Ram Raj (Ram Raj Singh) and Others vs State

Pratyush Kumar, J.—The instant criminal appeal, filed by the accused-appellants, is directed against the judgment and order dated 19.09.1981 passed by Sri S.K. Verma, III Additional Sessions Judge, Gonda passed in Sessions Trial No. 164 of 1979 [State v. Ram Raj Singh and six others] whereby the accused-appellants were convicted and ordered the following sentences to all the seven appellants:

":2 years RI under Section 147 I.P.C.

:2 years RI under Section 328 I.P.C.

:Life imprisonment U/s 302/149 I.P.C.

Jaswant Singh :2 years RI U/s 148 I.P.C.

too Kamal Singh :"

In the appeal the prosecution case is that on 29.03.1979 at about 7.00 PM when the first informant Sadhuram Bhat went to the house of the Jaswant Singh to make a complaint about the grazing of his wheat crop by the she buffaloes of Jaswant Singh, on that Jaswant Singh became annoyed and he alongwith Ram Raj Singh, Naresh Singh, Kamal Singh, Chandra Pal Singh, Chhatrapal Singh, Pateshwari Singh armed with Lathis, Ballam and Farsa chased him and near the field of Ram Dularey assaulted him, when he raised hue and cry, Chhotey Lal Murao, Ram Chhabiley, Ram Abhilakh, mother of the first informant, his brother Puttu Lal, Prem, Ram Jage, Ram Pheran and others reached there to rescue him, on that the accused persons also started to beat them. In the marpeet his brother Puttu Lal, his mother, Ram Chhbiley sustained injuries. Meanwhile due to old enmity, they struck Lathis, Ballams and Farsas'' blows on Chhotey Lal Murao to murder him, he sustained serious injuries and his condition was bad. The accused persons were of the same family.

On this written report Exhibit Ka-8 dated 30.03.1979 at 7.20 AM Case Crime No. 18 of 1979, under Sections 147, 148, 149, 323, 324, 327 I.P.C. was registered at Police Station Lalia, District Gonda (presently district Balrampur). Chik FIR exhibit Ka-11 was scribed. Relevant entry in the General Diary was made. Injured were medically examined. Investigation was started. During the treatment in the early morning of 31.03.1979 at Shivpura Hospital at 3.50 AM injured Chhotey Lal Murao succumbed to his injuries. Section 302 I.P.C. was also added with the Sections already charged.

4 On the dead body of Chhotey Lal Murao inquest proceedings were conducted. Autopsy was performed. After completion of investigation charge-sheet was submitted against all the seven accused persons.

On the basis of the charge-sheet cognizance was taken. The case was committed to the Court of Session where the accused were charged under Sections 147, 148, 323 r/w 149, 302 r/w 149 IPC. They pleaded not guilty and claimed to be tried.

On behalf of the prosecution in documentary evidence recovery memos, site plan, inquest report, medical examination report, postmortem report, report of the Serologist and chemical examiner, injury reports and charge-sheet were filed.

In oral evidence, the prosecution has examined Dr. S.K. Srivastava P.W.1, who conducted the postmortem and proved the postmortem report Ex. Ka-1. Dr. Naresh Kumar P.W.2, Medical Officer, who medically examined on 30.03.1979 at PHC Shivpura injured Puttu Lal, Sadhu Ram, Ram Chhabiley, Chhotey Lal and Smt. Badka mother of the first informant and proved their injury reports exhibited as Ex. Ka-2 to Ka-6.

