Ram Kumar and Others (In Jail) vs State of U.P.

S.K. Agarwal and K.K. Misra, JJ.—Criminal Appeal No. 2705 of 1987 was filed by Appellants Ram Kumar, Kanhai and Bhola and the connected Criminal Revision No. 1939 of 1987 was filed by Bajrangi Singh against Sheo Nath and Bijai against their acquittal. State of U. P. has also filed an appeal, being Government Appeal No. 550 of 1988 against Shiv Nath and Bijai, the two acquitted accused, and it was admitted and connected with the above said criminal appeal.

The three Appellants in Criminal Appeal No. 2705 of 1987 were convicted u/s 302/34, Indian Penal Code and sentenced to imprisonment for life by the trial court.

The prosecution story as contained in the F.I.R. is that the informant Bajrangi Singh is a resident of village Barhani, P.S. Sayed Raza, district Varanasi. Some altercation between his sons and co-villager Raj Kumar Gond had taken place some 10/12 days ago. His another son, Sheo Murat Singh, is employed in the Army. He was in the village at the relevant time on leave. He left for P.S. Sayed Raza to meet the S.H.O. on 16.1.1986. He was accompanied by Shiv Pujan Singh and Subedar Singh. Due to non-availability of the S.H.O. at the police station, they were coming back from there. Sheo Murat Singh''s leave was to come to an end shortly. On their way back, after alighting from the bus, these three went to the house of Ram Vilas Singh to meet him. They were returning on foot to their house at about 7.00 p.m. from there. When they reached near the road in front of the house of Ram Kumar Gond in Mohalla Dixit Nagar in village Barhani itself, they saw Ram Kumar Gond with ballam, Bhola, his son, with a knife in his right hand and Sheo Nath standing on the road. They accosted them. On exhortation of Sheo Nath, Vijay and Kanhai, sons of Sheo Nath, caught hold of Sheo Murat Singh (deceased) and Ram Kumar pierced his ballam in his abdomen and Bhola caused injuries from knife on his back and near the neck. Shiv Pujan Singh and Subedar Singh being empty handed ran for safety towards the village. While doing so, they turned their faces backward and noticed that the injured Sheo Murat was being dragged by the assailants towards east. They went to the house of deceased Sheo Murat Singh and informed his father Bajrangi Singh about the incident in detail. After receiving the information, Bajrangi Singh allegedly along with his villagemen proceeded towards the police station. On the way to the police station, they did not notice presence of any accused near the house of Sheo Nath Gond nor the dead body of his son was noticed by them there. The report, Ext. Ka-1, was registered at the police station at about 9.15 p.m. on the same day, i.e., on 16.1.1986.

As a consequence to these injuries, Sheo Murat Singh breathed his last. His dead body was allegedly recovered on the next morning by S.I. from the room of the house of Sheo Nath. Blood was recovered from there and also from the road. The body was recovered on the pointing out of two accused, Sheo Nath and Bhola. According to the prosecution, they broke open the lock of the door and got the body recovered. Thereafter, inquest memo was prepared and the dead body was sent for post-mortem.

Post-mortem was conducted on 18.1.1986 at 3.30 p.m. and the following antemortem injuries were found on the person of deceased Sheo Murat:

(1) One scratched wound 5-1/2 cm. ? 1/10 cm. wide with clotted blood present over left side of face below left eye and 3 cm. above and outer to left in mouth angle.

(2) Incised wound 3/4 cm. ? 1/2 cm. ? 1/4 cm. left side chin 1-1/2 cm. below the left mouth angle and 3-1/2 cm. outer to mid line.

(3) Multiple abraded contusion 11 cm. ? 7 cm. on the right forehead, eyebrow and cheek.

(4) One graze abrasion 11 cm. ? 9 cm. over left side of chest front 12.3 cm. above the right heel, 3-1/2 cm. outer to mid line.

