Kali Ram vs State of U.P.

This criminal appeal arises from the judgment and order of the I Vth Additional Sessions Judge, Muzaffar Nagar dated 30.4.1982 convicting and sentencing the Appellant Kali Ram to imprisonment for life u/s 302 read with Section 34, I.P.C. and three years'' R.I. u/s 201 read with Section 34, I.P.C. Two co-accused Kohar Singh and Ram Singh have been acquitted of their charges u/s 302/34, I.P.C. read with Section 201/34, I.P.C. by the same judgment.

We have heard Sri Vinay Saran, learned amicus curiae for the Appellant and the learned A.G.A. and perused the judgment and record.

Briefly, the prosecution case was that on 18.11.1978 at about 5 p.m. the deceased Babu went alongwith P.W. 2 Mahendra his brother, Chetan, C.W. 1 Dhuli, the Appellant Kali Ram and accused Ram Singh (who has been acquitted) to the jungle on a bullock cart belonging to Chetan. At about 8 p.m., Mahendra, Chetan, Dhuli and Ram Singh returned, but Babu and Kali Ram were not in the group. The informant Bhagwana then made a search for him in the direction of the "khaddar", but he was not traceable. However, as the shoes and towel of the deceased were found, hence a suspicion was expressed in the F.I.R. by the informant Bhagwana that Kali Ram was responsible for the disappearance of Babu Ram. The informant Bhagwana lodged a gumshudagi report (Ext. Ka-1) of this incident on 19.11.1978 at 6.05 p.m. at P. S. Meerapur.

At that time P.W. 6 Constable Clerk Prakash Chandra was present, who entered the report at G.D. No. 26 (Ext. Ka-4). The Investigating Officer (P.W. 11) S.I.D.S. Tyagi proceeded to trace Babu Ram on 20.11.1978. He was then informed that the dead body of Babu Ram had been recovered. He conducted the inquest (Ext. Ka-2) and prepared other papers for sending the body for post mortem after sealing it through P.W. 10 C. P. Balbir Singh and Constable Sohanbir Singh. He also inspected the site and prepared the site plan (Ext. Ka-12) and recorded the statement of Bhagwana and inquest witnesses on 22.11.1978. After the case was changed to one u/s 302/201, I.P.C. then S. O. Ram Singh took over and conducted the investigation.

The autopsy of the deceased was conducted on 21.11.1978 at 1 p.m. by P.W. 5 Dr. D. C. Mobar, who mentions the following ante mortem injuries on the person of the deceased:

(1) Abrasion 1" x 1/4" on left side check bone not opened.

(2) Abrasions in an area 6" x 1-1/2" on front of neck extending on either side. Size varying from 1-1/2" x 1" to 1/2" x 1/4". The abrasions are interrupted. There is congestion of the tissues under the injuries.

According to the doctor, there was no rigor mortis and blood mixed water was oozing out from the nostrils. There was no decomposition. Dried earth was found on the body. Eyes and mouth were closed. Conjunctiva was deeply congested. There was fracture of hyoid bone on the right side. According to doctor, the cause of death was strangulation, which might have occurred in the night of 18.11.1978. The time since death was about 2 days.

Thereafter, S.H.O., P.W. 9 Ram Singh started investigations from 23.11.1978. He recorded the statements of the witnesses Bhagwana, Chetan and Mahendra u/s 161, Cr. P.C.

As he was then transferred, the investigation was concluded by P.W. 7 S.H.O. Kishan Saroj, who commenced investigation on 3.1.1979. He verified the affidavits of the witnesses Chetan and Daloo. He arrested the acquitted co-accused Ram Singh and for the rest of the co-accused, he also initiated proceedings u/s 82/83, Cr. P.C. The Appellant Kali Ram surrendered in Court on 28.1.1979. He received an affidavit of Bhagwana on 10.8.1979. P.W. 7 submitted the charge-sheet on 15.9.1979.