On behalf of the prosecution witnesses of fact Sadhu Ram first informant P.W.3, Ram Pheran P.W.4, Prem Bania P.W.5 and injured Ram Chhabiley P.W.6 were examined, who have given eye witness account of the occurrence. As formal witnesses Pond Moharrir Baij Nath Singh P.W.7, who proved FIR, Ex. Ka-8, Investigating Officer, Ram Autar Singh P.W.8, who proved statement of Chhotey Lal recorded under Section 161 Cr.P.C. Ex. Ka-12, site plan Ex. Ka-13, recovery memo Ex. Ka-14, inquest report Ex. Ka-15, other papers requisite for sending dead body to mortuary Ex. Ka-16 to Ka-19. Recovery memo of taking blood stained clothes of the deceased Exhibit Ka-9, ASI Ram Murat Rai P.W.9, who proved chik FIR Exhibit Ka-11. Copy of the entry of the G.D. Exhibit Ka-29, copy of the GD regarding addition of Section 302 I.P.C. Exhibit Ka-21 and chitthi Mazrubi Exhibit Ka-22 to Ka-26, were examined.

After conclusion of the prosecution evidence statements of accused were recorded under Section 313 Cr.P.C. wherein they admitted their relationship with other co-accused, denied their litigation with Chhotey Lal Murao and consequent enmity. They denied the correctness of the facts emerging out of the eye witness account given by four eye witnesses. Regarding medical examination of the injured and deceased, they pleaded ignorance so is the case with. The steps taken by the Investigating Officer, according to them eye witnesses were giving evidence against them due to enmity. Two witnesses were examined in the defence, namely, Shiv Ram Mishra D.W.1 and Sadhu D.W.2. Gist of the defence evidence is that Chhotey Lal Murao was brought to hospital at 9.30 P.M. at that time there was no doctor at Primary Health Centre, Mathura, therefore, Chhotey Lal was referred to Shivpura Hospital in the morning. According to Sadhu D.W.2, two years ago during night he visited the place of occurrence and found Chhotey Lal, Ram Chhabiley and Sadhuram Bhat injured. During the night through Panchayat amicable settlement was arrived at and it was agreed that no one would report the matter to the police, thereafter twenty four hours had passed and the condition of Chhotey Lal was deteriorating. First, he was taken to Mathura hospital then to Shivpura. According to him the incident took place in between the house of Chhabiley and Sadhu.

After hearing the counsel for the parties, learned trial Judge rejected the defence version and arguments advanced on behalf of the defence and convicted the appellants and sentenced them accordingly.

All the seven accused preferred the instant appeal. During pendency of the appeal, appellant No. 1 Ram Raj (Ram Raj Singh), appellant No. 5 Chandra Pal Singh and appellant No. 6 Chhatra Pal Singh died. The present appeal stood abated to this extent.

We have heard Sri Arun Sinha, learned counsel for the four surviving appellants and learned Additional Government Advocate for the State and perused the record.

Learned counsel for the appellants would submit that the first information report was not dictated by Sadhuram Bhat P.W.3, it was delayed also. He has submitted that the learned trial Judge on the basis of the subjective opinion discarded the admission made by Sadhu Ram on this point and erroneously held the FIR to be lodged promptly without any delay. His next argument is that the learned trial Judge has erred in not believing the medical evidence that the injuries sustained by the deceased and the injured were caused on 28.03.1979 and wrongly relied on the ocular testimony and held that the occurrence took place on 29.03.1979 in the evening as alleged by the prosecution. His third argument is that statement of Chhotey Lal Murao recorded under Section 161 Cr.P.C. in contravention of Para-114 of the U.P. Police Regulations could not be taken into consideration as dying declaration which the learned trial Judge illegally did so. His one more argument is that the prosecution version is inherently unnatural and improbable, as there was no reason for the appellants to murder Chhotey Lal Murao. Lastly he has submitted that defence evidence has not been appreciated in legal perspective.

On behalf of the State all these arguments has been repelled and the findings recorded by the learned trial Judge have been vindicated by saying that there is no contradiction between the medical evidence, ocular testimony and ocular version of the incident given by the eye witnesses, are trustworthy.

The question of admissibility of the statement of Chhotey Lal recorded by the Investigating Officer under Section 161 CrPC need not detained by us for long because there was no compliance of Para-114 of the U.P. Police Regulations. Suffice is to say that in case of emergency the Investigating Officer could have recorded the statement of the injured Chhote Lal in presence of two independent witnesses; that he did not do so. The alleged dying declaration of Chhotey Lal is not admissible in evidence even for co-lateral purpose, hence we cannot accept the reason given by the learned trial Judge on this account and to this extent the impugned judgment suffers with illegality.

