Machlu and Others vs State

H.L. Gokhale, C.J.—These two appeals u/s 374 of Cr. P.C. seek to challenge the judgment and order dated 30.6.1987, rendered by the Sessions Judge, Hardoi in Sessions Trial No. 292 of 1986. The Appellants in these two appeals are 12 accused in that trial. They were all charged for the double murder of one Shyam Lal and Hardwar on 28.1.1986 at 11 a.m. in the Village Sanwal Khera under Police Station Sandila, district Hardoi.

Criminal Appeal No. 443 of 1987 is filed by Machlu and 10 others, whereas Criminal Appeal No. 564 of 1987 is filed by one Ganga Ram. Out of 11 Appellants in Criminal Appeal No. 443 of 1987, Appellant No. 5, one Rajau and Appellant No. 9, one Mulla, died after filing of the appeal. So this appeal abates to the extent of these two Appellants.

All these Appellants have been convicted under (i) Section 302 read with Section 149, I.P.C. (ii) Section 201 read with Section 149, I.P.C. and (iii) Section 323 read with Section 149, I.P.C. They have all been sentenced to undergo (i) imprisonment for life (ii) imprisonment for one year''s R.I. and (iii) imprisonment for six months'' R.I. respectively under each of these counts. All sentences are to run concurrently. As far as the accused-Machlu, Jamuna, Ganga Ram, Manau and Rajau are concerned, they are additionally convicted and sentenced u/s 148, I.P.C. to undergo two years'' R.I. Accused-Moti, Keshav, Ram Deo, Jai Ram, Mulla, Ram Asrey and Ram Gulam are additionally convicted and sentenced u/s 147, I.P.C. to undergo one year''s R.I. All these sentences were to run concurrently. From amongst these accused, only Ganga Ram was in jail during the trial. All the accused were on bail after the appeals were admitted.

The prosecution case is based on the F.I.R. lodged by one Harish Chandra, son of the deceased Shyam Lal, which is stated to have been lodged at 3.30 p.m. on the date of occurrence. Before narrating as to what has happened leading to the filing of the F.I.R., the complainant points out three prior incidents. Firstly, he states in the F.I.R. that for the last two years, Rajau and Moti had filed a case concerning consolidation of agricultural land before the concerned officer against his uncle Hardwar. This has led to enmity between the two groups. Secondly, he has stated that Rajau and Moti were anti-social elements and the local police was always in search of them, and these two accused thought that the uncle of the complainant, one Gur Prasad was a police informer. Thirdly, the complainant has stated that in view of this, on altercation took place on the previous date, i.e., 27.1.1986 in the Village Sikrohiya between the aforesaid Gur Prasad and one Mulla belonging to the group of Rajau and Moti, and this Mulla is stated to have threatened in the following words ''you people are the police informer and we will take care of you''. Thereupon, this uncle-Gur Prasad is stated to have beaten up Mulla in the market by fists and kicks.

Thereafter, it is stated in the F.I.R. that complainant''s father Shyam Lal and uncle-Hardwar and Gur Prasad were having a word with one Chotakkey Barhai (Carpenter) and were getting some work done from him in the very village at about 11 a.m. on the date of the incident. The accused descended at that particular place. They included Machlu and Munau, both sons of one Parsadi Lodh. They were carrying half gun and axe, and one Ganga Ram and Jamuna, both sons of Dunda Lodh came with an axe and country made pistol. One Moti and Rajau, both sons of Shital came with lathi and axe. Keshav, Ram Deo, Jairam sons of Gokaran Lodh and one Mulla son of Bhagat Lodh and Ram Gulam, Ram Asrey, sons of Mulla Lodh came with lathis. They came at the door of this Chotakkey. They encircled these three persons, and Machlu said that you people have become big gundas and now we will not permit your dadagiri to continue. After listening to their shouts, this Harish Chandra and his aunt and her son Ram Lakhan and other villagers Chhotey Lal and one Har Dayal came to the spot. In the meanwhile, these Machlu, Ganga Ram, Jamuna, Munau alias Munni Lal, Moti and Rajau started beating his father Shyam Lal and uncle Hardwar with axe and lathis. It is further alleged that they used the half gun and the country made pistol. The two persons fell down because of the injuries and Gur Prasad ran away. He was chased by the accused until far away, but they could not catch him. The aunt of Harish Chandra ran to save, but she was beaten up by lathi and was pushed back. The accused then turned towards the complainant and Ors. to beat them, when they retreated towards the village. They went upto a distance and started shouting. Thereafter it is stated that the father of the complainant and his uncle were beaten up and were dragged up to one place Ram Kunda and at that place, they were killed. It is also stated that the face and the hair on the head of the father of the complainant were burnt. All the villagers and the complainant have seen the accused from a distance killing the deceased and burning them. However, because of fear, nobody went nearby. Thereafter the dead bodies were left at the same place and the accused ran away towards east. The dead bodies were remaining at that particular place. The aunt of the complainant had also received injuries caused by the lathis.

