Manphool vs State of Haryana

S.K. Jain, J.

Fact of this case lie with in a narrow compass. On 9.10.1986 one Mohinder Singh son of Lal Chand brother of Tam Sarup @ Sarup Singh son of Gobind Ram resident of village Indasar, District Churu, Rajasthan (deceased in this case) lodged FIR No. 81 in Police Station Siwani District Bhiwani under Section 304 A IPC to the effect that on the night intervening 8th and 9th of October, 1986 his uncle Ram Sarup driver on the truck of Kulbir son of Manphool was run over by the truck near the house of Manphool and had died.

After two months, i.e. on 9.12.1986 Chandgi Ram brother of the deceased Ram Sarup filed a complaint under Section 302/34 201, 506/149 IPC. Against Manphool, his sons Kulbir, Nikka Ram and Sat Pal; Dev Karan son of Ganesha and his sons Parshotam and Jai Parkash; Chander Parkash son Sohan Lal; Pat Ram son of Hem Raj and his sons Baldev and Ram Bilas; and Bhajna, alleging that on the night intervening 1st and 2nd of September, 1986 they had committed the murder of Ram Sarup, took his dead body to the cremation ground of village Indasar in a tractor and cremated the same.

Learned Magistrate recorded preliminary evidence in complaint case, clubbed it with challan case FIR No. 81 of 9.10.1986 and committed both of them to the Court of Sessions.

On his turn the learned Additional Sessions Judge, Bhiwani vide his order dated 21.12.1988 charged the accused on the same date as under :

(i) Accused Manphool, Kulbir, Nikka Ram and Sat Pal were charged firstly, under Section 302 read with Section 34 IPC and secondly, under Section 506 read with Section 35 IPC.

(ii) All the accused persons were charged under Section 201 read with Section 149 IPC.

Through this revision petition the abovesaid order and charge framed against accused is sought to be quashed.

I have heard the learned counsel for the parties and have gone through the record of the case.

In Union of India v. Prafulla Kumar Samal and another, AIR 1979 SC 366 : 1979 Crl LJ 144, their Lordships of the Supreme Court after considering State of Bihar v. Ramesh Singh, AIR 1977 SC 2018; K.P. Raghavan v. M.S. Abbas, AIR 1967 SC 740; and Alamohan Dass v. State of West Bengal, AIR 1970 SC 863 have been pleased to observe that in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court any basic infirmities appearing in the case and so on.

I shall now apply the above principle to the present case in order to find out whether or not the learned Additional Sessions Judge was legally justified in framing the charges against the 12 petitioners.

A reference to the material on record shows that there are basic infirmities appearing in the case and the total effect of the preliminary evidence comprised of the statements of PW1 to PW 10; FIR dated 9.10.1986; and application exhibit PA of Sheesh Pal dated 18.9.1986; similar application exhibit PB of Ram Sarup, Atma Ram and one Gori Ram dated 27.9.1987; and application of Chandgi Ram exhibit PJ of 2.10.1986, is to the effect that if the said evidence is generally accepted would not reasonably cannect the accused with the crime.

For the first time, on 18.9.1986, Sheesh Pal, PW7 moved application exhibit PA to Chief Minister, Haryana wherein it was mentioned that on 2nd of September 1986 at about 11.00 PM Manphool son of Lal Chand and his sons Kulbir and Sat Pal had committed the murder of Ram Sarup son of Gobind Ram in their house by giving him laihi blows. They removed his dead body on the tractor of Dev Karan to the cremation ground of village Indasar. The uncle and brother of the deceased were called and told that Ram Sarup had died in an accident. Thereafter, they had cremated the dead body. It is further mentioned therein that Chander son of Sohan Lal, Dev Karan son of Ganesh, Parshotam and Jai Parkash son of Dev Karan, Budh Ram son Hem Raj, Baldev son of Pat Ram, Bhajna son of Budh Ram, Ram Bilas son of Pat Ram had accompanied them and the dead body to the cremation ground of village Indasar. But when the applicant Shesh Pal appeared as PW7, he stated that he was informed a few day after September 2, 1986 by Ram Sarup, son of Mukh Ram that Mahphool and his three sons had committed the murder of Ram Sarup son of Gobind (deceased of this case). The, he had changed his version materially inasmuch as he had included the name of Nikka Ram also with Manphool, Kulbir and Sat Pal. Secondly, before the Magistrate he did nto name any other person except Chander Parkash and Dev Karan to have accompanied the four accused to village Indasar but in the application exhibit PA, Parshotam, Jai Parkash, Pat Ram Baldev, Bhajna and Ram Bilas have also been named to have accompanied the principal accused.

