Ram Bharosey (in Jail) vs State of U.P.

U.S. Tripathi, J.—This appeal has been directed against the judgment and order dated 28.7.1981, passed by the then VII Ith Additional Sessions Judge, Etah, in Sessions Trial No. 165 of 1981 convicting Appellant Ram Bharosey under Sections 302, I.P.C. and 201, I.P.C. and sentencing him to undergo imprisonment for life u/s 302 and R.I. for a period of one year u/s 201, I.P.C. Both the sentences were ordered to run concurrently.

The prosecution story, briefly stated, was that the Appellant Ram Bharosey, Umesh Chandra (P.W. 1) and his younger brother Dinesh (9) deceased, were residents of village Kamalpur Mai, P. S. Sakeet, district Etah. Father of Umesh Chandra (P.W. 1) had died some 8 years ago leaving behind his 5 sons. Dinesh (9) deceased was youngest amongst his brothers. His three elder brothers Mahesh Chandra, Suresh Chandra and Girish Chandra were living at Firozabad. Dinesh deceased along with his brother Umesh Chandra (P.W. 1) and mother was residing at village Kamalpur Mai.

During consolidation operation, a well of Umesh Chandra (P.W. 1) had gone into chak of Ram Bharosey Appellant and the Appellant Ram Bharosey had to pay its compensation to Umesh Chandra (P.W. 1) and his brothers. But he did not pay the same. Therefore, Umesh Chandra and his brother had filed a suit and then Ram Bharosey paid compensation. On account of it, there was enmity between the parties. A year before the occurrence, Ram Bharosey Appellant had beaten Mahesh Chandra elder brother of Umesh Chandra (P.W. 1).

On the evening of 24.2.1981 at about 4 p.m. Dinesh deceased was playing in the village. Umesh Chandra (P.W. 1) returned from school at 5 p.m. and did not find Dinesh deceased at his house. He searched him in the village and in the nearby fields, but he could not be traced. On the next morning Umesh Chandra (P.W. 1) and his mother were again searching Dinesh deceased. At about 10 a.m. when Umesh Chandra (P.W. 1) reached near the house of Ajay Pal (P.W. 2) and Mahendra Singh (P.W. 6) they told him that on the previous evening at about 5 p.m. they had seen Ram Bharosey Appellant and his son Aaram Singh taking Dinesh deceased towards village Noorpur. Thereafter, Umesh Chandra (P.W. 1) taking Kitab Singh (P.W. 3), Lalta Singh (P.W. 4) and Ram Khilaf went to the house of Ram Bharosey and enquired from him about Dinesh deceased. Firstly he did not tell any thing, but on pressure laid by the villagers Ram Bharosey told that he and his son Aaram Singh had cut Dinesh deceased with khurpi and threw him into the well of Tara Singh, Pradhan. Thereafter, Umesh Chandra (P.W. 1) along with other persons went to the well of Tara Singh in which dead body of Dinesh deceased was seen. The dead body was taken out from the well. It had injuries and there were cut marks on ear and neck. Leaving the dead body at the well Umesh Chandra (P.W. 1) came to his house and prepared report (Ext. Ka-1). He went to police station Sakeet along with Kishan Lal, Ram Khilaf and Pratap Singh and lodged report there at 7.10 p.m. on 25.2.1981. The chik F.I.R. (Ext. Ka-10) was prepared by head constable Karan Singh, who made an endorsement of the same at G.D. report and registered a case against Ram Bharosey and his son Aaram Singh under Sections 302 and 201, I.P.C.

The investigation of the case was taken up by the Hira Lal Sharma, Investigating Officer, (P.W. 7). He proceeded to the village of occurrence on 25.2.1981 along with Station Officer, Onkar Singh. The dead body of deceased was lying at the house of Umesh Chandra (P.W. 1) where Hira Lal Sharma conducted inquest of the dead body and prepared inquest report (Ext. Ka-3) and other relevant papers. He sealed dead body and sent it for post-mortem.