Thus, according to the F.I.R. there was a prior enmity between the complainant and his family members on one hand and the accused on the other. Three factors have been pointed out, as stated in the complaint itself. As far as occurrence of the incident is concerned, it is stated that three persons, i.e., Shyam Lal, Hardwar and Gur Prasad were encircled at the residence of Chotakkey (Carpenter). On listening to their shouts, the complainant, his aunt and her son Ram Lakhan and at least two villagers, Chhotey Lal and Har Dayal came at that particular place. Thereafter it is stated that the persons concerned fell down and were dragged further. The aunt of the complainant tried to follow, but she was beaten and pushed back and all these villagers have retreated. The father and the uncle of the complainant were dragged to a distant place Ram Kunda, where the complainant and the villagers could not follow due to fear. Later on, they found these two persons over there dead and partially burnt.

The prosecution examined eight witnesses to establish its case. They were (1) P.W. 1 Dr. Jitendra Singh, who examined Smt. Tilaka on 29.1.1986 at 9.45 p.m. and prepared injury report Ext. Ka-1 (2) P.W. 2 Harish Chandra, a son of deceased Shyam Lal. He is alleged to be the eye-witness of the occurrence. He is also complainant and has proved Ext. Ka-2 written report (3) P.W. 3 Chottakkey alias Chottey Lal, a Carpenter by profession, and he is also an eye-witness to the occurrence (4) P.W. 4 Smt. Tilaka, wife of deceased Hardwar. She is also an eye-witness and injured witness (5) P.W. 5 Ram Vilas is a witness of recovery of plain soil, bloodstained topi, plastic shoe having bloodstains. He is also a witness of recovery of a white bloodstained kurta from the house of accused-Rajau (6) P.W. 6 Head Moharrir/Sita Ram Pandey, is scribe of F.I.R. Ext. 7, G.D. No. 31 Ext. Ka-8 and Ka-9. According to him, the case was registered on 28.1.1986 at 15.30 (7) P.W. 7 Inspector O. P. Verma, is the Investigating Officer of the case. He recorded the statement of the witnesses and had also prepared the site plan after making spot inspection and after completion of investigation, charge-sheet against the accused persons was submitted by him, and (8) P.W. 8 Dr. S. K. Loothara, who had conducted the post-mortem of the deceased-Shyam Lal on 29.1.1986 at 3.20 p.m. and Hardwar at 4.10 p.m. He has also proved the post-mortem report as Exts. Ka-25 and Ka-26. Harish Chandra-P.W. 2 stated that his house was at the distance of about 15 steps from that of Chotakkey (Carpenter). He has further stated that his father had gone for some work of carpentry to the place of this Chotakkey. In para 20 of his cross-examination, he has stated that he did not see his uncle Hardwar and Gur Prasad going with his father. For the first time when his attention was drawn due to the shouts, what he saw was that his father and Gur Prasad were running and they ran for about 10-12 steps ahead of the residence of Chotakkey. At that time, Gur Prasad and his father had not received any injury. Behind these two persons, seven accused were running and their names are given, as Machlu, Munau, Ganga Ram, Jamuna, Mulla, Ram Asrey and Ram Gulam. Amongst them, Machlu was carrying half gun and he fired on his father and Gur Prasad. The firing was made from a distance of about 15-20 steps. Gur Prasad was not injured. Thereafter he has stated that Shyam Lal fell down in the agricultural field of one Badri and the persons concerned started beating him at that particular place. Because of all these actions of these seven persons, Shyam Lal fell down. Thereafter it is stated that though Shyam Lal fell down, he was not fired upon. One Jamuna fired in the air. Thereafter it is recorded in para 21 that he had not seen Shyam Lal being beaten at the door of Chotakkey. With respect to Hardwar, he states that he was beaten up at the distance of 5-6 steps in front of the thatched roof of Chotakkey''s house. He was also not fired upon. He was beaten by lathis and axe. With respect to this assault of Hardwar, he states in para 22 that Rajau hit him by axe and four others hit him by lathis. Their names are not given. He accepts that his aunt did not fall on to Hardwar, but she tried to save him. She was beaten up by lathi. She did not bleed and he did not know about her injury. Thereafter he has stated in para 24 of his cross-examination that after being beaten up, Shyam Lal and Hardwar were being dragged and occasionally they were being pulled up. He has stated that the place where ultimately bodies were found is at the distance of 21/2 to 3 furlongs and on the way, there were farms and barren land. In some of the farms, there were standing crops. He has further stated that there had been a light shower the road on which they were being dragged. Subsequently, he has stated that the rain was after the incident and that it was a light shower. In para 31 of his cross-examination, he has accepted that it is not correct to say that Shyam Lal was dragged from the door of Chotakkey and that he was killed in the field, is the correct fact.

