Ram Manohar and Others vs State of U.P.

M.C. Jain, J.—There are five Appellants, namely. Ram Manohar, Sheor Dulare, Hira, Babu Lal and Moti Lal. They have preferred this appeal against the judgment and order dated 2nd of August, 1980 passed by Sri N.K. Maheshwari, the then II Additional Sessions Judge, Fatehpur in Sessions Trial No. 195 of 1979. Out of them, Hira Lal has been convicted u/s 147. I.P.C. and sentenced to one year''s rigorous imprisonment. He has further been convicted u/s 302 read with Section 149, I.P.C. and sentenced to undergo imprisonment for life. He has also been convicted u/s 323, I.P.C. simplictor and sentenced to one-year''s rigorous imprisonment. The remaining four Appellants have been convicted u/s 148, I.P.C. and each of them has been sentenced to two years rigorous imprisonment. Each of them has further been sentenced u/s 302/149, I.P.C. and sentenced to life imprisonment. Each of them has also been convicted u/s 323/ 149, I.P.C. and sentenced to one year''s rigorous imprisonent. All the sentences of each accused have been directed to run concurrently.

The apellants Ram Manohar and Sheo Dulare are real brothers. The Appellant Babu Lal is the son of the sister of the wife of Ram Manohar and the Appellant Moti Lal is the brother of the wife of Ram Manohar. The apellant Hira is said to be on family terms with remaining apellants.

The murder of one Ram Pal is involved in the case which took place on 9.6.1976 at about 9.30 p.m. in village Deoli, P.S. Thariyawan, District Fatehpur. The F.I.R. of the incident was lodged at the concerned Police Station, Thariyawan by the deceased''s brother Jagat Pal on 10.6.1976 at 6.30 a.m. the distance of the Police Station was three kilometres: It had been scribed by Sunder Lal, P.W. 5. The informant Jagat Pal died a natural death before his evidence could be recorded in the trial. The prosecution case as per the F.I.R. and the evidence adduced in the Court was that at about 5 p.m. on the day of occurrence, the deceased Ram Pal was taking his cattle for grazing towards his field. When the cattle reached near the door of the accused-Appellant Ram Manohar, they started eating his grains spread on a cot. Ram Manohar took ill of it and an altercation between him and the deceased Ram Pal took place. Ram Manohar had then abused Ram Pal and offered threats to him. On return from the field with cattle, Ram Pal informed his brother Jagat Pal of what had happened. His wife Smt. Jamuna Devi. P.W. 3. also heard the conversation between Ram Pal and Jagat Pal in this behalf. The same night at about 9.30 p.m. Ram Pal was sitting on a cot in the open land situated in the north of his house. Chhangu, P.W. 1 was also sitting there and talking with him. The deceased complainant Jagat Pal was also there. Smt. Jamuna Devi, P.W.3 wife of Ram Pal was also sitting just near and outside the main door of her house opening towards northern side. The five accused Appellants came over there from the western side. The accused-Appellant Hira Nai was armed with a Lathi whereas the remaining four were armed with guns. It was a moonlit night. Accused-Appellant Ram Manohar said that it was a good opportunity to kill him. Ram Pal got up from the cot and ran towards the eastern side. The Appellants chased Ram Pal. After covering a distance of about 5-6 paces towards the eastern side, the accused-Appellant Sheo Dulare and Babu Lal opened fire on Ram Pal but the shots missed the target and hit the bullock of Manni Lal P.W. 4, tied on his Cattle trough in the eastern side. The bullock died. Ram Pal turned to and ran towards south and reached under the thatch of Jagat Pal. Chhangu, P.W. 1 and Jhalloo also ran and reached near the cattle trough of Manni Lal, P.W. 4 along with Jagat Pal and Smt. Jamuna Devi. P.W. 3. Ram Manohar fired a shot from his gun which hit Ram Pal at the back head when he was near the thatch of Jagat Pal. Ram Pal entered the Kothri of Jagat Pal and turned towards the east. He wanted to close the door. Just then the accused-Appellant Moti fired on him which hit him in his abdomen. Ram Pal fell down on the ground inside the Kothari and died. At that time, Kesariya, wife of Jagat Pal was cooking food under the thatch. When Ram Pal fell down, his wife Smt. Jamuna Devi, P.W.3 reached near the thatch, weeping and wailing. The accused-Appellant Hira Nai then struck 2-3 lathi blows on her. The witnesses continued to raise alarm from near the cattle trough of Manni Lal. P.W.4. The accused persons ran away towards the southern side. Thereafter all the witnesses went inside the Kothari where Ram Pal was lying dead. Sunder Lal, P.W. 5 is the son of the sister of the deceased and is resident of village Taksaria. After the incident, he was called through Ram Sahai and the report Ex.Ka 3 was dictated to him by Jagat Pal under the thatch. On its lodging it at the Police Station next day at 6.30 a.m. by Jagat Pal a case was registered and investigation was started by A.S. I Rajendra Kishore, P.W. 6 but was concluded by S.O. Ram Mohan Rai. After the investigation, a charge-sheet was Lald against the accused-Appellants who were tried and convicted and sentenced as stated earlier.

