Ram Chandra and Others vs State of U.P.

Onkareshwar Bhatt, J.—Appellants, Ram Chandra, Daya Shanker, Lalji and Shambhu Lal have preferred this appeal against their conviction u/s 302/34, I.P.C. They have sentenced to undergo imprisonment for life. The order of conviction and sentence was passed on 2.4.1981 in Sessions Trial No. 391 of 1978 by the then II Ird Additional Sessions Judge, Gorakhpur.

Sri P. N. Misra, learned senior advocate, appearing for the Appellants and the learned A.G.A. for the State have been heard.

According to the prosecution case, informant, Ram Kishun had sweetmeat shop at Asuran crossing near police station Cantt., Gorakhpur. His residential house is near Chhaya Talkies. On 10.7.1978 at 8.45 a.m. informant, Ram Kishun, P.W. 1 was proceeding from his shop on a motorcycle along with his brother, Kastoori, deceased of the case, towards Railway Engine Loco-Shed. Deceased, Kastoori was pillion rider. When they reached near the Loco-Shed, all the Appellants reached there and Appellant Shambhu placed his cycle in front of the motorcycle of the informant, due to which the informant stopped his motorcycle. Thereafter all the four Appellants pulled the deceased, Kastoori, by catching hold the collar of his bushirt, which he was wearing. Appellant, Ram Chandra who was armed with country made pistol fired at Kastoori, but the fire missed. Thereafter Appellants, Shambhu, Lalji and Daya Shanker, who were armed with knives, assaulted Kastoori by knives. When Kastoori was pulled of by his collar, he had fallen on the road which was metalled. In the meantime, Gurumukh Singh alias Nakharu P.W. 3, Sapan P.W. 4, Mahendra P.W. 2 and others arrived there and intervened. The Appellants made good their escape. The informant along with Gurumukh carried Kastoori in an injured condition to Railway Hospital on a Rikshaw. From the railway hospital by means of an Ambulance, Kastoori was sent to the District Hospital, Gorakhpur. The informant and Gurmukh Singh also came to the District Hospital along with Kastoori. At that place, informant, Ram Kishun told Gurumukh Singh to get Kastoori admitted in the hospital and the informant went to lodge the report. In front of the hospital, he got his report typed from a typist, which was lodged at Police Station Cantt. on 10.7.1978 at 10.55 p.m. Kastoori was sent to Medical College, Gorakhpur, from the District Hospital where he was operated upon, but he died in the night. On 10.7.1978 at 9.40 a.m. Dr. I. P. Singh examined the injuries of Kastoori, who was brought before him by Nakharu. The doctor found the following injuries on his person:

(1) Lacerated wound 6 cm. - 1 cm. - bone deep on the forehead just above the right eye with blackish contusion of the whole right upper eyelid, advised X-ray.

(2) Incised wound 3-1/2 cm. - 1 cm. - cavity deep on the left side chest 14 cm. below and outer to left nipple with internal content coming out. Injury kept under observation.

(3) Incised wound 3-1/2 cm. - 2 cm. - muscle deep on the outer aspect of the right arm middle.

(4) Incised wound 1 cm. - 1/2 cm. - skin deep just at the root of the penis lower part.

Memo regarding the death of Kastoori was received at police station Gulahida. Sub-Inspector, Gorakh Nath Singh, P.W. 6, went to the Medical College. He took the dead body in his possession and prepared inquest report and other papers and handed over the dead body to P.W. 9, Constable Vijai Shanker Shukla for taking it to mortuary. On 11.7.1978 at 4.30 p.m. post-mortem examination of the deceased was performed by P.W. 7, Dr. P. N. Awasthi. According to the doctor the deceased was a young man of average built of about 25 years of age. The Doctor found following anti-mortem injuries on the body of the deceased:

(1) Lacerated wound stitched 6 cm. - 1/2 cm. - bone deep on forehead 1 cm. above middle of right eyelid with contusion 8 cm. - 8 cm. all round.

(2) Incised wound 8 cm. - 1 cm. - muscle deep on outer aspect middle of right upper arm.

(3) Incised wound 8 cm. - 1-1/2 cm. - muscle deep on outer aspect middle of right upper arm.

(4) Incised wound 1 cm. - 1/2 cm. - skin deep at the right of under surface of the penis.