The Investigating Officer interrogated witnesses on 26.2.1981. He inspected place of occurrence and prepared site plan (Ext. Ka-8). On completion of investigation Onkar Singh submitted charge-sheet (Ext. K-8) against Ram Bharosey and Aaram Singh.

Cognizance of the case was taken up by the Magistrate, who committed the case to the Court of Sessions.

The Appellants Ram Bharosey and his son Aaram Singh were charged with the offences punishable under Sections 302 and 201, I.P.C. They pleaded not guilty and contended that they were falsely implicated on account of enmity and witnesses were relatives of the complainant.

The prosecution in support of its case examined Umesh Chandra (P.W. 1) Ajay Pal (P.W. 2), Kitab Singh (P.W. 3), Lalta Prasad (P.W. 4), Dr. Raja Ram (P.W. 5), Mahendra Singh (P.W. 6) and Hira Lal (P.W. 7). The Appellants did not adduce any evidence in their defence.

The learned Sessions Judge on considering evidence of the prosecution held that the prosecution had proved that the Appellant Ram Bharosey had motive to commit murder of Dinesh deceased ; the deceased was last seen in the company of Appellant Ram Bharosey at about 5 p.m. on the date of occurrence ; Ram Bharosey made extra-judicial confession before Umesh Chandra (P.W. 1), Kitab Singh (P.W. 3) and Lalta Prasad (P.W. 4) and dead body was recovered from the well of Pradhan, where the Appellant Ram Bharosey had thrown it. Therefore, the chain of circumstantial evidence is so complete as to exclude every other hypothesis save the one that accused Ram Bharosey is guilty of the offences punishable under Sections 302 and 201, I.P.C.

With these findings he convicted Appellant Ram Bharosey under Sections 302 and 201, I.P.C. and sentenced him as mentioned above. However, he acquitted Aaram Singh as there was nothing on record to show as to what part he played in the murder of deceased.

Aggrieved with his above conviction and sentence, the Appellant has come up in this appeal.

We have heard Sri A. B. L. Gaur, learned Counsel for the Appellant and the learned A.G.A. for the Respondent and have perused the entire evidence on regard.

In this case, there is no direct evidence and the case is based on circumstantial evidence. The conditions precedent, in the words of the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, before conviction could be based on circumstantial evidence, must be fully established. They are:

(1) The circumstances from which the conviction of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established ;

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty ;

(3) The circumstances should be of conclusive nature and tendency ;

(4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

The prosecution has relied on following circumstances:

(1) The Appellant Ram Bharosey had motive to murder the deceased.

(2) The deceased was last seen in the company of Appellant Ram Bharosey at 5 p.m. on 24.2.1981 and thereafter, he was not seen alive.

(3) The Appellant Ram Bharosey made extra-judicial confession on 25.2.1981 before Umesh Chandra (P.W. 1), Kitab Singh (P.W. 3), Lalta Prasad (P.W. 4) that he murdered deceased and threw his body into the well of Pradhan Tara Singh.

(4) The dead body of Dinesh deceased was recovered from the well of Tara Singh, Pradhan the place where Appellant Ram Bharosey threw it.

It is to be considered, whether the above circumstances have been established and the above circumstances taken together complete the chain of circumstances leading to the hypothesis of guilt of Appellant and excluding hypothesis of his innocence.

Before considering the above circumstances, it is relevant to refer that the Appellant had not disputed the death and cause of death of Dinesh deceased. The ocular witnesses stated that dead body of Dinesh was recovered from the well of Tara Singh, Pradhan. Dr. Raja Ram (P.W. 5), who conducted autopsy on the dead body of deceased found following ante-mortem injuries on the person of the deceased:

(1) Stabbed incised wound 6 cm. x 1 cm. x bone deep, 7 cm. and 1 cm. x bone deep on the left temporal region 2 cm. away from the outer angle of left eye brow. Margins clean cut.

(2) Incised wound 2 cm. x 1 cm. x scalp deep on the left side head 6 cm. above the injury No. 1 Margins clean cut.