(5) Stab wound obliquely placed, inner and joining up and outer down, both is pointed, it is 5-1/2 cm. ? 2 cm. ? abdominal cavity deep 25 cm. below the right nipple on right abd. 104 cm. above the right heel and 4 cm. outer to mid line, from opening of the loops of small intestine and omentum came out, on examination there is no incised wound in omentum and small intestine loop has through and through wound also on 1-1/2 cm. ? 1/2 cm. on the bed of mesentery.

(6) Stab wound 5-1/2 cm. ? 3 cm. ? scapula bone and muscle deep on right side situated at right lap of shoulder. Scapula spine and acromical process of it also on opening cut also present over bone.

(7) Stab wound 5 cm. ? 2-1/2 cm. ? chest cavity deep right side back. It is 142 cm. above the right heel 6 cm. outer to mid line, obliquely placed. Direction from posterior to exterior, right to left and down to above involving the organs in the tract on posterior right chest wall, middle lobe of lung through and through, middle mediasternum, posterior wall of pericardium, pulmonary vessels, left sternum and inter arterial septum and through left outer arterial and ventricular septum it came out through left ventricle at apex and pierced in the chest wall out cutting the left 5th rib and adjacent cartilage below the nipple and clotted blood present at the side in 10 cm. ? 5 cm. area also cut present in the out deeper chest muscles. No opening to outside the interior chest wall.

(8) Stab wound 5-1/2 cm. ? 1-1/2 cm. on the right back of chest 137 cm. above the right heel and 3 cm. below injury No. 7 and 3-1/2 cm. outside mid-line. It is right chest cavity deep and pierced the left middle from lobe directing posterior to anterior above to down, right to left.

(9) Stab wound 4 cm. ? 1-1/2 cm. ? muscle deep on left side outer and back aspect of chest 9 cm. outer the mid line 122 cm. above the left heel 30 cm. top of shoulder left below.

(10) Abraded contusion 5-1/2 cm. ? 4 cm. on left side of chest 1 cm. outer and front to injury No. 9.

Cause of death was shock and haemorrhage due to injuries to heart and lungs.

The prosecution in support of its case examined two eye-witnesses, viz., P.W. 2 Shiv Pujan Singh and P.W. 3 Subedar Singh. Apart from them, P.W. 1 Bajrangi Singh, father of the deceased, was examined to prove the motive of the incident, the discovery of dead body and also communication of the information to him from the two eye-witnesses. He himself is not an eye-witness.

P.W. 4 is the doctor who conducted the autopsy. According to him, the time of death was 1 and 3/4 days. These injuries were sufficient to cause his death. Injuries Nos. 1, 3, 4 and 10 could be caused from dragging by holding the legs. These injuries, according to him, could also be caused due to friction on hard surface. Stab wound would be caused from ballam and knife. Injuries 5, 7 and 9 could be caused, according to him, by a ballam and injuries 2, 6 and 8 could be caused by a knife. In cross-examination he stated that injury No. 2 might be caused by the edge of a ballam if edge was there. Stab wound could be caused by ballam and knife both provided edge of the knife is pointed. He has clearly stated that injuries 1, 3, 4 and 10 could not be caused by a lathi. He denied that injuries 1, 3, 4 and 10 were not on the resting portion of the body. He did not find any mud or soil or drops of dew on his clothes because he did not note any such thing in his post-mortem examination report. The injuries were on the front and back of the deceased and they must have bleeded profusely. Therefore, the clothes were stained with blood. There was no injury on his neck. Soon after the sufferance of these injuries the injured may have died. He very categorically stated that injuries 1, 2, 4 and 10 could not be caused unless the deceased was dragged. According to him, if the deceased was dragged there, some abrasions ought to be there also. Independent blows caused all these injuries. The digested food was not decipherable. If the deceased had taken his full diet, it must have taken 5/6 hours before the incident. He had received the papers on 18.1.1986 at 2.30 p.m. for post-mortem.