It would be useful to state here that post-mortem over the dead body of the deceased Ram Pal was conducted by Dr. Avinash Chand Srivastava. P.W.2 on 11.6.1976 at 12.30 p.m. As per the post-mortem report Ex.Ka-1, the deceased was aged about 42 years and about 1-1/2 day had passed since he died. The following ante-morterm injuries were found on his person:

Gun shot wound of entry 1"x 1" x through and through over abdomen 6" below left nipple. Blackening and tattooing were present. Directed from interior to posteriorly. Margins were inverted. Spleen, left kidney and large intestine were lacerated. Wadding pieces were recovered from spleen.

Gun shot wound of exit (8 in

number) each measuring 1/4" x 1 /4" in an area of 4" x 3" on left side of back 1" above iliac crest. No blackening was present. Margins were everted. There are the exit wounds of injury No. 1.

Gun shot wound of entry 1-1/2 x 1-1/2" x through and through on the back of head at the level of and 3" behind left ear. Fracture of 1st and 2nd cervical vertebra present. Brain, larynx, trachea and tongue were lecerated. 25 small shots were recovered from the brain and 32 from the mouth and mandible. Multiple fractures of mandible were present.

Gun shot wound of exit 4" x 1 -1/3" on chin. Margins were everted and lacerated. This is also exit wound of injury No. 3.

The Doctor took out 57 pellets and few pieces of wadding from the dead body of Ram Pal. The death had occurred due to shock and haemorrhage as a result of fire arm ante-mortem injuries.

The injuries of Smt. Jamuna Devi P.W 3 had been examined on 10.6.1976 at 8.40 a.m. which were as follows:

Lacerated wound 3/4" x 1/10" x skin deep on the left side of face 2" behind the left angle of mouth.

Lacerated wound 2/10" x 1/10" on the outer surface of pinna of left ear in the middle.

Contusion 1-1/2" x 1-1/2" on the right side of forehead 1 /2" above the right eyebrow. Colour was red.

All the injuries were simple and had been caused by some blunt weapon. They were about one day old.

Post-mortem was also conducted over the carcass of the bullock of Manni Lal, P.W. 4 on 16.6.1976 by a veterinary surgeon in the village itself. The animal had received gun shot injuries.

At the trial, the prosecution examined six witnesses out of whom Chhangu, P.W. 1, Smt. Jamuna Devi. P.W. 3 and Manni Lal. P.W. 4 were the eye witnesses of fact. P.W. 2 was Dr. Avinash Chand Srivastava, who had conducted autopsy on the dead body of the deceased. Sunder Lal. P.W. 5 was the scribe of the F.I.R. and Rajendra Kishore, P.W. 6. was the Investigating Officer of the case.

Accused-Appellants pleaded not guilty. According to them, they had been falsely implicated. The contention of the accused-Appellant Hira was that the deceased Ram Pal had been tried for the murder of one Vishnu Dutt and he had appeared as a witness from the side of the prosecution in that case and for that reason, Jagat Pal falsely implicated him.