The next witness, i.e., P.W. 3 is Chotakkey (Carpenter). Outside of his residence, this incident is supposed to have taken place. It is material to note that he was not available on the date of the incident to record his statement u/s 161 of Cr. P.C. He had run away from the spot after the incident and after 11 months, he turned up into the Court to give his deposition. It has come in his deposition that there were some 12 persons. They were carrying the half gun, lathis and axes, and they threatened that they will not permit the dadagiri of the deceased and the deceased were beaten up at that particular place. When the fighting started, he went towards his house and locked it, and went to the residence of his in-laws.

The third material witness examined by the prosecution was of course, aunt of this Harish Chandra, i.e., one Smt. Tilaka-P.W. 4, wife of Hardwar. She states that her husband was beaten outside the residence of Chotakkey (Carpenter) and thereafter he was dragged further. She states that when they started beating Hardwar, she went to save him, but she was beaten and pushed back. She states that her husband was dragged upon to a place known as Ram Kunda. After the accused ran away, she went to that particular place, where the two dead bodies were found. She accepts that Chotakkey (Carpenter) ran away after the fighting started outside his residence. She also accepts in para 5 of her cross-examination that she had not seen the deceased being burnt since she was not at that particular place. In para 10 of her cross-examination, she has stated that when she heard the shouts, her attention was attracted to what was happening and she saw Shyam Lal and Gur Prasad were running. She had not seen them sitting outside the residence of Chotakkey. When she saw them, they were in the field of one Badri. In para 11, she states that nobody went nearby the place where Shyam Lal was killed because of fear. She subsequently states that Shyam Lal was killed in the field of Badri and Hardwar was killed outside the door of Chotakkey. She accepts that her husband was fired upon twice. Subsequently, in para 14, she states that she was pushed behind, but she still went following this group at the distance of about 5 steps towards Ram Kunda. Behind her, Harish Chandra was also walking. In para 15, subsequently she states that other villagers Chottey Lal, Har Dayal and Ram Lakhan were also walking behind and that Gur Prasad turned up at Ram Kunda after the accused ran away.

As far as injuries on the bodies of the deceased are concerned, there is no difficulty in accepting that they were serious injuries. As far as Shyam Lal is concerned, there were stated to be some 14 injuries on his body. Injuries No. 1, 2, 3, 8 and 9 are undoubtedly serious enough. Injury No. 1 is incised wound on the neck, more on right side. It is of 8 cm. x 2.5 cm. x vertebra deep. Margins are clean cut. Injury No. 2 is incised wound over left side of head, size 10 cm. x 2.5 cm. It is bone deep. Margins are clean cut. Left parietal bone was also cut, size 6 cm. above the left eyebrow. Injury No. 3 is incised wound over back at the level of T4 and T6 in the mid line, size 6 cm. x 3 cm. It is bone deep. Injury No. 4 is also incised wound over lumber region back, size 7 cm. x 2 cm. It is muscle deep. Margins are clean cut. Injury No. 8 is incised wound over right arm, size 4 cm. x 2 cm. It is muscle deep. Injury No. 9 is incised wound over right elbow joint, size 5 cm. x 1 cm. It is also muscle deep.