(3) Incised wound 1-1/2 cm. x 1/2 cm. x nasal bone cut on the right side of nose 1 cm. below the inner angle of right eye. Margins clean cut.

(4) Abrasion 4 cm. x 1 cm. on the front of lower part and middle part of left chest.

(5) Abrasion 1-1/2 cm. x 1 cm., 3 cm. above and on the left knee joint.

(6) Abrasion 1 cm. x 1/2 cm., 3 cm. above and on middle of the left knee joint.

He further stated that internal examination showed that all the layer of scalp cut through under injury No. 1 Ecchymosis present under injury Nos. 1 and 2. Membranes were congested. Brain was congested and deeply ecchymosed. No mud no congestion found in the trachea and larynx. There was no congestion in oesophagus. Stomach was empty. The cause of death was haemorrhage and comma due to ante-mortem injuries.

Dr. Raja Ram denied the suggestion of the Appellant that the ante-mortem injuries of the deceased were caused due to fall in the well. It is also mentioned in the post-mortem report that the dead body was smeared with dried mud. The doctor has further stated that there was no congestion or mud in the trachea and larynx and oesophagus. Both lungs were also normal. There was no symptom of death of deceased by drowning into the well. The presence of incised injuries on the person of the deceased as ante-mortem injuries and cause of death clearly established that the deceased was murdered before throwing the dead body into the well. As such it is established from the evidence on record that the deceased was murdered and thereafter his dead body was thrown into well.

On the point of motive, there is evidence of Umesh Chandra (P.W. 1), who stated that a well belonging to him and his brothers had gone into the chak of Ram Bharosey and Appellant had to pay its compensation to him and his brothers. Ram Bharosey did not pay compensation, therefore, a case was filed and thereafter, Ram Bharosey paid the compensation. On account of it, Ram Bharosey was having enmity with him and his brother. That a year before the occurrence of this case, Ram Bharosey has beaten his brother Mahesh Chandra. Though, prosecution has not filed any documentary evidence regarding above motive, but there is no cross-examination on the above evidence of Umesh Chandra (P.W. 1), which shows that the motive stated by Umesh Chandra (P.W. 1) has not been challenged and not rebutted. Non-lodging of the report of beating is also not fatal to the prosecution as in villages, the people do not lodge report of trifling matters. Therefore, the prosecution has established that Appellant Ram Bharosey had motive.

On the point of last seen, there is evidence of Ajay Pal (P.W. 2) and Mahendra Singh (P.W. 6). Ajay Pal (P.W. 2) stated that on the evening of occurrence at about 4 p.m. he was operating engine of his tube-well installed in his field, which was adjacent to the field of Mahendra Singh (P.W. 6). Mahendra Singh (P.W. 6) was taking irrigation water from his tube well. At about 5 p.m. he saw Ram Bharosey and Aaram Singh taking Dinesh deceased, younger brother of Umesh Chandra (P.W. 1), towards village Noorpur. On next day at about 8-9 a.m. Umesh Chandra (P.W. 1) came to his house and he told him that at about 5 p.m. on the previous evening he had seen Ram Bharosey and Aaram Singh taking Dinesh towards village-Noorpur. In the afternoon at about 3 p.m. he along with other villagers went to the well of Tara Singh and dead body of Dinesh was recovered from the said well.

Mahendra Singh (P.W. 6) stated that on the date of occurrence at about 5 p.m. he was present on his field and Ajay Pal (P.W. 2) was present on his tube well. At about 5 p.m. he saw Ram Bharosey and Aaram Singh taking Dinesh towards village Noorpur. On next day Umesh Chandra (P.W. 1) came to his house and told that his brother was missing. He told him that on the previous evening at 5 p.m. he had seen Ram Bharosey and Aaram Singh taking Dinesh towards village Noorpur.