Apart from the aforesaid witnesses, P.W. 5 Dr. D. C. Mobar, who conducted the post mortem examination on the deceased, P.W. 6 C. P. Prakash Chandra, who made the chik F.I.R. and G. D., P.W. 11, S.I. D. S. Tyagi, who was the first Investigating Officer, P.W. 9 S.H.O. Ram Singh, who was the second Investigating Officer and P.W. 7 S.H.O. Kishan Singh Saroj, who was the third Investigating Officer, who submitted the charge-sheet and Dr. D. C. Mobar, who conducted the post mortem on the deceased Babu Ram, P.W. 3, Anup Singh and P.W. 4, Hari Kisen were witnesses of the recovery of the body from the canal and also witnesses of the inquest and P.W. 8, Harphool was a witness who disclosed that when he went to wash his hand in the canal after easing himself, he saw the dead body lying there. The water was about a foot deep at that time. He informed Bhagwana about seeing Babu''s corpse lying in the canal. P.W. 10 Constable Balbir Singh, who took the dead body and other papers for autopsy was the last formal witness of the case.

Three witnesses of fact, Bhagwana the informant, who is the father of the deceased, P.W. 2 Mahendra the brother of the deceased and C.W. 1 Dhuli, who was a witness called by the Court have been examined in this case.

P.W. 1 Bhagwana deposed that he knew the Appellant Kali Ram and co-accused Ram Singh and Kohar Singh from before, as they were his co-villagers. On the date of incident, they had come to his house and taken away Babu and his brother Mahendra to the jungle for the purpose of cutting wood. They had taken Chetan''s bullock cart. The same night at 11 p.m. Kali Ram had come to his house alongwith Mahendra, who was drunk. Kali Ram promised to bring back Babu when he enquired about him. As Babu''s mother began crying that they should make a search for him, then the informant Bhagwana went to Kali Ram''s house. Kali Ram disclosed that he did not have information of the whereabouts of Babu and on further questioning he stated that Babu have reached Haridwar. Then he became suspicious and started searching for Babu on the route on which the accused had taken him. On the route he found the towel, both shoes and underwear belonging to Babu. But as he could not find Babu, he returned home. At a later time he could not find the Appellant Kali Ram also. He then got the report scribed by Karan Singh and lodged it at the police station. On the day following the lodging of the report, the dead body of Babu was found in the canal at a distance of about half a mile from his house. He identified the dead body. Chetan and Dalu, who were also witnesses of fact, had died and hence they did not depose in Court.

P.W. 2 Mahendra deposed that the aforementioned accused persons took him and Babu to the jungle for the purpose of cutting wood on the bullock cart of Chetan. On reaching the jungle Kali Ram stated that they should have their meals and drinks before cutting the wood. They stopped the bullock cart near the farm of Sardaro and Kali Ram brought a bucket of wine. Babu, Mahendra and Chetan drank a glass of liquor each at the farm belonging to Sardaro, but Kali Ram himself did not drink, as he stated that he was receiving medical treatment. After that Kali Ram and co-accused Ram Singh and Kohar Singh took Babu with them, and told him that they were taking Babu home, whereas he and Chetan who had became unconscious kept lying on the bullock cart. He was not conscious until he found himself in his home the next day. His father told him that Kali Ram and two co-accused had dropped him home. On the third day his brother''s dead body was found in the canal. At that time Kali Ram used to work on the field of Kohar Singh, Ram Singh was Kali Ram''s cousin brother and they were close associates.