As far as Hardwar is concerned, 16 injuries were noted. Injuries No. 1 to 12, 14, 15 and 15A are all incised wounds. Just to mention, injury No. 1 is incised wound over right side head, size 10 cm. x 2.5 cm. It is bone deep. Margins are clean cut. Injury No. 2 is incised wound over right Pinna, size 2.5 cm. x 1 cm. It is cartilage cut through thigh. Injury No. 3 is incised wound over top of head, size 7 cm. x 2 cm. x bone deep 5 cm. above the right eyebrow on opening right parietal bone cut. Injury No. 4 contains three incised wounds over right side of forehead, size 1.5 cm. x .5 cm., 1 cm. x .5 cm., 1 cm. x 1.5 cm., 1 cm. above the right eyebrow. Margins are clean cut. It is not necessary to say anything more than that the injuries were quite sufficient to cause death of the two persons. The injuries were undoubtedly caused by sharp weapon. There is, however, no firearm injury on the body of either of the two deceased.

As far as witness Tilaka is concerned, she has received two injuries on her person, one on the outer side of left elbow and one on the back. The first one is of the size of .6 cm. x .75 cm. and the other is 9 cm. x 8 cm. One is abrasion and other is contusion. It is relevant to note that she has been medically examined on the next day of the date of the occurrence. No bloodstained clothes of her have been collected. Dr. Jitendra Singh-P.W. 1 has deposed about her medical examination. Amongst other statements, he has stated that the first injury can be caused by one''s fall on the floor and both can be self-inflicted. Doctor Loothera was examined as P.W. 8. He has deposed about the injuries on the bodies of the two deceased. He had conducted the post-mortem. What is most important is that, in his evidence, he has in terms stated that if the injuries on the bodies of the deceased are seen, it is not possible to say that they were dragged for about 2 furlongs. He has further stated that if they were so pulled along the surface of the land, the skin and the flesh would have come out and skin would have been seen removed and vanished from different parts of the body. It is also relevant to note that at Ram Kunda, one shoe was collected on which some bloodstains were seen, but they were stated to be incapable of chemical analysis. There is one more factor to be noted, namely, that none of the accused was arrested on the date of the incident, or immediately thereafter. They have all of them surrendered before the Court sometimes in the month of February, ranging from 4th, 7th, 12th, 18th and 24th of February, 1986. No recovery of any weapon has been effected from any one of them. A bloodstained shirt is stated to have been recovered from the thatched hut of Rajau. But no chemical analysis has been done with respect to the blood found on the shirt of this Rajau. Samples of bloodstained soil were collected from Ram Kunda, but it was not sent for chemical analysis. None of the other villagers, who are stated to have followed Smt. Tilaka, have been examined.

The defence of the accused has been of denial. It has been argued on their behalf that the deceased were dacoits and it has been stated in the F.I.R. itself that there was an enmity between the two groups consisting of the deceased on the one hand and the accused on the other. One civil proceeding concerning consolidation of land was already going on between Rajau and Moti on one hand and Hardwar on the other. It is contended that because of this past background, although the accused had nothing to do with the murder of the two deceased, they have been falsely implicated and charged with murder. The learned Judge of the trial court has accepted the testimonies of P.W. 2-Harish Chandra, Chotakkey (Carpenter)-P.W. 3, Smt. Tilaka-P.W. 4 as well as the witness in support of the recovery, one Ram Bilas, as P.W. 5, and has held that it is proved beyond doubt that Shyam Lal and Hardwar alongwith with Gur Prasad were targeted by an unlawful assembly, which consisted of the above named 12 accused and that they have subsequently done away with Shyam Lal and Hardwar. The learned Judge has declined to accept the contradictions in the statement of the eye-witnesses and has held that the same will not be a ground to reject their testimonies. He has, therefore, held them guilty of the charges, as pointed out above, and imposed the sentences as mentioned earlier.