Learned Counsel for the Appellant contended that Ajay Pal (P.W. 2) and Mahendra Singh (P.W. 6) were interested witnesses as they were relatives of complainant and that they had also changed their version told before the Investigating Officer and therefore, were not reliable. It was suggested to Ajay Pal (P.W. 2) that a quarrel had taken place between him and Ram Bharosey on account of taking water from tube well. But he repelled the above suggestion. It was also suggested that he was relative of Umesh Chandra but the witnesses denied the above suggestion. There is nothing on record to show that the witness was in any way inimical with the Appellant or had any reason to depose falsely against him. The witness has stated that to the time of occurrence, he was operating his tube well and Mahendra Singh (P.W. 6) was taking irrigation water from his above tube well. He also clarified that there was rasta towards west of his chak and Ram Bharosey and Aaram Singh were seen taking Dinesh deceased through said rasta. He also clarified that there was no obstruction in between his tube well and the rasta as wheat and pea crop were up to height of 2 or 3 feet only. There was no arhar or mustard crop in his field. However, the witness denied to have told before the Investigating Officer that at the time when he saw the Appellant taking Dinesh, he was coming from jungle. The Investigating Officer had no doubt proved his above statement as (Ext. Kha-1), but above contradiction is not very much material, as there is nothing on record to show that the witness was not present on his tube well on the evening of 24.2.1981 at about 5 p.m. Therefore, we find no ground to disbelieve the evidence of Ajay Pal (P.W. 2).

Mahendra Singh (P.W. 6) stated in his cross-examination that he had told before the Investigating Officer that on the evening of the occurrence he was taking irrigation water from the tube well of Ajay Pal and had not told before the Investigating Officer that on the last evening he and Ajay Pal Singh were coming from jungle. However, he admitted that Ram Bharosey had purchased land of Shivdar, but he denied the suggestion that he was cultivating land of Shivdar and was annoyed with Ram Bharosey on account of purchasing land of Shivdar by him. The contradiction referred to above is not material and does not make his testimony unreliable. No enmity, ill-will or interestedness of the witness appeared from the cross-examination of the witness.

As held by the Apex Court in Bodh Raj @ Bodha and Others Vs. State of Jammu and Kashmir, the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positivity establish that the deceased was last seen with the accused when there is a long gap and possibility of other person coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in these cases.

In this case Appellant Ram Bharosey was last seen in the company of deceased at about 5 p.m. on 24.2.1980. The probable time of death of deceased as given in post-mortem report was two days from 26.2.1981 at 3 p.m. Thus, the time of death taking into consideration the variation of 6 hours comes between 5 and 9 p.m. on 24.2.1981. Therefore, the gap in between last seen and death of deceased was so short (2 or 3 hours only) and it excluded the possibility of any other person coming in between.

From the evidence of Ajay Pal (P.W. 2) and Mahendra Singh (P.W. 6), it is established that Appellant Ram Bharosey was seen taking Dinesh deceased on 24.2.1981 at about 5 p.m. and thereafter Dinesh was not seen alive.

On the point of extra-judicial confession, there is evidence of Umesh Chandra (P.W. 1), Kitab Singh (P.W. 3) and Lalta Parasd (P.W. 4). Umesh Chandra (P.W. 1) stated that when Ajay Pal (P.W. 2) and Mahendra Singh (P.W. 6) told him that they had seen Appellant Ram Bharosey taking Dinesh on the pervious evening, he along with Kitab Singh (P.W. 3), Lalta Prasad (P.W. 4) and Ram Khilaf went to the house of Ram Bharosey and enquired about Dinesh from him. Firstly Ram Bharosey did not tell any thing about Dinesh, but on the pressure laid by the witnesses, he confessed that he had cut Dinesh with khurpi and threw him into the well of Tara Singh, Pradhan. Kitab Singh (P.W. 3) stated that at about 9.10 a.m. Umesh Chandra (P.W. 1) came to his house and told that Dinesh was missing since last evening and Mahendra Singh and Ajay Pal had told that they had seen Ram Bharosey and his son Aaram Singh taking Dinesh towards village Noorpur. Then he along with Lalta Prasad (P.W. 4), Umesh Chandra (P.W. 1), Bharat, Ram Khilaf and others of the village went to the house of Ram Bharosey and enquired about Dinesh from him. Firstly Ram Bharosey did not tell any thing and subsequently on pressure laid by the villagers he confessed that he had killed Dinesh and threw him into the well of Tara Singh. In his cross-examination, the witness admitted that his mother''s sister was married with Lalta Prasad (P.W. 4). Ram Singh was son of Lalta Prasad husband of his mother''s sister. The marriage of Ram Singh was settled with the daughter of Ram Bharosey of village Nagla Naya. He was cultivating land of Umesh Chandra for last 2-3 years. From the above facts it cannot be said that Kitab Singh (P.W. 3) had any reason to depose falsely against the Appellant. It is true that he was cultivating land of Umesh Chandra (P.W. 1), but on account of it he was not expected to depose falsely against the Appellant with whom he had no grudge, ill-will or animosity.