The learned Additional Sessions Judge found that the case u/s 429, I.P.C. for killing the bullock of Manni Lal, P.W. 4 was not proved against the accused-Appellants, because the killing was not deliberate and the animus to kill the animal was not there. However, he believed the prosecution case and the evidence as regards the other offences wherefor the accused-Appellants had been charged. He accordingly convicted and sentenced them as mentioned in the earlier part of this judgment.

We have heard Sri Amar Saran learned Counsel for the Appellants and learned A.G.A. from the side of the State at length and have carefully gone through the evidence and material on record. Learned Counsel for the Appellants has argued that there was no motive on the part of the accused-Appellants to commit the crimes; that the incident took place sometime late in night and not at 9.30 p.m. as alleged by the prosecution; that there was no common bond amongst the accused-Appellants and that eye witness account is not reconcilable with the medical evidence as contained in the post-mortem report of the deceased.

On a thoughtful consideration, we are of the opinion that there are several black spots and unexplained factors which render the prosecution case and evidence to be doubtful. We intend to deal with these factors in succeeding discussion one by one.

At first, we take up the question of motive. No doubt, motive is not evidence in a case but at the same time it satisfies the judicial mind about the authorship of a particular crime. In the case at hand, the motive assigned by the prosecution wholly weak and infirm, incompatible with crime. The motive is said to be that at about 5 p.m. the same day when Ram Pal was taking his cattle to his field to graze, they started eating the grain spread by Ram Manohar on a cot outside his house falling in the way. Over it, some altercation allegedly took place between Ram Manohar accused Appellant and deaceased Ram Pal and the former offered threats to the latter. Having regard to the natural conduct of an ordinary human being, it could not be a sufficient motive for five persons joining hands to murder Ram Pal a few hours later. It is also significant to note that of them, Babu Lal is a resident of another village Ratanpur at a distance of about 3 Kos from the village of the incident and Moti is also a resident of another village Banpurwa at a distance of about 4 Kos from the village of the incident. No doubt, both of them are the relatives of the accused-Appellant Ram Manohar whose brother is Sheo Dulare accused-Appellant. But it does not stand to logic that they would have been called by Ram Manohar or Sheo Dulare after cattle grazing incident from their respective villages to join hands with them in this incident. Even if it is assumed that they were in the village from before having come to Ram Manohar, it is illogical that they would have participated in the commission of this crime without any personal or strong reason. So far as the accused-Appellant Hira Nai is concerned, it is not shown that he had any common bond with Ram Manohar and Sheo Dulare or was thick with them and would have joined them with premeditation to cut short the life of Ram Manohar over the insignificant altercation that had taken place between him on one hand and Ram Manohar on the other over the eating of grain by the cattle of Ram Pal. The fact is also there that the accused-Appellant Hira had earlier appeared as a witness against the deceased Ram Pal in the case of the murder of Vishnu Dutt. So, the motive assigned by the prosecution against the accused-Appellants for the commission of the crime is like a square peg in a round hole.

Secondly, it arouses great suspicion as to why the report was not lodged in the night itself. To say in other words, the lodging of the F.I.R. the next day at 6.30 a.m. is shrouded in dubious circumstances. The distance of the Police Station from the place of occurrence was only three miles. It has come in the

testimony of I.O. Rajendra Kishore, P.W. 6 that Police Station, Thariyawan is at a distance of 14 miles from Fatehpur on G.T. Road. The distance of Fatehpur from village Deoli (place of occurrence) is 11 miles. Deoli is away from G.T. road at a distance of three furlongs only. It has also come in the testimony of Smt. Jamuna Devi, P.W. 3 wife of the deceased that Sunder Lal, P.W. 5 had reached the village in the night itself who had been called through Ram Sahai. The statement of Sunder Lal, P.W. 5 is that the distance of his village Taksari from the place of occurrence is five miles and the distance of his village from Police Station is two miles. Smt. Jamuna Devi, P.W. 3 has also stated that F.I.R. was scribed in the night itself. If Ram Sahai could go to call Sunder Lal, P.W. 5 to another village at a distance of about five miles in the night itself and he had come in the night itself whereafter he had scribed the F.I.R. in the night, there does not appear to be any reason for not lodging the F.I.R. in the night itself at the Police Station, situated at a shorter distance of three miles on main G.T. Road which was only three furlongs away from the village of occurrence. The non-lodging of the F.I.R. in the night itself leads to a justifiable inference that there had been deliberation as to the contents of the F.I.R. and about the persons to be named therein as culprits.