Two arguments, first regarding anti timing of the FIR and second discrepancies of the time of occurrence as reflected by the medical evidence and the eye witness account are interrelated. For the sake of inconvenience we deal them jointly in chronological order.

So far as probity of FIR is concerned, we have been taken through the cross-examination of Sadhuram Bhat P.W.3. In examination-in-chief, he says that on next morning he took the injured to Police Station Lalia and dictated the report to Pond Clerk of town Lalia, which is Exhibit Ka-8. Written report exhibit Ka-8 bears the endorsement that it has been written by Sri Baij Nath Singh, Pond Clerk, Lalia. Sri Baij Nath Singh, Pond Clerk was examined as P.W.7, who reiterated the prosecution version that on the dictation of Sadhuram Bhat he scribed the written report.

In the teeth to this evidence, learned counsel for the appellants has submitted that in Para-4 of his deposition Sadhuram Bhat P.W. 3, during cross-examination, specifically says that report was dictated by Ram Chhabiley, thereafter he was called to affix his signature. He did not know what was written, he was told that he had become first informant. For this reason he was required to sign. He further says that report was not written in his presence. He was made to sit elsewhere. He never visited the Pond of Lalia. He never met the Pond Clerk of Lalia.

The learned trial Judge in Para-15 of the impugned judgment has discarded this statement made by the first informant in his cross-examination on the basis that he was won over and he was following the policy of appeasement. We find that Sadhu Ram Bhat was not declared hostile and cross-examined by the Public Prosecutor. Regarding eye witness account, he did not controvert his earlier statement. In order to discard the admission made by him during cross-examination the learned trial Judge has assigned reasons which are not substantiated from the record. At the best they can be called conjectures. Such process of reasoning is not permissible and we find that the learned trial Judge has not appreciated the evidence in legal manner and the FIR was not dictated by Sadhu Ram P.W.3 rather it was dictated by Ram Chhabiley.

During cross-examination of the prosecution witnesses consistently suggestions have been made on behalf of the defence that on 28.03.1979 in the late hours of night marpeet took place between Sadhu and his family members, on the one hand and Chhotey Lal Murao on the other hand, wherein due to previous enmity Ram Chhabiley had struck fatal blows to Chhotey Lal Murao. After the incident during night matter was amicably settled and it was mandated that police should not be approached. On 3rd day after the incident when the condition of Chhotey Lal Murao was deteriorating, Ram Chhabiley manipulated the lodging of the present FIR by the first informant. In order to substantiate this defence on behalf of the defence reference has been made to the evidence of Dr. Naresh Kumar, II Medical Officer, Primary Health Centre, Shivpura. According to this witness on 30.03.1979 he had medically examined Puttu Lal, Sadhu Ram, Ram Chhabiley, Smt. Badka and injured Chhotey Lal Murao. These injured were taken to Primary Health Centre by constable Raj Karan Singh along with Chitthi Mazrubi, on that day, Chhotey Lal Murao was examined at 5.00 PM and on his person the following injuries were found:

"1. There is bandage on the head 7 stitches wound No. II i.e. stitches present on the left side at head 7 cm above to the upper border of left pinna. Size of wound is 4.5 cm x 5.3 mm. Wound No. 2 is lacerated in nature 2 cm posterior to the wound No. 1 size of wound is 4.5 cm x 1 cm x deep to bone. Wound No. 3 is lacerated in nature in 2 cm right to wound No. 2 and anterior also to wound No. 2 size of wound is 5 cm x 1 cm x deep to bone.

A lacerated wound is present on the right forearm lateral aspect 19 cm above to the tip of right thumb. Size of wound is 1 cm x 1 cm x 5 mm.

A lacerated wound is present on the lateral aspect at the left side of chest 24 cm above to the left side of iliac crest. Size of wound is 2.5 cm x 5 cm x 5 cm.