P.W. 5 Dwarika Singh is the Head Constable, who had prepared the check F.I.R. and G.D. report on receipt of Ext. Ka-1 from the informant Bajrangi Singh. He proved them as Exts. Ka-3 and Ka-4. According to him the report was registered at 9.15 p.m. on 16.1.1986. In cross-examination he stated that the Investigating Officer had taken up the investigation immediately and moved for the spot. The name of the Investigating Officer is Mahima Rai. He did not return from the spot to the police station that night. He had denied that the F.I.R. was ante-timed.

P.W. 6 Raj Kumar Rai has escorted the dead body for post-mortem to the mortuary at B.H.U. He identified the body before the doctor. He claimed that the dead body was carried by him on a tractor. He took about 7 hours in reaching B.H.U. mortuary as the tractor developed some snag and there was also jam on the G.T. road. They started immediately on receipt of the dead body from the spot. He started from the spot with the dead body at 9.30 a.m. on 17.1.1986. He denied that the dead body was handed over to him belatedly because till then the F.I.R. was not ready.

P.W. 7 Jaswant Singh is the S.I., who recovered the body under the direction of the Investigating Officer, Mahima Rai (P.W. 10).

P.W. 8 is Ram Bilash Singh. He was examined to prove the arrival of Sheo Murat at his house in the evening on 18.1.1986. He admitted that the witnesses and the deceased were his distant relations. They were born from the same ancestor. His statement u/s 161, Criminal Procedure Code was recorded a day after the occurrence in the evening at about 8.00 p.m. He denied that the deceased along with two witnesses did not come to his house on the date of occurrence and he is falsely deposing on account of his relationship with these witnesses.

P.W. 9 Kamala Prasad Pandey is the first Investigating Officer He had arrested Bhola and Shiv Nath, who disclosed about the presence of the body in the room of their house and agreed to get it recovered.

P.W. 10 Mahima Rai is the S.H.O., who immediately, on arriving at the spot, took up the investigation from P.W. 9 Kamla Prasad Pandey. He completed the investigation. This is the entire evidence examined by the prosecution is this case.

The Appellants have denied the prosecution story. Appellant Ram Kumar has stated that he is leader of Harijan and people of Gond community. He was opposing the harassment of people of Harijan and Gond community by Thakurs. On account of this animosity, Thakurs of the village had involved him and his family members in the offence. He further stated that the informant and the witnesses are in collusion with the police.

Appellant Bhola also stated the same facts that Appellant Ram Kumar had stated.

Appellant Kanhai stated that he is brother of Appellant Ram Kumar. Thakurs are annoyed with him and, therefore, his entire family was roped in the offence.

Two accused who were tried along with the above three Appellants were acquitted by the trial court and, therefore, Government appeal was admitted and connected with the above criminal appeals.

Coming to the statement of the informant P.W. 1 Bajrangi Singh, we find that he was not an eye-witness. His evidence does not inspire our confidence. He pleaded ignorance about pendency of any complaint of assault by Sushil Kumar against his son Abhimanyu and Jokhu. He further denied any knowledge that Ram Kumar is a witness in this complaint case. He further denied that any meeting was called by the S.D.M. concerned between Thakurs and Brahmins on the one side and Harijans and people of Gond and backward community on the other side on any application of Ram Kumar made to the District Magistrate to the effect that Brahmins and Thakurs of his village are harassing the Harijans and others belonging to weaker sections of the society. The S.D.M. secured a compromise and submitted a report to this effect to the District Magistrate and a copy of the same was sent to the S.H.O. concerned also. He was shown two papers regarding compromise. He denied his signatures on it. These papers were brought on record. On a comparison by naked eye, these signatures tally with his signatures on the statement as well as on the order sheet. These are paper Nos. Exts. Ka-31 and Ka-32. He had also pleaded ignorance about the existence of a report by Ram Kumar against his son Abhimanyu and Jokhu u/s 323, Indian Penal Code This report has been proved by S.I. Mahima Rai on record. It is Ext. Ka-15, dated 7.1.1986. This report shows that Abhimanyu Singh, Jokhu Singh, etc., all sons of the informant, were accused in this case. He admitted that his son Sheo Murat had not gone to police station Sayed Raza in his presence, but had informed him during the day about his being called by Mahima Rai, the S.H.O. This was told to him at about 12.00 or 1.00 p.m. According to him, conveyance were freely available on the road between Jamaniya and Sayed Raza and a bus alone did not ply between Sayed Raza and Jamaniya. Bus service is frequent in this route. He further stated that there is a bus stand in village Barhani. There are many shops of sweets, tea and betel in the vicinity of this bus stand. Bus stand is near a school. He denied that any chaukidar lived in the school. According to him that Harijan Basti is at a distance of 100 steps. Dixit Nagar he stated that it is little over 500 steps from this school. There is a farm belonging to Dixit Ji in the vicinity and a servant, Ramakant Tiwari, of his village lives there. He admitted that he made no enquiry from him on the night of occurrence. Even later on, no such enquiry was made from him. He pleaded ignorance that large number of villagemen assemble at Dixit Agricultural Farm House daily in the evening. He also denied that the people used to stock their harvested crop there. He admitted that all the sons of Sheo Nath are accused in this case. Bhola is son of Ram Kumar Appellant. The sons of these accused persons live in the village abadi but claimed that these accused also live in the Pahi in the night.

