Ram Charan and Others vs State of U.P.

Poonam Srivastav, J.—This is an appeal on behalf of four Appellants namely Ram Charan son of Sikdar Singh, Photnu son of Ram Charan Singh, Shiv Raj Singh son of Shamsher Singh and Pritipal Singh son of Shamsher Singh. Their conviction is u/s 307/34, I.P.C. and sentence is four years R.I.

Ms. Anita Srivastava, advocate was appointed as amicus curiae by this Court vide order dated 20.11.2009. She appeared today and argued on behalf of Appellants.

Sri. A.K. Jain, learned A.G.A. appeared on behalf of the State.

The occurrence is alleged to have taken place on 5.2.1980 at 9 a.m. and the F.I.R. was lodged on the same day at 12.15 p.m. by P.W. 1 Jogendra Singh of village Khiriyamal, at Police Station Tilhar, district Shahjahanpur situated at a distance of 4 miles from the place of occurrence.

The facts of prosecution case briefly stated are that the accused Ram Charan is the father of the accused Photnu. The accused Shiv Raj Singh and Pritipal Singh are brothers and are related to the accused Ram Charan and Photnu.

The occurrence in question had taken place on 2.2.1980. About fifteen or twenty days before the occurrence in question, Jogendra Singh (P.W. 1) had purchased ''ghoora'' for Rs. 25 from Smt. Surajwati, an aunt of the accused Ram Charan. Jogendra Singh (P.W. 1) carried the said ''ghoora'' in a bullock-cart and was driving the same towards his field. When he reached with his bullock-cart in front of the door of Ram Charan, later he said that he would not permit him to take that ''ghoora'' and he abused Jogendra Singh (P.W. 1). Ahbaran Singh reached there and settled the dispute. The bullock-cart passed off, but the accused felt ill.

Jogendra Singh (P.W. 1) had two sons namely Suresh Singh and Wiresh Singh. On 5.2.1980 at about 8-9 a.m., Wiresh Singh and his cousin brother Ram Kishore were returning from their field after collecting grass in village Khiriyamal, within the circle of police station Tilhar, district Shahjahanpur. Wife and children of the accused Ram Charan dragged Wiresh Singh aged about ten or eleven years, into their house. Ram Kishore gave its information to Jogendra Singh (P.W. 1). Suresh Singh (P.W. 2) was on his field when he was also informed about the incident. Jogendra Singh (P.W. 1) and his wife went to house of Ram Charan and brought back their son Wiresh Singh from there.

On the same day, at about 9 a.m., Suresh Singh (P.W. 2) started from his field on hearing the news of confinement of his brother Wiresh Singh and when he reached near his field which adjoined the village abadi, he found that the accused Ram Charan and Photnu, armed with guns and the accused Pritipal Singh and Shiv Raj Singh armed with lathis, were standing in front of the house of Chandra Pal. The accused Shiv Raj Singh and Pritipal Singh accosted Suresh Singh (P.W. 2), he immediately ran for his safety and entered the ''bakhri'' of his uncle Ram Sagar. On hearing the alarm, Smt. Phoolmati (P.W. 4), bhaujai of Jogendra Singh (P.W. 2), alongwith Km. Ramdhana and Km. Shivdhana, daughters of Smt. Phoolmati (P.W. 4), arrived at the door of their house. Meanwhile the accused Ram Charan and Photnu fired from their guns in an attempt to kill Suresh Singh (P.W. 2). Instead the shots hit Smt. Phoolmati (P.W. 4), Km. Ramdhana, Km. Shivdhana and Smt. Champa. Smt. Champa had also gone there to draw water. Chandrapal Singh, Tilak Singh and Shamsher Singh were present at the time of occurrence and they challenged the accused, consequently the accused ran away towards west. Jogendra Singh (P.W. 1) had witnessed the occurrence from his own chaupal.

Smt. Champa is the bhaujai of the accused Ram Charan.

Prosecution examined as many as six witnesses. Jogendra Singh was examined as P.W. 1, Suresh Singh P.W. 2, Dr. R.P. Gulati P.W. 3, Smt. Phoomati, one of the four injured, was examined as P.W. 4, Dr. P.S. Verma was examined as P.W. 5 and Amar Singh Investigating Officer was examined as P.W. 6.

Injury report of Km. Ramdhana is Ex. Ka-2. Injuries of the injured Ramdhana were examined on the same day. Her injuries are detailed hereinbelow:

Examined Km. Ramdhana 13 years D/o Ram Sagar, R/o Khiriya Mal, P.S. Tilhar, district Shahjahanpur at 3.30 p.m. on 5.2.1980. Brought by C.P. No. 242 Jitendra Nath Malviya P.S. Tilhar.

M.I. A pin point size mole in middle of upper lip.

