Rajjan and Others vs State of U.P.

Five persons in all were put up for trial in this murder case and all of them were convicted by IV Additional Sessions Judge, Unnao on 16111979 under Sections 302/149, 148, 452, 201, IPC and were sentenced to life imprisonment and a fine of Rs. 1000/ and in default one year''s R.I. under Section 302/149, IPC, two years R.I. under Section 148, IPC, three years R.I. and Rs. 500/ as fine and in default six months'' R.I. under Section 452, IPC and three years'' R. I. and a fine of Rs. 500/ and in default six months R.I. underSection201, IPC.

All the five convicted persons preferred three appeals; Phool Singh, Lal Kishore and Raja had preferred Criminal Appeal No. 819 of 1979 but during the pendency of appeal, all the three of them died and, therefore, that appeal abated. Criminal Appeal No. 836 of 1979 preferred by Rajjan and Criminal Appeal No. 840 of 1979 preferred by Lalta Prasad are surviving and they are being disposed of by this judgment.

Four out of five appellants were residents of village Patari, policestation Makhi, District Unnao whereas Rajjan appellant was resident of neighbouring village Salempur (Karowan) Police Station Kotwali District Unnao who was related to Raja appellant. There was long standing enmity between the appellants on the one hand and the deceased and his family members on the other. About 1718 years prior to the occurrence, Ram Kumar, the father of Lalta Prasad appellant was murdered for which Sukh Lal deceased, Amar Nath, Hridya Nath and Shyam Nath were prosecuted in which they were sentenced to life imprisonment which they had to undergo. One Puttu Singh was murdered about three years prior to the occurrence. In that murder case, Lalta Prasad Raja and several others were prosecuted. In that occurrence, PW 3 Siddhi Nath brother of the deceased, PW 1 Raja Ram Singh complainant, Shyam Nath, Hridya Nath and Shrawan Kumar were injured. In that case PW 1 Raja Ram Singh complainant, PW3 Siddhi Nath etc. had appeared as witnesses against such of the appellants who were the accused in that murder case and that case ended in acquittal. It is said that an appeal preferred against the order of acquittal was pending at the time of occurrence in this Court. Apart from this, six months prior to the occurrence Shri Pal, real brother of the deceased was said to have been kidnapped from the tubewell and murdered ''by Phool Singh deceased appellant and others regarding which Sone Lai another brother of the deceased had lodged an FIR but trial of that murder case had not begun by the time occurrence had taken place. Phool Singh deceased appellant is said to have robbed Sheo Prasad Bhujwa about two years prior to that occurrence and in that case too Sukh Lai deceased and Hridya Nath had appeared as witnesses against him. Several cases under Section 107, Cr. PC. were also fought out between the parties. It was stated by PW 1 Raja Ram Singh, complainant that after Phool Singh deceased appellant had been released on bail in the murder case of Shri Pal, brother of the deceased, they started bearing illwill against the complainant''s party and specially Sukh Lal.

The occurrence is said to have taken place on 881978 at about 6 a.m. In the Abadi of village Patari. At that time, Sukh Lal deceased with Lata in hand was returning from the open field after answering the call of nature. When Sukh Lal deceased reached the clump of bamboo of Sughar Singh, Phool Singh deceased appellant fired at Sukh Lal in front of his house by gun, Sukh Lal ran for his life in Galiyara (Pathway) towards east. In the meantime, other four appellants and one Neel Kanth out of whom Lal Kishore deceased appellant armed with a rifle and others armed with a gun each came out from the house of Phool Singh where they were hiding and started chasing and firing at Sukh Lal deceased. Phool Singh deceased appellant was exhorting that whatever may be the consequences, Sukh Lal must be killed. It is alleged that PW 1 Raja Ram Singh, complainant, PW 3 Siddhi Nath, brother of the deceased and their family members Soney Singh, Hridya Nath and Amar Nath after hearing the sound of firing proceeded ahead and saw that all the appellants and Neel Kanth were chasing Sukh Lal and were firing continuously. Sukh Lal saw no other except that he ran into nearby house of Mewa Lal. All the appellants and Neel Kanth entered that house. They scolded Mewa Lal and his son and asked them not to come in their way. The appellants murdered Sukh Lal in the Kothari of Mewa Lal by firing at him. Thereafter the appellants tied both the legs of the deceased with rope in order to disappear the deadbody, dragged it for a distance of about 225 paces and put it into the Khalihan of Dabaina Baba. PW 1 Raja Ram Singh, complainant, PW 3 Siddhi Nath, Soney Singh, Hridya Nath, Mewa Lal and Ram Chandra were continuously shouting which attracted Vishan Singh and Shiv Ram of village Atwa and several other persons of the village of the complainant. After seeing the crowd assailants ran away after leaving the deadbody.