Lalta Prasad (P.W. 4) stated that on the morning of 25.2.1981 at about 8-9 a.m. Umesh Chandra (P.W. 1) came to his house and told that his brother Dinesh was missing from pervious evening and Ajay Pal (P.W. 2) and Mahendra (P.W. 6) had told that Ram Bharosey and Aaram Singh were seen taking Dinesh deceased towards village Noorpur. On it he along with Umesh Chandra (P.W. 1), Kitab Singh (P.W. 3), Ram Swroop and Ram Khilaf went to the house of Ram Bharosey and enquired about Dinesh from him. Firstly, he denied that Dinesh had gone with him, but on the pressure laid by him and others he admitted that he had cut Dinesh and threw him into the well of Tara Singh, Pradhan.

An attempt was made from the side of Appellant that on the morning of 24.2.1981. Lalta Singh (P.W. 4) had gone in a marriage party at village Malahpur and was not present in the village. The witness had no doubt admitted that he had gone to village Malahpur in the morning of 24.2.1981 but he returned on the evening of same day. There is nothing in the cross-examination of the witness to disbelieve his testimony.

From the above evidence of Umesh Chandra (P.W. 1), Kitab Singh (P.W. 3) and Lalta Prasad (P.W. 4), it is established that Appellant Ram Bharosey made extra-judicial confession of murdering Dinesh deceased and throwing his dead body into the well of Tara Singh, Pradhan. His above extra-judicial confession is corroborated by recovery of dead body of Dinesh from the well of Tara Singh as well as the medical evidence of Dr. Raja Ram (P.W. 5) that previously the deceased was murdered by causing incised injuries (by khurpi) and then his dead body was thrown into the well.

Taking above circumstances cumulatively, it was proved that Appellant Ram Bharosey out of grudge against Dinesh and his brothers took Dinesh deceased on the evening of 24.2.1981, murdered him by causing injury by khurpi, and threw his dead body into the well of Tara Singh, Pradhan. There is no explanation from the side of Appellant that after 5 p.m. on 24.2.1981 he left the company of deceased and the deceased was murdered by someone else. If the prosecution proved that the deceased was last seen in the company of Appellant and thereafter, his dead body was recovered from the well of Tara Singh, Pradhan on the clue provided by the Appellant, it was duty of the Appellant to establish that after 5 p.m. on 24.2.1981 he had left the company of deceased. No such explanation has come forward from the side of Appellant.

The above circumstances thus, lead to infer one and the only conclusion that Appellant Ram Bharosey murdered the deceased and threw his dead body into the well, as the possibility that deceased died due to fall in the well has completely been ruled out by the evidence of Dr. Raja Ram (P.W. 5). The chain of circumstances relied on by the prosecution is thus so complete that it established the hypothesis of the guilt of the Appellant and it had also completely ruled out hypothesis of innocence of the Appellant. Therefore, we find no ground to interfere with the conviction and sentence of the Appellant.

The appeal having no force is, accordingly, dismissed.

Appellant Ram Bharosey is on bail. He shall surrender before the C.J.M. concerned to serve out the sentence. C.J.M., Etah, is directed to issue non-bailable warrant against the Appellant to secure his arrest and sending him to jail.

Office is directed to send copy of this order to C.J.M., Etah, for compliance and report within a month.