From his statement, it is apparent that the Appellants have their residential house in Harijan Basti, which is about 100 yards from the place of occurrence, as given out by him. The question of their living in Pahi in the night in the circumstances does not arise. He claimed that he was all alone at his house when P. Ws. 2 and 3 told him about the murder of his son. Both of them disclosed the information to him. He himself did not ask anything from them. He started from his house half an hour after the receipt of the communication from them. He did not raise any alarm in the village nor collected any people. He stayed before the house of these Appellants for a moment and noticed no evidence of any movement there. Thereafter he proceeded to the police station on his bicycle. He did not make any search for his son in the vicinity of the place of occurrence or in the field before going to police. Many fields abut the house of the Appellants. His explanation is that since he was convinced that there is no life in the house of the Appellant which is by the side of road, so he straightaway proceeded towards the police station. He did not ask any of his fellow villagers to search for the body of Sheo Murat. He prepared the report on the way. He did not know the name of the shop-keeper where he wrote his report. He denied that Sayed Raza market did not fall on G.T. Road and it is on the other road leading towards north. He did not make any enquiry even at Barhani Bus Stand also. He carried the report in his hand without folding it though he was paddling a cycle. He came with policemen to the spot of occurrence within half an hour. No memo of inquest was prepared in the night, according to him. No lantern or gaslight was arranged during night. He admitted that he knew his co-villager Ram Vilas Singh. He is on visiting terms, yet he pleaded ignorance about knowing any of his daughters. There are 100-150 houses of Thakurs in the village. He denied that any rumour of illicit intimacy between the deceased and the daughter of Ram Vilas Singh was in circulation in the village and for this reason, the murder of Sheo Murat Singh was committed by some unknown person. No one had seen the Appellants committing this murder was also denied by him. They were involved due to village enmity was also denied by him. Thus, the fact that he made no search of the dead body before proceeding to the police station is an unnatural conduct on his part in our opinion. How he presumed that his son is dead before the discovery of the body is beyond our belief. He did not state anything about the discovery of dead body from the Pahi of the Appellants that night. His evidence that the inquest was not prepared during night and no lantern or gaslight was arranged shows that the body was not recovered at all during the night is falsified from subsequent discussions we propose to make.

The inquest memo and the admission made by P.W. 9 S.I. Kamla Prasad Pandey renders this part of his statement absolutely false. From these facts and circumstances, the report, Ext. Ka-1, lodged by him is also rendered highly doubtful. He is father of the deceased. He stayed for half an hour at his house after receipt of the information without making any hue and cry in the village is a most unnatural conduct. It is unworthy of any belief. He is contradicted by P.W. 3 who stated that he did not give any information to Bajrangi though this witness claimed that both of them told him. In these circumstances, his evidence is not of much help to the prosecution. He is an inimical witness and deliberately denied all facts of enmity. He denied knowing the existence of Dalpati Shah Adivasi Sishu Vidyalaya in his village and that it was established by Ram Kumar. He did participate in the function held on 15th August, 1982. His signatures are available on paper No. Ka-33, a notice for holding such a function.