(5) Incised wound left paramedial incision 20 cm. long-parietal cavity deep. All layers stitched.

(6) Incised wound 6 cm. to the left umbilicus 2 cm. - 1/2 cm. - parietal cavity deep with drainage tube coming out of it.

On internal examination, right frontal bone linear 3 cm. long oblique under injury No. 1 was found fractured. Clotted blood in parietal bone in injury No. 1 was found. In the cartilages on left 9" cut under injury No. 2 was found. In the left pleural cavity one litre blood was found. In large intestine incised wound 3 cm. - 1/4 cm. spleenic flexar stitched and stitches present under injury No. 2 through and through was found. According to the Doctor, injuries No. 5 and 6 were caused due to operation.

After necessary formalities of investigation, charge-sheet was laid against the Appellants. They have denied the charge and alleged to have been implicated falsely in the offence due to enmity. Appellant, Lalji is an employee in the railway department. Three witnesses, namely, Ram Niwas Tripathi, D.W. 1 Syed Muzaffar Ali D.W. 2, Sikander, D.W. 3 were examined in his defence to prove that on the date of occurrence he was on duty in between 8 a.m. to 4 p.m. as Khalasi in the Loco Engine Shed.

The F.I.R. itself mentioned that old enmity existed in between Ram Kishun, informant P.W. 1, and Appellant Shambhu Nath Gupta. However, this fact has not been stated by Ram Kishun P.W. 1. In his statement, he has mentioned that about a month before the occurrence, Appellant Shambhu Nath and Lalji had quarrelled with deceased Kastoori, at his shop and a marpit in between them had also occurred. He further stated that since thereafter, the Appellants used to abuse the deceased and used to round him up. The motive, part however, is not of much significance when there is direct evidence in the case. The motive, old enmity, set up in the F.I.R. was not stated by Ram Kishun, the informant. The charge of quarrel and marpit as stated by the informant is also not convincing because he stated that he was not present at that time. The fact that the Appellants used to abuse and round up the deceased was not mentioned in the F.I.R. and also in the statement of the witness made before the Investigating Officer u/s 161, Cr. P.C. Ram Kishun has admitted that regarding the fact of hurling of abuses and rounding up of the deceased by the Appellants, he did not make any report nor moved any application. In view of the above discussion, motive as alleged by the prosecution is not proved at all.

Four eye-witnesses have been examined in this case. They are P.W. 1 Ram Kishun, P.W. 2 Mahendra Singh, P.W. 3 Gurumukh Singh alias Nakhru and Sapan Kumar, P.W. 4. According to the prosecution, when Ram Kishun along with his brother, Kastoori, reached near the Railway Loco Shed on the motorcycle, the incident in question took place. Mahendra Singh was not cited as a witness in the F.I.R. He has corroborated the prosecution case to the extent that Ram Kishun who was driving the motor cycle came near the Loco Shed and Kastoori was on the pillion. He has stated that when the motorcycle reached near the Loco Shed, some persons assaulted that pillion rider. He could neither see the assailants nor the weapons by which the assault on pillion rider was made. The witness was declared hostile by the prosecution. P.W. 3 Gurmukh Singh, who owns a tea shop near the Loco Shed, stated that at about 9 a.m. when he was going to his shop, he saw the deceased, Kastoori, lying in an injured condition near the Loco Shed. He too was declared hostile by the prosecution since he did not support its case. P.W. 4 Sapan Kumar stated that the informant and the deceased were coming on a motorcycle. Near the Loco Shed Shambhu Nath, one of the Appellants, placed his cycle in front of the motorcycle of the informant. He stated that a crowd had collected at that place and he could not see the injuries being caused to the deceased Kastoori. He, too, was declared hostile by the prosecution. These three witnesses only corroborated the prosecution case to the extent that the informant and the deceased came near the Loco Shed on the date and time of occurrence and that the deceased was assaulted. However, they did not say by whom and by what weapon assault was caused on the deceased.

