Kudauwa and Another vs State of U.P.

Dharnidhar Jha and Pankaj Naqvi, JJ.—The present appeal is directed against the judgment of conviction and order of sentence dated 14.10.1982 passed by the learned IIIrd Additional Sessions Judge, Hamirpur in Sessions Trial No. 198 of 1980 by which six persons were put on trial. Accused Kudauwa, appellant Lala Ram, Smt. Deo Kunwar and Ram Prakash Singh were convicted while accused Ram Vilas, who was also described as Ram Vishal Singh, and Rajendra Singh were acquitted of the charges under Sections 120B, 302 and 201, I.P.C. Convicted accused Kudauwa and present appellant Lala Ram preferred the present criminal appeal together whereas Smt. Deo Kunwar and Ram Prakash Singh have preferred the connected Criminal Appeal No. 2650 of 1982 but what appears is that the two appellants of that connected appeals were reported dead and, by Court''s order dated 21.4.2010, the connected appeal had abated as was the case with the co-appellant in the present appeal namely Kudauwa. Thus, criminal appeal No. 2649 of 1982 survives only on behalf of appellant Lala Ram.

The facts of the case lie in a very narrow compass. A dead body was found floating in a well by some school children and they reported the same to the beat chowkidar Bhola (P.W. 1) who alongwith some respected persons of the village Karahia went to the well and found the information true. The dead body was retrieved from the well-water with the help of a rope and it was found that there were numerous injuries on it, but no identity could be established of the man who had put cloths and a pair of shoes on him. The chowkidar reported the matter to the Police Station on 27.11.1979 and on that basis the F.I.R. of the case, Ex. Ka-1, was drawn up.

Investigation was taken up by P.W. 10 and he came to the place where the, dead body was lying and held inquest upon it in the presence of the witnesses and also recovered the cloths from the dead body by preparing seizure memo. He, thereafter, dispatched the dead body for post-mortem examination to the hospital through Constable Ram Kumar and Mannu Singh.

It appears from the evidence of Dr. V.K. Nigam (P.W. 12) that he found the following ante-mortem injuries on the dead body of the unknown male deceased. Those injuries were as follows:

Lacerated wound 2 c.m. x 1 c.m. x cavity deep on the front of head, a bit on the left side, and underlying frontal bone structure was dislodged and had disappeared.

Lacerated wound 5 c.m. x 2.5 c.m. x brain deep Just above the left eye-brow and the underlying skull bones were found fractured.

Contusion 4 c.m. x 1.5 c.m. on the left side of face and underlying mandible bone was found fractured.

Contusion 7 c.m. x 2 c.m. on the upper limb lying horizontally. Both upper jaws were found fractured.

Gun shot wound of entry 4 c.m. x 3 c.m. x abdominal cavity in the epigastric region 10 c.m. above the umblicious. Margins were inverted and ecchymosed. A loop of large bowel was protruding out. Direction of wound was backward and towards right side.

Multiple contusions in an area 30 c.m. x 17 c.m. on right side of chest and back.

Three gun shot wounds of exit in an area of 3 c.m. x 1 c.m. in a line on the right side of back each measuring 1 c.m. x 1 c.m. x cavity deep. Margins were everted and lacerated.

The doctor found that lungs were decomposed and diaphyram was found perforated on several places alongwith peritonium and abdominal cavity contained clotted bloods. Some food, about two ounce, was also found in the small intestine which was found lacerated and perforated at several places with transverse clear perforation at two places. Large intestine contained faecal matter and gases. Liver was found severely lacerated and gall bladder was half full. Spleen had liquified. Four pallets were recovered from the back of the right side and those were handed over to the accompanying constable.

Thus, what appears to us from the reading of the post-mortem examination report and evidence of P.W. 12 is that it could not be a case that the deceased was killed by being fired at rather there could be a possibility that before being shot at the man was brutally smashed on his ribs, on his head, on his back and also on his chest, and when he had been killed then he was probably dragged to certain distance as is indicated by the lacerations found in a particular area both on chest and back part of the dead body which could. In our opinion, have occurred due to the dragging of the deceased. The man was thrown into the well dead as such there was no finding of any watery substance in the stomach or in any of the parts of viscera.

In view of the medical evidence, we may, with some amount of certainty, note that the act which was perpetrated in such calculated and brutal manner could never have been committed by a solitary hand and that multiple hands must have been involved in it.

After the recovery of the dead body and the recovery of the cloths and other wearing articles found on the dead body, like, the pair of shoes and after about 15 days there from, Dwijendra Singh (P.W. 8), who was the full, elder brother of the deceased alongwith some gentlemen accompanying him, came to the police station with a written report and filed report (Ex. Ka-4) stating that his brother, who had left his house on 21.11.1979, had given out that he was going to the marriage place of P.W. 8 to settle his marriage with his sister-in-law (sali), namely, Droni Kiran @ Padma for whom he had strong feelings of love and he did not come back nor he was heard of or seen thereafter. Statement also was that P.W. 8 had learnt about the finding of the dead body and the belongings of the man whose dead body was found lying in the Police Station and, as such, he had come with a request that his report be accepted and necessary action be taken.

