Sahdeo, Bhagelu and Ms. Sarju Dei cannot be accepted, not only because three out of them, namely, Ram Lakhan, Sahdeo and Ms. Sarju Dei are victims in the incident and highly interested witnesses (Ram Lakhan and Sahdeo being real brothers and Ms. Sarju Dei their sister-in-law) but also because they have only endeavoured to explain the injuries sustained by the Appellants Jia Ram and Buddhu for the first time in the statements in the trial court and failed to explain the injuries sustained by Ram Avadh. Smt. Pranpati and Gyanwati.

It is significant to point out that the aforesaid four eye-witnesses have endeavoured to explain the injuries of Appellants by stating that two out of them, namely, Ram Lakhan and Sahdeo assaulted the Appellants with handles of kudals. Apart from the fact that this explanation is forthcoming for the first time in their statements in the trial court and they could give no satisfactory explanation for its omission in their statements u/s 161, Cr. P.C. when they were confronted with it, we have seen that out of the three injuries sustained by Appellant Jia Ram, two of them were punctured wounds, which as per evidence of Doctor Ram Surat, who medically examined Jia Ram, were attributable to a pointed weapon. The eye-witnesses have failed to explain the punctured wounds sustained by Appellant Jia Ram. This is the reason why we have said that they have only endeavoured to explain the injuries sustained by Appellants Buddhu and Jia Ram.

Apart from it, as mentioned earlier, there is a more basic infirmity in the evidence of four eye-witnesses namely, that they have failed to explain the injuries sustained by Ram Avadh, Smt. Pranpati and Smt. Gyanwati.

Earlier we have extensively set out the injuries sustained by Ram Avadh, Smt. Pranpati and Smt. Gyanwati and their perusal shows that they were substantial in number and found on the vital parts of the body.

In our view, the failure of the aforesaid four eye-witnesses to explain the injuries sustained by Ram Avadh. Smt. Pranpati and Smt. Gyanwati and to adequately explain those sustained by the Appellants as is alone a sufficient ground for rejecting their testimony.

Another reason why the testimony of these four eye-witnesses cannot be relied upon is because it fails to explain how tile roof of Ram Avadh, (father of Appellant Jia Ram) was broken and his madha dismantled. It is significant to point out that D.S.P. Rama Shanker Misra (D.W. 1) in his statement has stated that on 1.2.1978 he did spot inspection and found the roof of Ram Avadh broken and his madha dismantled.

But at the same time, we make no bones in observing that the defence suggestion given to the eye-witnesses, namely, Ram Avadh, Bhagelu, Smt. Pranpati and Smt. Gyanwati is also not worthy of belief. The said suggestion, which is that on the date and time of the incident, the informant Ram Lakhan, Ram Dular, deceased Paras Nath, Ram Karan, Shanker Dayal, Hari Ram and others, out of whom Ram Karan was armed with a ballam. Hari Ram and Ram Ujagar with guns, and the rest with lathis, came to the house of Appellant Buddhu Verma and Jia Ram, broke the tile roof of Jia Ram''s father Ram Avadh and assaulted the Appellants and Ram Avadh, Smt. Gyanwati and Smt. Pranpati and in order to save themselves Appellant Buddhu Verma and Ram Avadh with lathis and Gyanwati and Appellant Jia Ram with ballam assaulted them, fails to explain the injuries of Sahdeo and Ms. Sarju Dei.

However, in our view, the falsity of the defence would not enure to the advantage of the prosecution. It is a trite that prosecution swims or sinks depending on the strength or weaknesses of its case and does not thrive on the falsity of the defence. To put it differently, the prosecution does not prove its case by default.

In our view, this is a case where neither the prosecution nor the defence are coming out with the whole truth and each side is suppressing its aggression. As mentioned above, in such a situation, the prosecution is not the gainer and the benefit has to be given to the defence.

In this connection, we would like to advert to a decision of the Apex Court rendered in the case of Jamuna Chaudhary and Others Vs. State of Bihar, and a Division Bench decision of this Court Subrati v. State of U. P. 1959 ALJ 423.

It would be pertinent to extract the observations contained in paragraph 12 of Jamuna Chaudhary''s case (supra), which reads thus:

As neither the prosecution nor the defence have, in the case before us, come out with the whole and unvarnished truth, so as to enable the Court to judge where the rights and wrongs of the whole incident or set of incidents lay or how one or more incidents took place in which so many persons, including Laldhari and Ramanandan, were injured, Courts can only try to guess or conjecture to decipher the truth if possible. This may be done, within limits, to determine whether any reasonable doubt emerges on any point under consideration from proved facts and circumstances of the case.

In Shubrati''s case (supra) it was held thus:

It is well-settled principle of criminal law that an accused can be convicted only when on the evidence produced the Court is in a position to come to a definite conclusion beyond the possibility of reasonable doubt that the accused committed the offence with which he stood charged. No conviction can be based on mere possibilities. Nor is it permissible for the Court to speculate as to what had really happened. If both the parties come to Court with untrue facts and conceal the real truth they have themselves to blame and they cannot expect the Court to arrive at any definite conclusion on the unreliable evidence produced either for or against either of the parties. In such a case the Court will certainly attempt to separate the grain from the chaff but only if it is possible to do so. In certain circumstances it may be found to be an impossible task. That is particularly so when the evidence of both the parties is thoroughly unreliable and cannot be accepted even in part with safety. In such a case it is not open to the Court to make out a third case which is different from the case set up by both the parties. In such a case the Court can only say that the matter is doubtful in the extreme and it is not possible to arrive at any conclusion one way or the other. The result of such a finding may be that all the persons who stand as accused in the case may have to be given the benefit of doubt. But that cannot be helped. The defective investigation and the conduct of the parties themselves are really responsible for that regrettable result. In such a case there can be no question of recording any conviction.

In our view, the ratio laid down in the said cases is wholly applicable to our case. We feel that in the instant case, it is impossible to comprehend as to how the incident took place. And we certainly do not want to enter the world of fantasy and carve out a third case.

Since the prosecution has failed to explain how the tiled roof of Jia Ram''s father Ram Avadh was broken and his madha dismantled ; how Jia Ram sustained punctured injuries ; and the injuries of his father Ram Avadh, his mother Pranpati, and Smt. Gyanwati ; we are left with no option but to give the benefit of doubt to the Appellants.

In our view, the probability of the Appellants acting in self-defence of their person is fairly high.

In the result, we allow this appeal, set aside the convictions and sentences of the Appellants on all the counts ; acquit them thereunder ; and direct that they should not surrender to their bail and their bail bonds stands cancelled and sureties discharged.