Oral report of this case was lodged by PW 1 Raja Ram Singh, complainant on the same day i.e. on 881978 at 8.30 a.m. which was written and recorded by PW 7 Head Contestable Raja Ram Singh who prepared chik FIR.

PW 4 Dr. J.N. Bajpai on 981978 at 4 p.m. performed Autopsy on the deadbody of Sukh Lal. He found the following eleven injuries:

(1) Lacerated wound 3" x 1/2" bone deep on the left side of head 51/2 above left ear.

(2) Gunshot wound of entry 1/3" x 1/3" x cranial cavity deep on the left temporal region which blackening of the surrounding area of the scalp with tattooing margins inverted.

(3) Gunshot wound of exit 2l/2"x 11/2" cranial cavity deep on the right side of face in the region of right check. No blackening or tattooing was present.

(4) Gunshot of entry 1/3" x 1/3" on the front of left palm in the middle with blackening of surrounding area of palm with tattooing. Margins inverted.

(5) Gunshot wound of exit 2" x 1/3" on the back of left palm. Margins inverted. No blackening and tattooing present.

(6) Gunshot wound of entry 1" x 1" x chest cavity deep on the left side of chest. 3" above left nipple with blackening and tattooing of the surrounding skin. Margins of the wound were inverted.

(7) Gunshot wound of entry 1/2" x 1/3" on the inner part of left arm on its middle with blackening and tattooing. Margins inverted and contused.

(8) Gunshot wound of exit 1" x 3/4" on the left arm outer and middle part. Margin inverted. No blackening or tattooing present.

(9) Lacerated wound 2" x 11/4" bone deep in the region of right thumb with amputation of thumb at its base. Bones and soft parts of the thumb base are absent. There was blackening and tattooing around and wound of the right hand.

(10) Two abrasions 1" x 1/2" each on the back in its middle part.

(11) An abrasion 1" x 1/2" on the right side of back 6" below right arm pit.

According to Dr. Bajpai, death was caused by coma, shock and hamorrhage due to antimortem injuries. Out of the injuries Nos. 2 to 9 which are gunshot injuries, injuries Nos. 2, 4, 6 and 7 are gunshot of entry. Injuries Nos. 3,5 and 8 are injuries of exit. All the gunsshot wounds of entry indicate that the firing was done from a close range as all the injuries of entry had blackening and tattooing present around them.

The case was investigated by PW 5, S.I. Shri M.A. Siddiqui who recovered Tahmad, Lota and shoes of the deceased from the Kothari Mewa Lal where the deceased was murdered including pellets and samples of the bloodstained and plain earth from there. Rope was recovered from the Khalihan of Dabaina Baba and samples of the bloodstained and plain earth were also taken from there. He recorded statements of material witnesses and almost completed investigation. However, chargesheet came to be submitted by S.I. Shri Keshav Singh. The case of the appellants was of simple denial. It was stated by them that they had been implicated falsely due to enmity. No evidence was led in defence on behalf of the appellants. The prosecution had examined seven witnesses in all, out of whom PW 1 Raja Ram Singh complainant who is uncle of the deceased, PW 2 Mewa Lal in whose Kothari murder had taken place, PW 3 Siddhi Nath, brother of the deceased, are eyewitnesses but PW 2 Mewa Lal turned hostile and stated that he had not seen who murdered Sukh Lal. P W 6 Brij Kishore is a photographer engaged by the police on contract basis. He had taken photographs of Kothari of Mewa Lal where the murder had taken place and found bullets marks on the wall of the Kothari and blood stains. His testimony is material only to this extent. Other eyewitnesses are formal witnesses regarding which a mention has already been made.