It appears from the evidence of P.W. 8 as also the police officers, like, P.Ws. 10 and 22 that cloths and other belongings of the deceased, which were taken off the dead body, were shown to P.W. 8 and he identified them as belongings of his deceased brother Rajendra Singh. Thus, after 18 days of the recovery of the dead boy and after about 27 days of the deceased having left his home, the identity of the deceased could be established as that of Rajendera Singh who was younger brother of P.W. 8 Dwijendra Singh.

The prosecution examined a huge number of witnesses, i.e., twenty two, but only three witnesses came forward to give some semblance of evidence on matters relevant to the charges framed against the accused persons. P.W. 8 and his niece P.W. 17 Kumari Rubi had come forward to tell the same story that the deceased had demitted his house on 21.11.1979 saying to his family members that he was going finally to settle his marriage with the lady whom he loved, and, thus, came with the scooter of Mohd. Shaft (P.W. 14) to the house of the deceased appellant Smt. Deo Kunwar who was the mother-in-law of P.W. 8 and mother of the young lady Padma @ Droni Kiran for whom the deceased had a huge Infatuation. P.W. 14 had stated that he allowed the deceased to take away his Vijay Super scooter bearing registration No. U.R.D. 8209. The deceased went to the house of Smt. Deo Kunwar, the mother of the beloved of the deceased, appears sufficiently indicated by the recovery of the vehicle on account of an information given by deceased appellant Kudauwa. We may find the above from the evidence of the witness P.W. 22 and also the document Ex. Ka-3 which was the recorded information sheet or information memo leading to the recovery of the scooter from a well.

Mulayam Singh (P.W. 15), a co-villager of Padma @ Droni Kiran, the loved one of the deceased, also stated that the deceased had come with certain articles to meet his beloved and we find that certain articles were recovered from the house of the convicted accused Ram Prakash Singh as appears from the oral evidence of the police as also from the recovery memo (Ex. Ka-16). However, this part of the prosecution evidence has not been acted upon as regards the present appellant Lala Ram. It is true that his name was also appearing in the discovery memo which was by confession leading to the recovery of the scooter which was used by the deceased in accessing his sweetheart. But we are very much conscious about the law that a confession might be by way of an information which further leads the police to discover the fact, may not be admissible against a co-accused. Thus, we are restrained by the settled law not to use that particular evidence against appellant Lala Ram on account of being confession implicating a co-accused by another co-accused. This leads us to consider the only evidence which appears against this appellant Lala Ram as other witnesses who had been examined had never named or had given any evidence which could be relevant to the issue as regards the participation of present appellant Lala Ram.

P.W. 11, was pointing out that he had come from his village Khanna to village Gurdaha, the village of residence of Smt. Deo Kunwar and Padama @ Droni Kiran and while he was proceeding to attend to the call of nature in the evening, he found-appellant Kudauwa and this appellant Lala Ram accompanying the deceased Rajendra Singh who were also going to attend to the call of nature by the river side. P.W. 11 stated that this appellant Lala Ram was carrying a gun with him at that time. Except this evidence, there is no further material coming out of the huge number of evidence of numerous witnesses.

The improbability and absurdity of the evidence are many. There was no particular reason assigned by P.W. 11 as to why a simpleton like, appellant Lala Ram would be carrying a gun if he was going to attend to the call of nature and if he could be so possessive about a gun then the other question which was troubling our mind was as to why the gun was not recovered from him so that the ballistic evidence could have been collected to connect this appellant with the commission of the offence.

The third circumstance which had compounded our anxiety is that the purpose was only to attend the call of nature as per the evidence if we treat it as conclusive-and that too by a river side, the police does not say that they had found any incriminating circumstance or fact by the river side which could raise an inference that any act was committed towards liquidating the deceased there.

The next circumstance which heightens the probability of innocence of the appellant was that the place from where the dead body was recovered was not located in same village Gurdaha rather as the F.I.R. may itself indicate the well from where the dead body was retrieved was situated at village Karahiya. We made valiant efforts on our part and also requested the counsel for both sides to let know as to was there any proximity of neighbourliness between the two villages so that we could have certain circumstance to raise an inference, but in spite of ourselves moving through the evidence of the Investigating Officer and other witnesses, we could not find that villages Gurdaha and Karahiya were lying or situated side by side with each other. The worst was that it could be a case as if P.W. 11 was propped up to depose in support of the prosecution and may be against the appellant, for no reasons and as such his evidence suffers from the great vice and not making it acceptable. The witness stated that he had seen the accused persons whom he identified in court, only for a day when he had seen them in the village. It is apparently clear from his evidence that prior to that particular day or in between the occurrence, the witness deposing in court could not have any occasion of having seen the accused persons. Prudence requires that such evidence of identification must not be accepted.

We have already noted while considering the evidence of the doctor (P.W. 12) that Rajendra Singh was killed by brutally being smashed on most of his vital parts and was also shot at and there could be many hands involved in the killing of Rejendra Singh but the circumstance which the prosecution attempted to create against the present appellant Lala Ram of seen last with Rajendra Singh, to our mind, is of no strength and indeed could not even create a link in the chain of circumstances.

In view of the finding we have recorded on the merits of the evidence just discussed, we find that it was a case virtually of no evidence and as such the learned trial Judge ought not have convicted the appellant Lala Ram and passed the sentence as was passed upon him. In the result, we allow the appeal and acquit the appellant Lala Ram of the charges he had been convicted and direct that he shall be discharged from the liabilities of his bail bonds.