The Court witness C.W. 1 Dhuli had deposed that he knew Bhagwana and his son Babu. He states that he was at home and he does not have any idea how Babu had died. He denies going to search for Babu in the night alongwith Bhagwana, but he claims to have gone to search for him separately next morning. Neither he nor Bhagwana could find Babu. However, Bhagwana found the shoes (Exts. 1 and 2), towel (Ex. 3) and underwear of Babu. To a query by the State counsel he states that at about 4.30 p.m. when he was at his house, Kali Ram took Chetan, Babu and Mahendra with him to the jungle for cutting wood on Chetan''s bullock cart. In the night Kali Ram brought Chetan, who was drunk at about 9 p.m. or 10 p.m. When Dhuli''s father asked him where Mahendra and Babu were, he said that he would go and look for them. Then he went away. On returning back he disclosed that Mahendra had been dropped at his house. But when his father asked about Babu, he told him that he could not find him. Kali Ram disappeared from his home the next morning.

In his Section 313, Cr. P.C. statement the Appellant has denied the prosecution case and claimed that he had been falsely implicated on account of partybandi. He has not led any evidence in defence.

It was argued by Sri Vinay Saran, learned amicus curiae that this is a case of circumstantial evidence and the circumstances are not so clear and clinching so as to lead to the only inference of guilt against the Appellant. No motive, whatsoever, has been mentioned for this crime. There is contradiction between the versions as mentioned in the F.I.R. and in the evidence of P.W. 1 Bhagwana, the informant. Inter se there are material contradictions in the testimonies of the different witnesses. On the same evidence all other co-accused Mahendra Singh and Ram Singh had been acquitted by the learned Judge. He also argued that the deceased was not murdered and died as a result of an accident as the wheel of a bullock cart went over him, because he was in a drunk condition.

Learned A.G.A. on the other hand has sought to support the judgment of the trial Judge.

We think that so far as the last contention of the learned Counsel for the Appellant that the deceased was not murdered, but after taking liquor he had fallen down and a cart had over-run him. We find that the learned Counsel has sensibly not pressed this submission. When the cause of death is clearly strangulation with a fracture of the hyoid bone, with abrasions on the cheek and neck on either side. This could not be the state of the body, if the deceased had died as a result of being crushed under the wheel of the bullock cart, hence there could be no doubt about the fact that the cause of death of the deceased was homicide. But from the mere fact that the cause of death was homicidal, due to strangulation and the defence suggestion of the deceased dying because of an accident by being crushed under the wheel of the bullock cart after consuming alcohol, being found unacceptable cannot lead to an invariable inference that the Appellant alone had murdered the deceased.

That death is homicidal due to strangulation is one issue, but the question as to who has caused the death has still to be answered in the light of the evidence on record. The main question therefore to be examined in this case is whether there was sufficient evidence to connect the Appellant with this crime. So far as the motive is concerned, we find that no witnesses of fact viz. P.W. 1 Bhagwana the informant and father of the deceased, P.W. 2 Mahendra the brother of the deceased and C.W.1 Dhuli have said a word in their examination-in-chief about any motive for the Appellant to commit the crime. Only in response to a Court query, one line has come in the evidence of P.W. 1. Bhagwana that one month prior to the incident a marpeet had taken place between Kali Ram and the deceased Babu. We do not think that this one line, which has been elicited on a Court query, would constitute sufficient motive for committing this grave crime. The deceased seemed to have gone voluntarily with the Appellant and other co-accused, when he had come to call him for helping him cut wood, and even his parents and other relations had not registered any protest when he had gone with the accused persons for cutting wood.

However, the legal position is that motive loses importance, if the evidence to connect the accused with the crime deposed to by the witnesses is very reliable. The question, which arises in this case, is whether the evidence that has emerged in this case bears that stamp of reliability for safely recording the conviction of the Appellant in the absence of an adequate motive for the crime. Here we find that the version in the F.I.R. was that at about 8 p.m. out of the six persons Babu, Mahendra, Chetan, Dhuli, Kali Ram and Ram Singh who had gone to the jungle together, four persons, other than Babu and Kali Ram had returned. But as Babu had not returned, at about 12 a.m. midnight, the informant and a large number of persons had gone to search for Babu towards the khaddar, but he was not found. However, Babu''s shoes, underwear and towel were found on the way. In his evidence, P.W. 1 has developed his case, and deposed that Kali Ram, Chetan and Mohar had taken away his sons Babu and Mahendra to the jungle for the purpose of cutting wood on Chetan bullock cart. At about 11 p.m. when Kali Ram had come to his house alongwith Mahendra, who had lost consciousness due to drinking, Kali Ram had told him that he would bring Babu, when Bhagwana enquired about Babu''s whereabouts. As Babu''s mother began crying, hence Bhagwana left the house to look for Babu. He went to Kali Ram''s house, but he disclaimed knowledge of the whereabouts of Babu. Later Kali Ram replied that Babu had gone to Haridwar. Then this witness became suspicious towards Kali Ram. He went to search for Babu on the way on which they had taken Babu. As he could not find Babu, he returned home. This evidence in Court is a substantial improvement from the F.I.R. version.