From the material on record, there are two parts of the event leading to the murder of the two persons. The first is what is stated to have happened outside the residence of Chotakkey. There are supposed to be three witnesses for this event. As far as Chotakkey (P.W. 3) is concerned, for accepting his presence, his statement in the Court recorded after 11 months after the event will have to be accepted. For accepting the presence of Smt. Tilaka (P.W. 4), the two minor injuries on her body are attributed by the prosecution to the lathi blows. However, Harish Chandra (P.W. 2) has stated that he did not know about her injury. For the presence of Harish Chandra and Smt. Tilaka at the time of the first part of the event, we have to rely on their statements only.

As far as the second part of the event is concerned, the statement of Harish Chandra and Smt. Tilaka is that the two victims were dragged to Ram Kunda which is at a distance of two furlongs from Chotakkey''s house and later on the bodies of the two victims were found over there. They have not seen as to what happened at Ram Kunda since they could not follow them due to the fear and the threats by the assailants.

It has come on record that apart from Harish Chandra and Tilaka, who are son of the deceased-Shyam Lal and wife of the deceased-Hardwar respectively, one Ram Lakhan, Chottey Lal and Har Dayal were available at the place of occurrence near Chotakkey''s house and have also claimed that they followed the assailants for sometime. They have not been examined. Chotakkey (Carpenter), outside whose house, the incident has taken place ran away after the incident, and only turned up after 11 months. Thus, we have the testimonies of only Harish Chandra and Tilaka. Both of them say that some of the accused arrived at the residence of Chotakkey and attribute them as carrying lathis, axes and half gun. As far as Tilaka is concerned, she accepts that when she went to save her husband, she was beaten up and pushed back and then her husband was dragged to Ram Kunda. She has also accepted that she was not at the place, where they were ultimately murdered and parts of their bodies were allegedly torched. Her testimony can be only relevant to the extent as to what happened outside the residence of Chotakkey (Carpenter). As far as what happened to her at that place, Harish Chandra has stated in para 22 that his aunt did not fall on to Hardwar, when she was beaten up. She ran to save him, but she was beaten up by lathi and that she has not received any bleeding injury. He did not know about her injury. As far as 12 persons coming on the spot and encircling Shyam Lal and Gur Prasad is concerned, she has stated that her attention had gone to them only when they shouted. When she saw, they had gone much ahead towards the agricultural field of Badri. It is to be noted that although some of the accused were carrying firearms, there is no firearm injury, although it is claimed that at some place, there was firing. As far as Shyam Lal being killed, in para 11 of her cross-examination, she has stated that the place where he was killed, nobody could go because of fear. She has stated that he was killed in the field of Badri and thereafter dragged.

As far as Harish Chandra is concerned, he has stated that his father was dragged and beaten in the field of Badri. However, as far as his attention being drawn to the occurrence is concerned, he says that when he first saw his father and uncle Gur Prasad running, at that time, they had received no injury and seven of the accused were running after them. Even as per the version of the Harish Chandra, he was not at the place where ultimately these two persons were supposed to have been murdered, namely, Ram Kunda. In fact, as per the F.I.R. also when two persons were dragged, the others developed a fear and they retreated towards the village.

From what is narrated above, it is clear that if the presence of Harish Chandra (P.W. 2) and Smt. Tilaka (P.W. 4) is accepted, at the highest, they are witnesses to what has happened outside the residence of Chotakkey (Carpenter), or for some distance thereafter. Even according to their own versions, they were not at the place where finally two persons are stated to have been done away with. It is also clear from their versions that though some of the persons were carrying firearms and though there was firing, none of the victims have any firearm injury though the firing was from a close quarter. The deceased have been dragged over a distance of 2 furlongs and as per the evidence of the Dr. Loothera (P.W. 8), there is no injury, which can explain this dragging. At the place where the two persons have been killed, some blood samples were collected, but the prosecution had not clinically examined those blood samples, so as to establish that that blood was that of the deceased. So much so that the bloodstains on the shirt of Rajau have also not been subjected to any chemical analysis. It is also clear that no weapons have been found, which obviously could not be found, inasmuch as the accused have surrendered much later.

