Ram Kewal vs State of U.P

R.C. Deepak, J.—The present Criminal Appeal has been filed by accusedappellants Ram Kewal, Ram Newal and Hirdey Ram against the judgment and order dated 27.11.1987 passed by Sri M.P. Pandey, Special Additional District & Sessions Judge, Faizabad, in Sessions Trial No. 350 of 1984, whereby he convicted the accusedappellants under sections 302/149, 307/149 and 148 I.P.C. and sentenced them to life imprisonment, five years'' R.I. and one year''s R.I. respectively.

The brief facts of the case are that the accusedappellants as well as the informant Lalta Prasad, Ram Kuber and Ram Ujagir are the residents of the same village. It is alleged that there was some dispute between Ram Kuber and Ram Kewal Verma in regard to the abadi land and a case under section 107 Cr.P.C. was also initiated against them. It is further alleged that on 8.4.83 at about 8.00 p.m., Ram Kuber, Lalta Prasad, Ram Ujagir and Ram Sajivan were preparing gur in gulor and a lantern was glowing there and they were also holding the torches. All of a sudden, Ram Kewal. Ram Newal and Hirdey Ram, (sons of Surya Pal) and 56 others armed with gun and katta came therefrom western side. In the light of the torches it was disclosed that they were Ram Kewal, Ram Newal, Hirdey Ram and others. Ram Kewal exhorted that they be killed. Ram Newal and Hirdey Ram holding kattas in their hands opened fire as a consequence Ram Kuber sustained pellet injuries and raising alarm, they ran towards the village. The door of the house of Ram Kuber was open, Ram Ujagir entered therein and bolted from inside Thereafter Ram Kewal, Ram Newal and Hirdey Ram after breaking the door entered the house wherein they were intervened by Kalawati daughter in law of Ram Kuber who requested them not to shoot Ram Ujagir, but they opened fire upon him and thereafter Ram Ujagir was removed from inside the house. It is alleged that they raised alarm upon which Lalji, Bramhadeen and certain others reached there and set fire at a substance/patai lying there, which generated the light and due to the pressure of the village people and of the light, they left Ram Ujagir at the house of Mahadev and escaped from there. With these allegations Lalta Prasad Verma submitted an application at the police station Haiderganj, District Faizabad and on the basis of which a case at crime No. 59/83, under sections 147, 148, 149, 307 and 452 I.P.C. was registered the same night at 22.30 hours at the said police station against Ram Kewal, Ram Newal, Hirdey Ram and 56 unknown.

It is further disclosed by Lalta Prasad that the police arrived there and took the injured persons to the hospital. The investigation into the case was taken by Ram Vilas Dubey, S.I., P.W.5. who managed to send Ram Kuber and Ram Ujagir injured to the hospital. He recorded the statement of Ram Ujagir at Chaurey Bazar. Ram Ujagir was declared dead in the hospital but Ram Kuber was medically examined at 2.40 a.m. on 9.4.83 by Dr, R.K. Srivastava, P.W.9 and he found the following injuries on his person as disclosed in the injury report Ext. Ka25:

Firearm 0 3 cm. x 0.3 cm x muscle deep over post medial aspect of Rt, forearm 8 cm above wrist joint no blackening or charring present direction superiorly & laterally.

Firearm wound 0.3 x 03 cm x not proved over Rt. side of abdomen 3 cm outer to umblicus, no blackening or charring present.

Two firearm wound each measuring 0.2 cm x 0.2 cm, 2 cm a part over back of Rt. thigh, just below glutral crease no blackening present.

Firearm wound 0.2 cm x 0.2 cm over medial part of Rt. thigh in the, middle.

Three firearm wounds over Rt. leg each measuring 0.2 x 0.2 cm. in an area 6 cm x 2 cm, no blackening part and out aspect in the middle.

Firearm wound 0.3 cm x 0.3 cm over out medial aspect of left leg in the middle.

Dr. R.P. Pandey performed the autopsy on the dead body of deceased Ram Ujagir and he noticed the following injuries on his person. A copy of the postmortem examination report is Ext. K.a2.

Lacerated wound 10 cm x 6 cm x cavity deep over the left (sick) ligament pearcing the under lying structure such as (sick) (urinary) and large intestine. Loops of small intestine are (sick) out of the wound.

Lacerated wound 2 cm x 1 cm x 1 cm on the left side scrotam on front of left (sick) on front of left scrotam.

Firearm wound with hard scab 0.3 cm x 0,2 cm x skin deep outer aspect of right knee joint. A (sick) body recovered and preserved.

Firearm wound with hard scab 0.3 cm x 0.2 cm x skin deep on outer aspect of right knee joint 3 cm superior to injury No. (3). (sick) body recovered and preserved.

The Investigating Officer recorded the statement of Lalta Prasad, Kalawati and certain others. He prepared the inquest on the dead body of the deceased Ext. Ka16 and the siteplan of the occurrence Ext. Ka4 and after completion of the investigation he submitted the chargesheet against the accused persons.

The charges were framed against them who pleaded not guilty and claimed to be tried.

To prove its case the prosecution examined as many as nine witnesses. Lalta Prasad P.W.I, Ram Kuber P.W.2 and Kalawati P.W.3 are the witnesses of fact and the remaining are formal ones. The accused examined no witness in defence. The Trial Court on the basis of evidence on record convicted the accused appellants under relevant Sections, against which the present appeal has been filed, already referred to above.

We have heard Sri Nagendra Mohan, learned Counsel for the accusedappellants and Sri B.P. Verma learned Additional Government Advocate and perused the record.

