Ram Iqbal alias Loha Chaudhary and Others vs State of U.P.

B.L. Yadav, J.—The present Criminal Appeal u/s 374(2) of the Code of Criminal Procedure has been filed by Ram Iqbal and others against the judgment and order dated 1st August, 1977, passed by the IInd Additional Sessions Judge, Ballia, in Sessions Trial No. 30 of 1976 State of U.P. v. Ram Iqbal, convicting the Appellants u/s 302 read with Section 149, IPC, sentencing them to life imprisonment, convicting them u/s 324/149 IPC, sentencing them to three years R.I., convicting them u/s 324/149 IPC for causing hurt by means of spears to Sri. Ramji and sentencing them to three years R.I., convicting them u/s 324/149 IPC for causing hurt by means of spears to Sri. Ram Singhasan and sentencing them to three years R.I., convicting them u/s 323/149 IPC and sentencing them to six months R.I. convicting them u/s 147 IPC and sentencing them to two years R.I. and also convicting them u/s 148 IPC and sentencing them to two years R.I. All the sentences were, however, directed to run concurrently.

The case of the prosecution as unfolded in the First Information Report is that in the incident dated 7-4-75, the informant Ram Singhasan, resident of village Chhatisa, P.S. Sahatwar, Distt. Ballia was sleeping at his door along with Sri. Ramji, a relation and his father Sukath. At about 12.00 in the night about 10 to 15 persons armed with lathi and spears came there and started beating the informant, who raised an alarm and Sukath, father of the informant and his relation Ramji woke up after hearing the noise of the informant, the persons of the same locality (namely, Raj Bali, Ram Prasad and Shiv Muni), arrived there with their torches. The accused persons gave beating to Raj Bali and Sukath, father of the informant, and Sukath succumbed to his injuries. The First Information Report was lodged at about 7.15 A.M. the next morning. The Police Station was at a distance of 6 miles to the east.

PW 1 Ram Singhasan, PW 2 Raj Bali and PW 5 Ramji have been examined as witnesses of fact. Dr. T.N. Singh, who conducted the post mortem on Sukath, the deceased, has been examined as PW 5 and Dr. A.N. Singh had examined the injuries. The injuries of Ramji have been examined by Dr. Mishra. The prosecution witnesses have been relied upon by the learned I Ind Addl. Sessions Judge, Ballia, who have recorded the convictions and sentences aforesaid in his judgment and order dated 1-8-1977. It is against this judgment and order the present appeal has been preferred.

Sri. Keshav Sahai, learned Counsel for the Appellants urged that in the FIR no enmity was disclosed. But in the statement of Ramji, PW 5, who was a relation of the informant, it has been stated in para 3 that on the Samadi of Baba, one Ram Iqbal alias Loha and one Bira, Appellant Nos. 1 and 2 met him and they wanted to see the gun of the witness Ramji PW 5, but he refused. The gun was demanded twice or thrice but when it was not shown or given to them, these Appellants started abusing him. The witness also extended some abuse and the Appellant Nos. 1 and 2 said that they would see him. The witness came back to the house of his relation, namely, PW 1 Ram Singhasan and narrated the incident. ''It was urged that if really this was the motive for inflicting injuries on the deceased and also on P Ws 1 and 5, that must have been stated in the FIR. This indicated that actually some miscreants other than the Appellants have come in the darkness of night and inflicted injuries on P Ws and the deceased, the P Ws would not have recognised the assailants. It was next contended that for identification of the Appellants there was no source of light shown at the time of incident only source of light indicated in the FIR was that Raj Bali, Ram Prasad and Shiv Muni came there with their torches. In the absence of light at the place of incident how these three Appellants alone could have been recognised. PW 5 Ramji stated that all the accused were trying to conceal their identity and they were turning their faces this side or that side. While concealing their identity they were trying to inflict injuries by lathi and spears. No specific parts were assigned to the Appellants. In fact, no Appellant could have been recognised as all the accused were trying to conceal their identity. It was urged that the prosecution story was false and in any case it was doubtful.

Sri. G. Bhatt, learned Deputy Government Advocate on the other hand, very strenuously urged that the FIR cannot be said to be encyclopaedia of the prosecution case so as to contain every detail including the enmity, source of light and the mention about the identity of all the accused, particularly the Appellants and also the specific parts assigned to the Appellants. The accused were correctly identified in the light of torches. He urged that sufficient details have been given in the FIR. Referring to the statement of witnesses, he urged that P Ws 1, 2 and 5 have been correctly relied upon by the trial Judge by assigning cogent reasons and no sufficient ground has been made out to interfere with the of evidence made.

Having heard the arguments of the learned Counsel of either side, we are of the opinion that the judgment and order under appeal cannot be sustained. It is a fact that at the residence of the informant in village Chhatisa there was no mention of any light or torch in the FIR by which the accused person, including the Appellants could have been recognised. This is a fact that FIR cannot be encyclopaedia of the prosecution case so as to include all minute details. No doubt FIR is not a substantive piece of evidence, but nevertheless it is first information given about the incident by a person who is supposed to know details of the incident. It is used at least for corroboration or contradiction when the informant comes in the witness box. Omission of important facts in FIR claimed to be known to the informant would be certainly of great significance in ascertaining the veracity or falsehood of the prosecution case. Failure on the part of the PW 1 (Ramsinghasan) to mention that there was some source of light or that he himself had a torch goes a long way to prove that the prosecution did not come with clean hands. Under the circumstances of the case, non mention about the source of light or torch of PW 1 in the FIR particularly when he mentioned that he has a torch when he came in the witness box, is certainly fatal to the prosecution case.