Chandgi Ram, PW 1 is the real brother of Ram Sarup, deceased. On 2.10.1986 he moved an application exhibit PJ to the Chief Minister, Haryana and others to the effect that on the night of September 2, 1986, Manphool and his three sons namely, Kulbir. Sat Pal and Nikka Ram had killed Ram Sarup in their house. They took his dead body in a tractor to the cremation ground of village Indasar. They called him (Chandgi Ram), Puran, Jug Lal, Hem Raj and Sheo Chand and told them that Ram Sarup had died in an accident whereafter the dead body was cremated. 15/20 days after the occurrence Ram Sarup son of Mukh Ram had told him that he had informed Sheesh Pal, son of Raju that he had come out in the lane at about 11.00 PM in order to urinate and had heard the shrieks of Ram Sarup. After some time the shrieks subsided and at about 2 AM his dead body was removed in a tractor. But when he appeared before the Magistrate in preliminary evidence as PW1 on 2.1.1987 he did not depose so.

Ram Sarup and Atma Ram PW 2 and PW 8 had moved an application exhibit PB to Chief Minister, Haryana and others on 27.9.1987 wherein name of Sat Pal has not been mentioned. The version given in this application is that on the night of 2.9.1986 Manphool, Kulbir and Nikka Ram were beating Sarup Singh (Ram Sarup son of Gobind) who was crying for help. After killing him, his dead body was removed in a tractor to the cremation ground of village Indasar and was creamed. He had narrated this occurrence much later. None of these two witnesses who were examined as PW2 and PW8 on 22.1.1987 and 10.10.1987 respectively is an eyewitness.

Mohinder Singh, PW5 who is the son of the brother of deceased Ram Sarup had made a statement to the police at 7.15 PM on 9.10.1986 vide DDR No. 16 on the basis whereof FIR No. 81 was recorded in police station Siwani, to the effect that early in the morning womenfolk of the house of Dev Karan had come to the Nohra to milk the cows and buffaloes and that they were talking that Ram Sarup (deceased) had died last night i.e. on the night intervening 8th and 9th of October, 1986 near the house of Manphool by having been run over by a truck and that he had informed his uncle Chandgi accordingly.

Mohinder Singh was examined in preliminary evidence before the Magistrate as PW5. Therein he changed his venison and stated that Ram Sarup who was his uncle had been murdered by Kulbir Singh etc. and that he had not lodged any FIR to the effect that he had died in an accident. But perusal of para 13 of the complaint dated 9.2.1986 shows that even the complainant Chandgi Ram had admitted that Mohinder Singh had lodged the FIR No. 81 dated 9.10.1986, although his case is that it was got done from him under coercion by the accused.

Perusal of the order dated 21.12.1988 passed by Additional Sessions Judge, Bhiwani shows that he had not taken into consideration the statements of the PWs including these of Chandgi, complainant, Mohinder Singh who is the author of FIR No. 81 of 9.10.1986, Lal Chand, Sheo Chand and Puran, recorded by the police under Section 161 Cr.P.C. although these witnesses had been cited in the complaint and had been examined in preliminary evidence before the Magistrate.

According to Chandgi Ram, PWD, Amar Singh and Ram Chander had informed him about the occurrence but none of them was examined as a witness and hence the testimony of Chandgi had been rendered hearsay only.

In the absence of oscular account of the occurrence and the postmortem report showing the cause of death, it is not possible to hold that there was prima facie evidence that death of Ram Sarup, even if the version of the complaint is taken at its highest, was homicidal.

It is not understood as to how the version in the complaint that after killing Ram Sarup the accused had taken his dead body to the village of the deceased called his close relatives and had then cremated the dead body, could be believed.

In nutshell :

(i) oral evidence stood contradicted by the documentary evidence;

(ii) according to the FIR No. 81, Ram Sarup had died in an accident on the night intervening 8th and 9th October, 1986 but as per the complaint he was murdered by Manpool and his sons on the night intervening 2nd and 3rd of September, 1986,

(iii) Nikka Ram @ Rai Sahib son of Manphool has not been named in the application exhibit PA dated 8.9.1986 to have joined hands with his father Manphool and brothers Kulbir and Sat Pal in the commission of the crime. It was later on that his name was also introduced; and

(iv) that if the complainant''s version is believed even then there is not even an iota of Prima facie evidence on record to show that the accused Nos. 5 to 12 had the knowledge or reason to believe that the death of Ram Sarup was homicidal.

As a sequal to the above discussion irrestible conclusion is that the trial Judge has not applied its mind to the material before him and had acted mechanically in framing the charge against the accused. Resultantly, the impugned order and the chargesheet dated 21.12.1986, are quashed.

JUDGMENT accordingly.