Suspicion in the above regard arises when the matter is judged in the light of Panchayatnama Ex. Ka. 5. sketch of dead body Ex. Ka-6 and Chitthi Ex. Ka-10. A bare sight of these documents shows that initially only Section 302, I.P.C. had been written thereon. Other Sections, i.e., 147. 148, 149 and 323 and 424, I.P.C. were inserted later on. The Panchayatnama is show-, to have been started on 10.S. 1976 at 10 a.m. and finisheo ai 11.30 a.m. In case the F.I.R was ready and had been lodged earlier to the preparation of Panchayatnama and other related papers necessary for post-mortem, there does not seem to be any reason as to why all Sections of I.P.C. whereunder the case was registered were not incorporated in one go. The interpolation or addition of sections in the documents aforesaid creates a genuine doubt as to actual time when the F.I.R. was lodged. The learned A.G.A. argued that the accused side did not interrogate the Investigating Officer in this behalf and as such no inference can be drawn on the basis of the same. In this regard, we would like to refer to the case of Bandhu v. State XXXV 1997 ACC 245 (LB). In that case also, the discrepancies arising out of Panchayatnama and Challan Lash were not put to Investigating Officer when he was in the witness box. It was held that it was not for the defence to fill in the lacuna in the prosecution evidence it was for the prosecution to have explained the fact incorporated in these documents. The prosecution had not tried to get explained the facts incorporated therein from the Investigating Officer and the benefit thereof was afforded to the accused. The present case stands on identical footing and it does not lie in the mouth of learned A.G.A to say that it was the duty of the defence to have got these documents explained by interrogating the Investigating Officer. We are of the opinion that the F.I.R. was not even lodged on 10.6.1976 at 6.30 a.m. as purported but it was lodged sometime later after the Panchayatnama and other related papers had been prepared. In other words, even at the time of preparation of Panchayatnama, the prosecution was not certain about its story and about the actual culprit(s).