It has vehemently been argued by the learned Counsel for the accusedappellants that the occurrence had taken place in the night and there was no occasion for the witnesses Ram Kuber and Kalawati to identify the assailants. He also submits that Ram Ujagir was not in a position to make any statement to the Investigating Officer disclosing the names of the accused, who had Jaused injuries to him as recorded by the Investigating Officer under section 161 Cr.P.C Ext. Ka3. Further contention is that in fact some dacoits attacked the house of Ram Kuber to commit dacoity, wherein Ram Kuber and Ram Ujagir sustained injuries and due to the existing enmity the accusedappellants have falscly been implicated in the present case.

On the other hand, the learned Additional Government Advocate has vehemently contradicted the argument of the learned Counsel for the accusedappellants submitting that the names of the accused, the weapons and the role assigned to them have vividly been disclosed in the First Information Report and there is no evidence that the deceased and the injured sustained injuries in the commission of the dacoity.

The foundation of a criminal case is the First Information Report. If the foundation is weak, the entire case is bound to collapse. Therefore, we find it relevant to deal with the First Information Report at the very out set.

Lalta Prasad is the maker of the First Information Report, wherein he has disclosed that the accusedappellants Ram Kewal, Ram Newal and Hirdey Ram sons of Surya Pal and their 56 unknown associates, armed with guns and kattas arrived at the gultor and Hirdey Ram and Ram Kewal opened fire from Katta upon Ram Kul er causing Pellet injuries at his legs. They all raising alarm ran towards the village and the door of Ram Kuber was open. Ram Ujagir entered therein and closed the door from inside. After breaking the door they entered the house and caused injuries to Ram Ujagir with their respective weapons and took him outside. Several persons of the village arrived there and set fire at patai (sugarcane leaves) of Ram Kuber generating light. Due to the pressure of the villagers and of the light, they left Ram Ujagir at the house of Mahadev. The villagers identified Ram Kewal, Ram Newal and Hirdey Ram. The F.I.R. further admits that the police of outpost took away the injured to the hospital and he lodged the report in this regard. But a perusal of his statement made in the Trial Court would show that he did see no assault made upon Ram Kuber or the deceased Ram Ujagir. The surprising feature is that according to him, when the assault was being made upon Ram Ujagir, he took shelter in a bush nearby and he was writing the F.I.R. His statement further reveals that he came to know the next day that the police had arrived at his village and took away the injured and the deceased and till then he was not aware that the police had arrived, but how this fact has been mentioned in the First Information Report that the police had taken the injured to the hospital. This all indicate that the First Information Report is not the origin/of this informant, but has been dictated or lodged in different way, specially when he has enmity with the accusedappellants as he was witness against Ram Kewal and Rarn Newal in a case punishable under section 307 I.P.C., wherein it was alleged that Ram Kuber was assaulted by them, but final report was submitted.

The statement of Ram Kuber injured witness is very material for the purpose of this case. According to him, he sustained injuries near the gulor at the hands of Hirdey Ram and Ram Kewal. He alone remained there and others had run away, but the circumstances indicates that there was no occasion for him to identify the real assailants. He did not appear to have sustained any injuries at his house except this place. His statement further indicates that he did see no assault made upon the deceased at his house. Therefore, there is solitary witness in regard to the injuries caused to the deceased Ram Ujagir and she is Kalawati, the daughter of Ram Kuber. According to this witness, Ram Ujagir entered her house and closed the door from inside. The door was broken by the accusedappellants and the remaining 56 unknown miscreants remained outside the house. These three accusedappellants caused firearm injuries to the deceased. A perusal of Ext. Ka2, the postmortem examination report would disclose the presence of two lacerated wounds 1 & 2 and two are of firearms and according to the P.W.4 Dr. R.P. Pandey, injury No. 1 and 2 are not the result of the firearm and these injuries were sufficient to cause the death of the deceased. Injuries No. 3 and 4 are firearm injuries, but they did not prove fatal. Kalawati has categorically stated that the accusedappellants caused katta injuries to the deceased. There is no disclosure in her statement that of any other weapon was used in causing such injuries. The spent cartridges and sign of pellets are said to have been recovered from there. No doubt the assault would have been made upon the deceased at the house of Ram Kuber, but the presence of Kalawati at the relevant time can very well be disputed there as there is no explanation of the fatal injuries i.e. injury No. 1 and 2 by her, specially when she deposed in her crossexamination that she and her family members had run away to the outside of the village in the night/time of occurrence and the next day she came to know that her father Ram Kuber and Ram Ujagir had sustained injuries as it was disclosed by Lalta Prasad (informant) to her that Ram Ujagir (deceased) had also suffered injuries. Therefore, this witness cannot be said to be a wholly reliable witness.

The evidence on record would show no time and place when and where the deceased Ram Ujagir died. The statement of Ram Kuber indicates that he and Ram Ujagir were carried to Chaurey Bazar outpost by the police, from where they were sent to the hospital in a taxi by the police and in the hospital Ram Ujagir was declared dead. There was no occasion for the Investigating Officer to record the statement of the deceased as disclosed in Ext. Ka3.

On the basis of these material contradictions occurring in the circumstances and the statements of the prosecution witnesses, the learned Counsel for the accusedappellants has concluded expressing that there is no evidence against the accusedappellants, to have committed the murder of Ram Ujagir and caused injuries to the injured Ram Kuber. Therefore, the conviction and sentence of the accusedappellants are bad in law.

We have given our thoughtful consideration to the arguments of the learned Counsel for the parties, the evidence on record and the prevailing circumstances and we have arrived at an irresistible conclusion that the accusedappellants have earned the right to be given to the benefit of doubt in the present case as the Trial Court''s judgment suffers from various discrepancies and contradictions on vital aspects of the matter.

Consequently, the appeal is allowed. The conviction and sentence of the accusedappellants under section 148, 307/149 and 302/149 I.P.C. are hereby set aside. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.