The prosecution heavily relied upon the testimony of Ram Kishun, P.W. 1. He was driving motorcycle and the deceased, his brother, was riding the pillion when the incident in question occurred near the gate of the Loco Shed. In the F.I.R. Ram Kishun has mentioned that he was carrying his brother, Kastoori, on the motorcycle and was going to his house via the colony. It has come in evidence that the residential house of the informant is near Chhaya Talkies. In the F.I.R., it is not mentioned from which place the informant was coming. In his statement, Ram Kishun has stated that from his sweetmeat shop, he was proceeding towards the Loco Shed. Admittedly, Ram Kishun had his sweetmeat shop at Asuran crossing. Normally, sale of sweets starts in the morning and there is always a rush there at this hour. It is unnatural that the owners thereof would leave the shop at this hour. It has come in his statement that he was going in the company of the deceased from the Loco Shed side because some loan was advanced by the deceased to a person which remained unpaid and he and the deceased were going to the Loco Shed for making demand of that money. The witness did not name that person to whom the loan was advanced. The witness maintained that his statement that he came to his residential house through the colony is correct and his statement that he and the deceased were going to demand the money from a person was also correct. The witness again stated that on the date of occurrence he was going to the Loco Shed from his residential house. The inconsistency that Ram Kishun was coming from his shop or from his residential house is apparent and these two statements are inconsistent and irreconcilable.

According to the F.I.R., assault on the deceased at the hands of Appellants, Shambhu Nath Gupta, Lalji Gupta and Daya Shanker by knives took place when the deceased was sitting on motorcycle itself. P.W. 2 Mahendra Singh has also stated so. In the F.I.R. there is no mention that the deceased was pulled down from the motorcycle. The deceased had one lacerated wound on the forehead just above the right eye. It was found in the medical examination as well as in his post-mortem examination report as well. Obviously, this lacerated wound could not have been caused by knife. Ram Kishun has stated that when the Appellants pulled Kastoori from motorcycle, he fell down. It has come in the evidence that in front of Loco Shed, there is metalled road. The fact that the Appellants pulled down Kastoori from motorcycle by holding collar of his bushirt is not mentioned in the F.I.R. and the fact that at the time of pulling Kastoori fell down on the metalled road, it appears, was introduced to explain the head injury which is a lacerated wound 6 cm. - 1 cm. - bone deep on the forehead. Ram Kishun has stated that Kastoori fell down on his back on being pulled. He again stated that he fell down on his chest due to which he sustained injury on his eye. Kastoori was wearing bushirt and pant. Ram Kishun further stated that in fallen condition, Kastoori suffered one injury which was near his testicles and when he tried to get up, other injuries by knife were caused to him. Injury No. 4 of the deceased is an incised wound 1 cm. - 1/2 cm. - bone deep just at the root of the penis lower part. This injury, according to Dr. I. P. Singh, P.W. 5, is in lower part at the root. It has been suggested to the doctor that this injury could be caused only when the penis was lifted to which no definite answer was given by the doctor. Ram Kishun in one breadth stated that the deceased fell down on the ground on his back. Realising the folly, he corrected and stated that he fell down on his chest. If the deceased fell down on his chest, then penis of the deceased could not be exposed for any assault. Ram Kishun has maintained that first knife injury caused injury on the penis, i.e., injury No. 4, Ram Kishun alleged that lacerated wound on the head, was caused when deceased fell on the ground faceward. Injury No. 4 could only be caused if the deceased fell on the ground on his back. In both the situations, how injury No. 1 which is a lacerated wound and injury No. 4 which is an incised wound at the root of penis were caused does not fit in with the description of the incident as disclosed by Ram Kishun. According to the case set up in the F.I.R. Appellant, Ram Chandra fired at the deceased when he was still sitting on the motorcycle. However, the fire missed. According to the F.I.R., the act of firing took place when the deceased was being assaulted by knife by other three Appellants. In his statement, Ram Kishun has stated that after the Appellants pulled down Kastoori from the motorcycle, it was Ram Chandra, Appellant, who fired from his country made pistol on the ceased first, which missed. It was also only thereafter that other three Appellants inflicted knife injuries on the deceased. This discrepancy in the case occurring in the F.I.R. and the statement of Ram Kishun made before the Court remains unexplained. The height of the motorcycle is not such that a lacerated wound with a linear fracture on the forehead would occur on a fall from it. The dithering statements, first the deceased fell down on his back and then he fell faceward clearly shows that the prosecution was all along in a quandary to explain the two inconsistent injuries, injury No. 1 and injury No. 4. It further shows that this witness was not present and did not himself witnessed the incident. It is further proved from the fact that the deceased was not taken by him to hospital.