Another important factor which gives serious jerk to the prosecuting case is that the testimony of Chhangu, P.W. 1 as to where the deceased received the first shot fired by Ram Manohar on the back of his head does not reconcile with the testimony of the other two, i.e., witnesses. The version of Chhangu, P.W. 1 is that Ram Pal was under the thatch of Jagat Pal when he received the shot fired by the accused-Appellant Ram Manohar. Thatch was situated outside the Kothari of Jagat Pal in which the deceased allegedly received the second shot fired by Moti accused-Appellant when he (Ram Pal) was trying to close the door of the Kothari. The second gun shot wound of entry had been received by the deceased in his abdomen. On the other hand, Smt. Jamuna Devi, P.W. 3 wife of the deceased and Manni Lal, P.W. 4 have stated that Ram Pal received both the shots one opened by Ram Manohar and the other by Moti, when he was trying to enter the Kothari of Jagat Pal. Manni Lal. P.W. 4. has also stated that the first shot hitting the deceased had been fired by Ram Manohar. Ram Pal had turned to close the door of the Kothari. There is noticeable conflict between the ocular version and the medical evidence as contained in the post-mortem report and the evidence of Dr. Avinash Chand Srivastava, P.W. 2 who conducted autopsy on the dead body of the deceased. As mentioned above, the deceased received two shots, one on the back of his head and the other in his abdomen. This is the prosecution evidence that the first shot opened by Ram Manohar was received by him in the back of his head. Having regard to the seats of the two gun shot wounds of entry received by the deceased (one on the back of the head and the other on the abdomen), it is abundantly clear that while receiving the shot in the back of his head, his back was towards the assailants and at the time of receiving the other gun shot wound in the abdomen, he was facing them. The clear statement of Dr. Avinash Chand Srivastava, P.W. 2 is that victim would have died instantaneously on receiving shot on the back of his head and it could not be possible for him to cover even a pace or two. In this view of the matter, it is not acceptable that the deceased could go inside the Kothari of Jagat Pal from under the thatch where he allegedly received the shot in the back of his head as per Chhangu, P.W. 1. He would have fallen down and died instantaneously on receiving this shot on the back of his head as per the medical evidence, which according to the ocular testimony, was the first shot received by him. In the circumstances, there could hardly be any occasion for his facing the assailants and receiving the second shot in his abdomen. In case the shots had been received by him while entering the Kothari of Jagat Pal. then also he could not be in a position to turn and face the assailants in an attempt to close the door after receiving the first shot in the back of his head. This shot on the back of his head being the first and fatal, he would have fallen down and died instantaneously without any opportunity of facing the assailants whereafter a shot could be fired on him in the abdomen. So, the point of the matter is that the receipt of the two gun shot wounds of entry by the victim, the first on the back of his head and thereafter in his abdomen is not capable of being explained by the statements of the eye witnesses. Thus, the serious conflict between ocular testimony and medical evidence creates a genuine doubt about the manner in which the incident is said to have taken place as per the eye witness account.

Lastly, the prosecution case is that it was Hira accused-Appellant who had given 2-3 lathi blows to Smt. Jamuna Devi, P.W. 3 after Ram Manohar and Moti had opened fire on her husband Ram Pal. At that time, she had allegedly reached under the thatch of Jagat Pal. Neither she nor any of the remaining eye witnesses stated that she or any other witness had tried to block the way of the accused persons and had attempted to apprehend them. Neither she nor any other witness was armed with any weapon. It rubs against natural human conduct that after finishing the job of murdering Ram Pal, Hira would have struck 3-4 lathi blows on Smt. Jamuna Devi, P.W. 3 when neither she nor any other witness was creating any obstacle in the running away of the accused persons. The natural conduct of the accused would have been not to tarry at the spot even for a second and to have run away.

Touching the different aspects of the case in the light of the judicious evaluation of the evidence on record, we are of the opinion that the prosecution story has been reconstructed and the evidence has been attempted to be tailored accordingly. But several unpatchable holes are visible and the evidence of the prosecution does not stand a close scrutiny. The ocular version is in conflict with the medical evidence also as discussed hereinabove. The distance to be bridged between ''may'' and ''must'' has not been bridged and covered in this case by the prosecution. It has left the gulf unbridged. leaving many things in the womb of mystery and it is not possible to salvage the prosecution case out of this gulf. Dark clouds of doubt hover all around, benefit whereof has to be afforded to the accused-Appellants. A golden thread which runs through the web of the administration of justice in criminal cases is that it is for the prosecution to prove its case to the hilt by clinching and trustworthy evidence. In the present case, the prosecution has miserably failed to discharge this burden. The possibility is also very much there of the false implication of some of the accused and it is not at all possible to arrive at a definite conclusion in this regard as to who are the accused-Appellants who have been falsely roped in. Otherwise also the whole prosecution case suffers from patent weaknesses and the conflict between the medical and ocular version also stares in the face.

For the reasons contained in the discussion made hereinabove, we finally reach the conclusion that the prosecution case against the accused-Appellants is not free from doubt and the Appellant are entitled to the benefit of doubt. We therefore, allow this appeal and set aside the judgment and order dated 2.8.1980 passed in S.T. No. 195 of 1979. The accused-Appellants Ram Manohar, Sheo Dulare, Hira, Babu Lal and Moti Lal are acquitted of the charges framed against them. The accused-Appellants are on bail. They need not surrender. Their personal bonds and bail bonds are hereby cancelled and sureties discharged.