In this state of affairs, it can only be said that Harish Chandra and Tilaka, at the highest, were witnesses to a part of the incident and not the entire one. Thereafter, if the case of the prosecution is to be established, it will mean establishing it on the basis of some kind of circumstantial inference. For that purpose, the dragging of two persons, as claimed, will have to be established by showing injuries on their bodies. Those injuries are not seen. The fact that the two victims were killed at Ram Kunda, is also not established on the basis of chemical analysis of the blood collected at that particular spot. Therefore, at the highest, from what is stated by Harish Chandra and Tilaka, it can only mean that two deceased were encircled outside the residence of Chotakkey (Carpenter). It is stated that they were beaten up over there. However, whatever these two witnesses are saying is not corroborated by any material on record. If the two victims were dragged, there would have been injuries on the bodies of two persons. If they were killed at that particular place, as claimed, the chemical analysis would have shown the co-relation between the blood collected and the blood of the deceased. That chain has not been established by the prosecution.

As against this, the case of the accused has been that they are innocent and the deceased were dacoits. There was an enmity between the group led by the deceased and the accused, and, therefore, they have been involved and charged, though they have nothing to do with the murder of the two victims. Alternatively, it is submitted that the prosecution has failed to establish the charge. In any case, the kind of evidence undoubtedly leads to suspicion as to whether the accused had committed the offence as claimed and they be given the benefit thereof.

The learned Government Advocate relied upon the observations of the Apex Court in State of M. P. v. Dharkole alias Govind Singh and Ors., in 2005 Cr LJ 108: 2005 (1) ACR 471 (SC)and particularly paragraph 11 thereof, as to in which situation, doubts could be said to be reasonable. This paragraph reads as follows :

Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or merely possible doubt ; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case.

As seen from the aforesaid quotation, the doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, but it is also stated therein that the doubt has to be a fair doubt and based upon reason and commonsense, and it must grow out of the evidence of the case. He submitted that there was no reason to discard the evidence of P.W. 2 and P.W. 4 merely because they were relatives of the deceased. In his submission, they have stated what they have seen and the learned Sessions Judge was right in accepting their testimonies.

A judgment of the Apex Court in the case of V. Vijay Kumar Vs. State of Kerala, , lays down as to what approach one must have towards circumstantial evidence. In paragraph 6, the Apex Court has observed that as to in which circumstances, such evidence can be said to be establishing the guilt beyond reasonable doubt. In this connection, we must note that to justify an inference of guilt, the circumstances must be incompatible with the innocence of the accused and incapable of any other explanation.

In our view, the chain can established in the present case only if the dragging of the deceased is established, which undoubtedly the prosecution has failed to establish. The relationships between the parties were strained. In a village, where there were 50 or 60 families, none has turned up to support the case of the prosecution, except the widow of one of the deceased and son of another deceased. The learned Government Advocate has undoubtedly submitted that there is no reason to discard the evidence of the injured wife of the victim and has relied upon the judgment of the Apex Court in the case of Smt. Dharamwati Vs. Jaibir and Another, to the same effect.

At the same time, in the facts of the present case, in our view, when there are clear two possibilities, one cannot presume that on the basis of mere possibility, the guilt is established. There is a clear difficulty in accepting the story of the prosecution upto the hilt and in a situation like this, the benefit of doubt will have to be given to the accused. The presence of P.W. 2 and P.W. 4 at the first part of the event is doubtful. Even if, we accept their presence, at the highest, it will mean that the two victims were encircled and chased. The dragging of the victims is not established. P.W. 2 and P.W. 4 have not seen as to what happened at the distance of two furlongs. Whether the murder took place at Ram Kunda is also not established since the bloodstained soil collected over there is not clinically examined. No arms are collected from any of the accused and the bloodstains on the shirt of one accused one Rajau (since deceased) have not been analyzed. Thus, there is no adequate material to link the accused to the offence alleged. As against that there is every possibility as claimed by the accused that they have been involved only because of their past enmity with the deceased, who were dacoits and who might have been killed in some other episode.

For the reasons stated above, the appeals will have to be allowed. Therefore, the judgment and order of the learned trial Judge is hereby quashed and set aside. The conviction and sentence of all the Appellants is set aside. The bail bonds will be cancelled and the sureties will be discharged. The appeals are thus allowed.