The next submission made by learned Counsel for the Appellant is that the F.I.R. in this case is ante-timed. This fact is proved from the noting made by P.W. 9 S.I. Kamla Prasad in the inquest memo. In the inquest memo, no time of lodging of the report is mentioned. This space is left blank. No weapons are also mentioned therein. The fact mentioned is Dhardar Hathiyar Se Marna. P.W. 9 has categorically admitted that he did read the F.I.R. before proceeding to the spot but did not carry its copy or G.D. with him. This is wholly unbelievable. It is a wholly false explanation. He reached the spot around 10.00 p.m. P.W. 10 also said that he received the information from two constables at Qasba Sayed Raza where he was on gast duty and he straightaway proceeded to the spot from there. He also did not state that he had received the relevant papers including the F.I.R. There is a mention in the memo of inquest that inquest could not be prepared due to non-availability of sufficient light. This is a fact which clearly reveals that the dead body was discovered during the night itself and nothing was done during the night after their arrival on the spot by P.W. 9 or P.W. 10 because no version of the incident was available to the police till then. Only inquest was prepared in the morning on 17.1.1986 after the sunrise. P.W. 9 had failed to explain this entry in the inquest memo. In the abovesaid circumstances, we are of the opinion that the F.I.R. was transcribed much later than the time alleged by the prosecution. The body apparently was noticed by someone who informed P.W. 1 and the entire story was cooked up in the morning in connivance with the police in which arch enemies belonging to the family of Ram Kumar Gond were involved in the incident against whom Thakurs had some grudge. From the evidence of the three witnesses, it is apparent that there was enmity between Ram Kumar and the Thakurs of the village. A panchayat was held by S.D.M. in order to resolve their dispute is also proved. Thus, no value could be attached to the contents of this F.I.R. Non-examination of any independent witness of the vicinity or the village who accompanied him to police station further adversely affects the prosecution and creates serious doubt in the truthfulness of the version.

The next submission was that the dead body was not recovered on the pointing out of Shiv Nath and Bhola from their house situated by the side of the road on 18.1.1986 in the morning. The story about the recovery of the dead body from the alleged room is highly doubtful. In this regard, noting in the inquest memo is made use of by learned Counsel for the Appellant, Sri A. D. Giri. According to him, the note made in the inquest memo that inquest could not be taken up during night because of paucity of light goes a long way to discard the recovery in the morning. It further leads to the inference that the dead body was recovered during night itself. It further proves the arrest of Shiv Nath and Bhola highly doubtful. On the contrary, it proves their innocence. Had they been assailants, it would have been impossible to arrest them from their house. They allege that they were arrested from their house. We are inclined to accept it. It further goes to suggest that the dead body was not recovered from their kotha at their pointing out. There is enormous delay in sending the dead body for post-mortem. It further strengthens the defence suggestion that the recovery, though was made in the night itself but the F.I.R. was prepared belatedly and, therefore, the body reached to the doctor on 18.1.1986 at 2/2.30 p.m. The distance of the mortuary from the village of occurrence is only 45 Kms. Had the F.I.R. been ready, the body would have been searched and recovered on 16.1.1986 itself. According to constable''s version the dead body was handed over to him on 17.1.1986 at 9.30 a.m. for being taken to the mortuary. Yet there is no explanation as to why he handed over the body to the doctor on 18.1.1986 at 2.30 p.m. along with the papers. We have no doubt in our mind that the F.I.R. did not come in existence till 17.1.1986. After a long deliberation the F.I.R. was prepared and that is why the dead body was sent to mortuary so belatedly. The explanation offered by P.W. 6 is not acceptable at all that the vehicle developed a snag and there was a jam on G.T. road. He claims that it took him 7 hours in reaching the mortuary because some snag was developed in the tractor and also there was a jam on the G.T. road. Even if we accept their case, the body ought to have reached the mortuary by 5.30 p.m. and the paper should have been handed over to the doctor that very day or in the morning. Why they were handed over at about 2/2.30 p.m. to the doctor on 18.1.1986 remain wholly unexplained.