As regards the next submission that the Appellants being the residents of neighbouring village would have taken all precaution to conceal their identity, it is a simple human psychology that whenever any person goes to commit an offence including murder or dacoity in the neighbourhood he would take all precaution to conceal his identity. In the instant case, nothing has been stated in the FIR nor in the statement of P Ws 1 and 2 as to why not the Appellants took precaution to canceal their identity. It has come in the statement of PW 5 Ramji under para 23 that all the miscreants were trying to conceal their identity and they were trying to turn their face this side or that side and in the meanwhile they were inflicting injuries by weilding lathi and spears. As the Appellants were the residents of a neighbouring village it is very unusual as to why not they have taken all the precaution to conceal their identity, particularly when PW 5 Ramji stated that they were making all efforts to conceal their identity. After perusal of evidence, particularly of PW 1 Ram Singhasan, PW 2 Raj Bali and PW 5 Ramji, it is obvious that the Appellants no doubt concealed their identify but they did it in such way that their faces were visible. We are of the opinion that the Appellants were of the neighbouring village, in case they participated in the murder in the night and inflicted injuries and took precaution to conceal their identity, they would have taken precaution to see that their faces were fully covered so that their identification by the informant or other witnesses would have become impossible. We are of the opinion that in case Appellants were dare devil, then they would not have concealed their identity. See Lakshman Prasad Vs. State of Bihar, .

As regards the submission of the learned Counsel for the Appellants that no specific part was assigned, having perused the FIR and the statements of prosecution witnesses of fact, there appears no mention about the specific parts being assigned to the Appellants in the FIR. Only this was mentioned that out of about 15 persons having come to inflict injuries on the informant, the deceased Sukath and Ram Deo were alleged to have received injuries and these Appellants were recognised. Similarly in the statement also no specific parts have been assigned. PW 1 states in para 2 that about 16 persons armed with lathi and spears started beating him. He cried and one of the miscreants flashed his torch and said that he is not the same person. Thereafter they started beating Ramji, PW 5 and when his father raised hue and cry he was also beaten. There must be specific parts assigned to the accused. But in the instant case we find total absence of the same.

There are some P Ws 1, 2 and 5 who are injured witnesses, but simply because they are injured, would not indicate that whatever statements they make would be a gospel truth. Prima facie an injured witness is supposed to be present in the occurrence. But in order to test the veracity or otherwise of an injured witness, the statement must be consistent with the prosecution case, the injury report and other circumstances of the case. In the instant case as we have expressed doubt as to why not the source of light was mentioned in the FIR in case there was some light, similarly it has come in the statement of witnesses that even though the accused were trying to conceal their identity, but while they were turning their faces from right to left and vice versa, they were recognised. As the accused were the residents of neighbouring village, it does not appeal to reason that the accused would not take all the precaution to conceal their identity. We have accordingly held that the accused could not have been recognised in the darkness of night, when in fact, there was no source of light. In the background of these facts it cannot be assumed that whatever the statement was made by the injured witnesses could be totally reliable. No doubt the statement of injured witnesses has to be given due weight, but under the facts and circumstances of the case, we are of the view that what they are stating was not the whole truth. In the instant case the prosecution does not appear to have come with clean hands. Further no specific part has been assigned to the accused. Even though P Ws 1, 2 and 5 were the injured witnesses, but we are of the view that they are not stating the whole truth and no implicit reliance can be placed on their testimony. About the credibility of injured witnesses, we have accordingly grave doubt.

There is yet another aspect of the matter. Even though PW 5 Ramji stated that he had gone to the Samadhi of Babaji along with his gun where the Appellants 1 and 2, namely Ram Iqbal and Bira met him and wanted to see his gun, but he refused and thereafter Appellants 1 and 2 started abusing him and the witnesses also exchanged abuse and thereafter they told him that they would see him, this incident was said to be the creation of the informant. It is surprising as to why not this important fact was mentioned in the FIR. Omission to mention such important facts about absence or presence of light on the spot and the recent enmity which was supposed to be the motive for committing the crime goes a long way to indicate that the prosecution version was not reliable.

We are accordingly of the view that the enmity as alleged by PW 5 was not correct and the prosecution has not come with clean hands nor the P Ws have been successful in proving the prosecution case beyond all reasonable doubt. As such the judgment and order under appeal cannot be sustained and deserves to be set aside.

We accordingly allow the appeal, grant benefit of doubt to the Appellants and set aside the judgment and order dated 1st August, 1977, passed by the IInd Additional Sessions Judge, Ballia, and consequently, all the Appellants are acquitted. As the Appellants are on bail, they need not surrender and their bail bonds are cancelled and sureties discharged.