According to P.W. 2 Mahendra, the three accused persons including the Appellant took away Babu, after Babu, Mahendra and Chetan had consumed liquor, leaving Chetan and Mahendra behind sleeping on the bullock cart in the jungle. They had told Mahendra that as Babu were always quarrelling, hence they were going to drop Babu first. He does not know how he reached home, but he states that his father had told him that all the three accused persons including the Appellant had dropped him by bullock cart. Significantly in his Section 161, Cr. P.C. statement to the second Investigating Officer, P.W. 9 S.O. Ram Singh, P.W. 2 Mahendra had stated that as he was drunk he does not know how Babu left the place and where he went, but he suspected Kali Ram.

Bhagwana P.W. 1 has stated that Kali Ram had brought back Mahendra at 11 p.m. Thereafter there is another contradiction. C.W. 1 Dhuli even repudiated going away with the other persons when they had gone to the jungle to cut wood. Also he states that Kali Ram had brought Chetan back in a drunk condition at 9-10 p.m. When Dhuli''s father enquired about Mahendra and Babu, he went back and on returning disclosed that Mahendra had been dropped at his home. About Babu he said he could not find him. This is thus a third version. Also in our view, it is unlikely conduct for an accused to drop one brother home in a natural manner as has been done in the present case, if he has murdered the other brother. We think that the trial Judge has erred in presuming that dropping back one brother Mahendra home could be part of the strategy for concealing his game plan of having murdered his other brother Babu. There needs to be concrete evidence for reaching this conclusion in a case of circumstantial and substantial evidence, which cannot be decided on the basis of presumptions, as the other view that this Appellant had dropped back Mahendra home in a bona fide manner, and that the deceased had gone away somewhere and was murdered could not be rejected outright.

Simply the recovery of shoes, towel and underwear of the deceased by the father of the deceased does not advance the prosecution case, as there was no allegation that any item belonging to the deceased had been discovered on the instance of the Appellant or the other accused.

From the mere circumstance that the Appellant had given an explanation to Bhagwana that Babu had gone to Haridwar which was falsified by the fact that Babu''s underwear, shoes and towel were found on the way to the khaddar where the Appellant and co-accused had taken him, and later the body of Babu was seen in the canal, cannot lead to an inevitable inference that the Appellant Kali Ram had given a deliberately false explanation of Babu having gone to Haridwar. He might have thought that the deceased had gone to Haridwar. From this circumstance alone it would not be safe to record a finding of guilt against the Appellant.

Moreover we find that on virtually the same evidence two accused persons Kohar Singh and Ram Singh have been acquitted, and there is nothing significant to distinguish Kali Ram''s case from the case of these two acquitted accused.

We therefore think that the facts and circumstances of this case are not such that no other view may be taken of the evidence, or they lead to the only inference of guilt against the Appellant, and that all the links in the chain of circumstances have been exhaustively tied up. For all these reasons we think that the judgment of the trial Judge convicting the Appellant as aforesaid cannot be sustained. The result is that the appeal succeeds and is allowed. The Appellant is on bail. He is acquitted of the charges. He need not surrender. His bail bonds are hereby cancelled and his sureties are discharged.