Now we will deal with the evidence of two eye-witnesses who were examined in this case, P.W. 2 Shiv Pujan Singh and P.W. 3 Subedar Singh. So far as Shiv Pujan Singh and Subedar Singh are concerned, their evidence shows that they had hardly any affinity with the deceased. Shiv Pujan Singh claimed that the deceased came to his house and asked him to accompany to the police station. This could only be done if there is some intimacy between the two. Apart from it, the finding that the F.I.R. in this case was ante-timed and the dead body was not recovered as alleged by the prosecution further offends their testimony beyond repair. These witnesses have given no reason to accompany the deceased to the police station and thereafter further accompany him to Ram Vilas Singh''s house. Their conduct is such that it does not inspire confidence. They had left for their houses immediately after informing Bajrangi Singh. According to them, they thereafter did not make any effort either to locate the dead body or find out what happened to Sheo Murat Singh whom they accompanied that day. Their going to Sayed Raza is not corroborated by Investigating Officer Mahima Rai. If they had gone there along with the deceased, at least this much must have been known to Mahima Rai but he did not make any such statement in his examination-in-chief. He also did not state that deceased was even called by him. P.W. 3 has denied to have given any information to Bajrangi Singh. Only P.W. 2 Shiv Pujan Singh did it. According to the evidence of P.W. 8 Ram Vilas Singh, the informant, these witnesses and he himself belong to the same family tree. They have a common ancestor. So they are inter se related. Therefore, their statements that they do not know anything about Sheo Murat Singh or where he was posted before the murder in the army cannot be accepted. They have denied about the enmity. Though one of them admitted that Sheo Murat had no work at P.S. Syed Raza. It clearly means that Sheo Murat deceased had no purpose of his visit to anyone of them. One of them Subedar denied his presence in the compromise meeting held by S.D.M. and signed the compromise. Papers Ka-31 and Ka-32 bear his signature. They tally with his signatures on his statement and order on a comparison from naked eye. They have even denied the existence about the enmity between Ram Kumar and the son of the informant including Sheo Murat Singh as is apparent from Ext. Ka-15. They have motive to depose against Harijans, i.e., the Appellants. Report of 107/116 lodged by Ram Kumar against three sons of the informant was admitted by the Investigating Officer. Other documents regarding holding of panchayat and a settlement arrived at the instance of the S.D.M. in that panchayat between the warring groups is also proved by circumstances. They have denied these facts deliberately. It is in their evidence that they had seen the dead body being dragged by its legs. Abraded contusions on the forehead, eye and cheek in such a situation are improbable to occur. Similarly, an abraded contusion on left side chest is not probable. The doctor stated that they were caused by independent blows. Their presence at the spot at the time of occurrence, therefore, cannot be accepted. Thus, we do not find their evidence inspiring any implicit confidence that they had accompanied the deceased and also saw the incident. This was, in our opinion, a blind murder. Non-examination of independent witnesses though presence of theirs was admitted, further adds strength to our conclusions. They fully knew that Ram Kumar had started a school to educate Harijans and children of other downtrodden communities but the fact deliberately denied by them. It is admitted by one of the two eye-witnesses that Ram Kumar is leader of Gonds and Harijans. Even if we ignore from our consideration paper Nos. Ka-31 and Ka-32 the result shall remain wholly unaffected.

In the light of the above discussions, we are of the opinion that Criminal Appeal No. 2705 of 1987 deserves to be allowed and Government Appeal No. 550 of 1988 and Criminal Revision No. 1939 of 1987, against the acquittals of two accused Respondents are liable to be dismissed. Accordingly, Criminal Appeal No. 2705 of 1987 is allowed and both Government Appeal No. 550 of 1988 and Criminal Revision No. 1939 of 1987 are hereby dismissed. These Appellants are acquitted of the charges for which they were convicted and sentenced. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are hereby discharged.