According to the prosecution case, Kastoori was carried to Railway Hospital in an injured condition by Ram Kishun and Gurmukh Singh. Ram Kishun has stated that his clothes got bloodstained when he was carrying Kastoori to the Railway Hospital. According to the prosecution case, from the Railway Hospital, deceased was sent to Sadar Hospital on an Ambulance. Chhabila Singh, P.W. 8, the Investigating Officer of the case, stated that he could not find any record at the railway hospital that the deceased was brought there. He also did not find any entry from this hospital''s record that Ambulance of Railway Hospital carried Kastoori to Sadar Hospital. Ram Kishun stated that Gurmukh Singh came to Sadar Hospital and Ram Kishun told Gurmukh to get Kastoori admitted in the hospital and that he is proceeding to the police station for lodging the report. However, in his cross-examination, Ram Kishun stated that from Railway Hospital, he went to his residential house and came back to Railway Hospital along with his mother. The deceased, Kastoori, is the real brother of Ram Kishun, P.W. 1. He had sustained bleeding injuries. The conduct of Ram Kishun in leaving the deceased at Sadar Hospital with Gurmukh Singh is most unusual and unnatural. Ram Kishun stated that near post office, he got his written report typed out from a typist. When he reached the police station, his clothes, which were bloodstained, were not shown by him, to the Head Constable. To overcome this anomaly, he stated that bloodstains from his clothes disappeared when they were washed. It ought to be subsequent act from F.I.R. It is an afterthought to explain the omission.

In the F.I.R. Ram Kishun has mentioned that old enmity existed with him and the Appellant, Shambhu Nath Gupta. However, this fact was not stated by him in his deposition in the Court. If this was a fact, the Appellants would not have spared him wholly unscathed. He further stated that motorcycle belonged to the deceased. It remained lying at the place of occurrence for some time and thereafter some one brought the same at his shop. These facts go a long way to prove that Ram Kishun P.W. 1 was not present at the spot.

The three defence witnesses have stated that Lalji, Appellant, was present on his duty as Khalasi in the Loco Shed from 8 a.m. to 4 p.m. The statement of these three witnesses, if taken in its entirety, shows that an employee could go out from the Loco Shed for about 20 minutes. Thus, the evidence of defence witnesses about alibi of Lalji, Appellant, is not trustworthy. It is accordingly rejected.

Admittedly, Ram Kishun is the brother of the deceased and would not spare any real assailant. Conviction may be recorded against the Appellants on his sole testimony provided the witness is found honest and truthful in his deposition. The claim of Ram Kishun that he carried Kastoori to the District Hospital along with Gurmukh Singh P.W. 3 is highly doubtful because medical examination report prepared by Dr. I. P. Singh shows that Kastoori was brought by Gurmukh Singh alias Nakharu. The name of Ram Kishun having brought Kastoori to the District Hospital is not mentioned in Ext. Ka-2, the injury report. Had he been there, being brother, his name would have been there and not P.W. 3.

Apart from it, his statement that he took the victim to Railway Hospital inspires no confidence because there is total absence of any evidence in this regard. It leaves no room for doubt hat he was not present at the railway hospital. He tried vainly to explain that he went to his house from railway hospital and returned after a while with his mother. The explanation, false as it is, further fortifies the inference of his absence. Enmity was with him also but he was not touched by the assailants. Thus, we have no hesitation to conclude that solitary testimony of Ram Kishun is wholly incapable to bring home the guilt of the Appellants.

Ram Kishun does not fall in the category of a wholly reliable witness. The three categories of witnesses have been classified by Supreme Court in the case of Vadivelu Thevar Vs. The State of Madras, . He is a wholly got up witness in the circumstances discussed above.

In view of the aforesaid discussion, statement of Ram Kishun, which was modulated at will to fit in with the prosecution case, does not inspire complete confidence. His presence at the time of occurrence appears highly doubtful. The occurrence, it appears, has taken place in some other manner than alleged by the prosecution. The deceased apparently was alone. He was stopped, stabbed and fired upon while he was still on the motorcycle. The head injury might have been suffered by him due to a fall with motorcycle once he was left by the assailants. This seems more probable.

In the result, the appeal is allowed. The order of conviction and sentence of the Appellants is set aside. They are acquitted. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.