The prosecution case is based on the testimony of three eyewitnesses, namely, PW 1 Raja Ram Singh, complainant, PW 2 Mewa Lal in whose Kothari the murder had taken place and PW 3 Siddhi Nath, brother of the deceased. As mentioned above, Meva Lal turned hostile and did not support the prosecution case and stated that he had not seen who committed the murder of Sukh Lal. This leaves the testimony of PW 1 Raja Ram Singh complainant and PW 3 Siddhi Nath both of whom are not only closely related to the deceased as uncle and real brother but who also had a long standing enmity with the appellants which has been referred to in the beginning of this judgment. In the absence of corroboration by any independent witness their testimony has to be taken with a pinch of salt and has to be scrutinised strictly.

We find that the testimony of PW 1 Raja Ram Singh and PW 3 Siddhi Nath does not stand scrutiny. Both of them stated that after committing the murder of Sukh Lal in the Kothari of Mewa Lal both the legs of the deceased were tied with rope and his dead 7body was carried to a distance of about 225 paces and thrown in the Khalihan of Dabaihna Baba but the postmortem examination does not corroborate this. No mark at all was found by PW 4 Dr. J. N. Bajpai who performed postmortem examination on the ankles of the deceased indicating that he was tied with rope, Dr. J. N. Bajpai stated that where rope was tied, abrasions would positively occur but the postmortem report shows no abrasion on the legs. It was stated by PW 3 Siddhi Nath that when the deceased was being dragged he had only underwear on his body and rest of the body was naked without any cloth. If such a person is dragged through a passage for a distance of about 200 yards, several abrasions and contusions must appear on the body indicating dragging marks. No such dragging marks were found during the postmortem examination. Injuries Nos. 10 and 11 are of course abrasions but injury No. 11 is below right arm pit and two abrasions of injury No. 10 are on the back of its middle part with the size of l" x 1/2" each. This injury alone is not sufficient to prove dragging. Confronted with this situation, an improvement was got made by the prosecution at the time when the witnesses entered in the witnessbox and both PW 1 Raja Ram Singh and PW 3 Siddhi Nath stated that the passage was of sandy lose earth. Similar statement was made by PW 5 S. I. Shri M. A. Siddiqui who had investigated the case but this does not find place in the FIR. Similarly, it does not find mention in the statements recorded under Section 161, Cr. P.C. The Investigation Officer has also not mentioned it either in the site plan or anywhere else. Even if it is presumed for the sake of argument that the passage was of lose sandy earth, still many abrasions and contusions must occur if a deadbody is dragged mercilessly by the assailants for a distance of 200years.

The presence of eyewitnesses PW 1 Raja Ram Singh and PW 3 Siddhi Nath also appear to be doubtful and the prosecution story as it has been given out is also not believable. According to the prosecution as many as six persons were firing continuously in the passage for a distance about 200 yards from the guns and a rifle at the deceased but the deceased did not receive a single injury till he was fired in the Kothari of Mewa Lal. It is clear from the fact that all the firearm wounds of entry were found during postmortem examination bearing blackening and tattooing. When the deceased was fired while being chased he would certainly have received some injuries. Apart from this, PW 1 Raja Ram Singh and PW 3 Siddhi Nath were as much inimical to the appellants as Sukh Lal deceased and yet as many as six persons armed with guns and rifle spared them who were unarmed. It has to be remembered that PW 1 Raja Ram Singh was sentenced to life imprisonment which he had undergone in the murder case of father of Lalta Prasad appellant. Several other murders had taken place between the parties. Besides this it also appears to be highly improbable that these witnesses who were more than six in number would not take any step by way of retaliation or for saving the deceased specially when the occurrence had taken place near their house and the incident was not hit and run giving sufficient time to the witnesses to bring out their arms also. A perusal of the FIR also leaves an impression that it was not a solo effort on the part of Raja Ram Singh, complainant who is an illiterate person. It is a longish FIR describing the incident and the motive etc. in great details not expected from an illiterate person. In fact an offence under Section 201, IPC was sought to be made out in this FIR when it was stated that in order to disappear the body, it was dragged to a distance of about 225 paces.

In view of the above, we find that prosecution was not able to prove guilt against the appellants beyond reasonable doubt and, therefore, both the appeals are allowed. The appellants of both the appeals are acquitted. They are on bail. They need not surrender. Appeal allowed.