Injuries:

(1) Lacerated wound 1/4 cm. x 1/4 cm. x subcutaneous tissue on forehead 1/2 cm. above middle of left eyebrow.

Injury simple, caused by under observation.

Duration about 1/4 day.

Patient claims the injury due to gunshot.

No shot palpable. No blackening of skin is scorching of...(sic)...around the wound. Advised X-ray at District Hospital, Shahjahanpur for detection of shot, if any.

R.T.I. of the Ramdhana Sd. Illegible.

Attested. 5.2.1980

Sd. Illegible. (Seal)

5.2.1980

Injuries of Smt. Champa was also examined on the same day by the doctor which is detailed below:

Examined Smt. Champa 35 years W/o Ram Pal Singh, r/o Khiriya Mal, P.S. Tilhar, district Shahjahanpur at 3.45 p.m. on 5.2.1980. Brought by C.P. No. 242 Jitendra Nath Malviya, P.S. Tilhar.

M.I. A brownish mole on chin.

Injuries:

(1) 2 lacerated wound 1/4 cm. x 1/4 cm. x subcutaneous tissue. 3 cm. apart, in front of head 7-1/2 cm. each about above root of nose.

(2) 1 lacerated wound 1/4 cm. x 1/4 cm. x subcutaneous tissue on outer side left shoulder.

All injuries simple, caused by under observation. Duration about 1/4 day.

Injured claims the injuries due to gunshot. No shot palpable. No blackening of skin on scorching of...(sic)...around the wound. Advised for X-ray skull and left shoulder at District Hospital for detection of shot if any.

R.T.I. of Smt. Champa Sd. Illegible.

Attested. 5.2.1980

Sd. Illegible. (Seal)

5.2.1980

(Seal)

Injured Km. Shivdhana was examined thereafter. Her injury report is reproduced below:

Examined Km. Shivdhana 11 years D/o Ram Sagar Singh, R/o Village Khiriya Mal, P.S. Tilhar, district Shahjahanpur at 4.00 p.m. on 5.2.1980. Brought by C.P. No. 242 Jitendra Nath Malviya, P.S. Tilhar.

M.I. An old scar 2 cm. x 1/4 cm. x 1/4 cm. on neck 3 cm. behind and below left ear.

Injuries:

(1) Lacerated wound about 1/4 cm. x 1/4 cm. x subcutaneous tissue on left side head 3 cm. behind middle of left ear.

(2) Lacerated wound 1/4 cm. x 1/4 cm. x breath of pinna on middle of right ear pinna front (with inverted margins).

All injuries simple, caused by under observation. Duration about 1/4 day.

Injured claims the injury due to gun shot. No shot palpable under injury No. (1). No blackening of skin and scorching of...(sic)...around injuries. Advised for X-ray at District Hospital, Shahjahanpur for injury No. (1) for detection of shot if any.

R.T.I. of Km. Shivdhana Sd. Illegible.

Attested. 5.2.1980

Sd. Illegible. (Seal)

(Seal)

Injured Smt. Phoolmati was also examined. Her injury report is reproduced below:

Examined Smt. Phoolmati 35 years W/o Ram Sagar Singh, R/o Village Khiriya Mal, P.S. Tilhar, district Shahjahanpur at 4.15 p.m. on 5.2.1980. Brought by C.P. No. 242, Jitendra Nath Malviya, P.S. Tilhar.

M.I. An old scar 2 cm. x 1/2 cm. in front of left leg middle.

Injuries:

(1) Lacerated wound 1/4 cm. x 1/4 cm. x not probed on outer part of left lower lid with ecchymosis of whole of palpebral and bulbar congestion of left eye, patient unable to see clearly as stated.

(2) 3 lacerated wounds each about 1/4 cm. x 1/4 cm. x subcutaneous tissue on left lower jaw middle, 1-1/2 cm. from each other.

(3) Lacerated wound 1/4 cm. x 1/4 cm. x subcutaneous tissue on outer side left shoulder.

(4) 2 lacerated wounds 4 cm. apart each about 1/4 cm. x 1/4 cm. x subcutaneous tissue on front of left arm lower 3rd.

(5) 1 lacerated wound 1/4 cm. x 1/4 cm. x subcutaneous on back of left hand.

Injury No. (1) under observation for detection of injury to left eye for which advised for...(sic)...by eye specialist. All other injuries simple caused by, under observation.

Duration about 1/4 day.

Patient claims the injuries due to gun shot. No shot palpable. No blackening of skin and scorching of...(sic)...around wounds. Advised for X-ray at District Hospital, Shahjahanpur for detection of shot if any. Reffd. Eye Hospital, Shahjahanpur for report and treatment of injury to left eye.

R.T.I. of Smt. Phoolmati Sd. Illegible.

Attested. 5.2.1980

Sd. Illegible. (Seal)

(Seal)

X-ray reports of Smt. Phoolmati, Km. Ramdhana and Km. Shivdhana are Exts. Ka-6, Ka-7 and Ka-8. Perusal of report of Radiologist Dr. P.S. Verma P.W. 5 substantiate that Radio Opaque was seen in the X-ray.

The argument of Ms. Anita Srivastava is that out of four injured, only one has been examined as P.W. 4 Phoolmati and remaining three witnesses have not been produced before the Court. However, a bare perusal of the cross-examination of Smt. Phoolmati belies the prosecution version for the reasons; firstly because she has admitted in her statement that sufficient blood was oozing out from her injuries as well as injuries of three injured but the Investigating Officer has not prepared any recovery memo of blood stained clothes to substantiate this fact. Secondly, the allegation that injuries were received by fire arm is also not corroborated for want of recovery memos of stray pellets and empty cartridges though the prosecution story is that firing was resorted in an open area. The third argument is that the injured witness has very clearly and unequivocally stated that she did not go inside police station and they were sitting in the vehicle which had carried them to the police station and thereafter to the hospital. She has also submitted and pointed out the anomalies in the statement of the injured, as she has admitted that her injuries were examined late at night and it was quite dark when they had reached the hospital whereas injury report shows that the injuries were examined at 3.30 p.m.

The next argument advanced by Ms. Anita Srivastava is that the F.I.R. is apparently ante-timed for the reason that doctor has reported the injuries to be 1/4 day old. This fact also stands substantiated by statement of Dr. R.P. Gulati who was examined as P.W. 3. If the injuries were examined late at night, then obviously the occurrence had taken place sometimes after 4 p.m. but the F.I.R. as shown to be lodged at 12.15 p.m. This is much before the actual time of occurrence. On the contrary, the Investigating Officer has stated in his cross-examination that the injured had got down from the vehicle and they were sitting outside the room at the police station. All these contradictions are also to be noted and cannot be ignored as minor contradictions. The time of occurrence and manner of occurrence is altogether changed, besides the injured appear to have received injuries somewhere else. The actual person who was attacked has not received any injury and prosecution has failed to establish any connection with the injured vis-�-vis Suresh Singh.

In the end, Ms. Anita Srivastava has submitted that it is not a case u/s 307, I.P.C. and conviction is liable to be set at naught.

Learned A.G.A. has disputed each and every arguments of amicus curiae on behalf of the Appellants. He has tried to lay emphasis on the statement of the first informant P.W. 1 Jogendra Singh who has proved the F.I.R. and substantiated the prosecution case. Argument of F.I.R. being ante-timed is also challenged on a number of grounds. Firstly, the F.I.R. has been proved, secondly, the evidence of P.W. 4 should not be given much weight because she is a lady from the village and they are not aware about the surrounding and timing and they are uneducated.

After hearing the respective counsels at length and going through the record, no doubt four females have received injuries. Their injuries are though reported to be simple in nature but one opaque shadow in the X-ray is sufficient to establish that the injuries were caused by some stray pellets of fire arm. The injured Smt. Champa, Km. Shivdhana and Km. Ramdhana were not examined. However, this is not very material but one of the injured has materially not supported the prosecution version as given out by the first informant and other eye-witness P.W. 2 Suresh Singh. Besides, it is also apparent that the prosecution story clearly narrates that the shots were fired with a view to cause injury to Suresh Singh who has not received a single injury. On the contrary, the other ladies of another house who had not permitted Suresh Singh to enter in their house, on the contrary shoved him out. Thus, it appears that the ladies had received injuries in some other incident and complete concocted version has been given with a view to implicate the Appellants who were admittedly inimical to the witnesses specially P.W. 1 and P.W. 2. In this context, non-examination of the witnesses become more relevant because P.W. 1 and P.W. 2 have tried to support the prosecution story wholeheartedly and none of them have received injuries. The injuries received by the four injured does not fit in the facts and circumstances propounded by the prosecution. This itself creates doubt on the prosecution story as narrated by P.W. 1 and P.W. 2, therefore, I am of the considered view that the prosecution has not been able to prove its case beyond doubt and the Appellants have been convicted for causing injuries to four females who definitely must have received the injuries in some other incident. If the injuries were as a result of fire arm, the injuries as shown in the injury report and X-ray then some recovery memo of the empty cartridges and pellets and blood stained clothes would have necessarily been prepared by the Investigating Officer.

In the facts and circumstances, I am of the opinion that the conviction recorded by the learned Sessions Judge is without sufficient evidence and without weighing in the correct perspective. The appeal is allowed. The judgment and order dated 4.9.1982, passed by the Session Judge, Shahjahanpur in Session Trial No. 462 of 1982 is set aside. The Appellants are acquitted. They need not surrender.