A wound i.e. stitches is present on the right side of back 7.5 cm lateral to the spine at L2, L3. Size of wound is 4 cm x 2 mm x 5 stitches. (There is bandage present also).

There is swelling present on the Rt thigh. Swelling start from upper border of patella up to the Rt iliac crest. Swelling at the level of mid thigh is 45 cm. There is surgical emptyzima. Swelling is full of crepitations.

A swelling is present on the Rt ankle joint all movement of ankle joint are normal."

The injury of Smt. Badka was also medically examined on the same day at 6.00 PM and on her person the following injury was found.

"1. A bruise is present on the Rt buttock just below to iliac. Size of bruise is 16 cm x 9 cm."

The injuries of Sadhu Ram were also medically examined on the same day at 7.30 PM and on his person the following injuries were found.

"1. Swelling is present on the Rt hand lateral side and posterior and (sic) aspect of the hand. Swelling extends upto 3rd (sic) movements of fingers and wrist are normal.

A swelling is present on the Lt upper arm. The swelling is start from left elbow joint upto shoulder joint. Movements of elbow and shoulder joint are normal.

A swelling is present on the left elbow 16 cm above to the upper arm of left fibula bone.

Complaining of pain in Rt. iliac region. There is no abnormalities present in Rt iliac region."

The injury of Ram Chhabiley was also medically examined on the same day at 8.00 PM and on his person the following injury was found.

"1. A lacerated wound is present on the left side of head occipital region 7.5 cm above to the left eye brow. Size of the injury is 5 cm x 2.5 cm x.5 cm."

These injury reports have been proved by the witness and exhibited as Ex. Ka-2 to Ka-6. During his examination on oath this witness has opined that injuries were two days old. He also accepted that these injuries might have been caused on 29.03.1979. The learned trial Judge did not accept the duration of the injuries recorded in the injury reports and deposed by this witness. He has assigned the reason that the accused were influential. They had approached this witness and he was won over. We find that this reason is not substantiated from the record, when the witness examined the injured persons on 30.03.1979 in the evening it was specifically mentioned by him that injuries were two days old. At that moment the accused had no occasion to approach the doctor because medical examinations were taken place not at Primary Health centre Mathura but at Primary Health Centre, Shivpura where the injured persons were sent on account of absence of Medical Officer at Primary Health Centre, Mathura.

From the perusal of the injury reports exhibit Ka-2 to Ka-6 and statements of Dr. Naresh Kumar P.W. 2, we are of the opinion that preponderance of probability is that when the injured persons were medically examined by Dr. Naresh Kumar in the evening on 30.03.1979 injuries were two days old, which supports the defence case that the occurrence had taken place on 28.03.1979 in the late hours of night and one day thereafter all the concerned parties were kept mum due to amicable settlement in the Panchayat. After physical condition of deceased Chhotey Lal Murao deteriorated only, then on the initiative of police of police station concerned with the help of Ram Chhabiley, Sadhu Ram lodged the first information report. With these conclusions the veracity of the prosecution story is demolished and it becomes highly doubtful whether any incident as stated in the FIR had taken place or not.

We also find ourselves unable to agree with the findings of the learned trial Judge that in the present case sufficient motive for occurrence stood proved. The reason for murdering Chhotey Lal Murao is said to be a litigation wherein son of Chhotey Lal Murao was prosecuted by Surendra Singh son of Chandra Pal Singh. However, we find that in the defence certified copy of the judgment dated 17.06.1979 has been filed which indicates that in that case son of Chhotey Lal Murao was acquitted and thereafter for more than one and half year there was no animosity between the appellants family and the family of the deceased Chhotey Lal Murao.

The learned trial Judge has not appreciated the evidence of defence witnesses in correct legal perspective, however, that is in significant because he has not even evaluated the eye witness account properly.

Sadhu Ram P.W.3 claims himself to be eye witness and also an injured but as per medical evidence on 29.03.1979 he could not have sustained those injuries, therefore, he cannot be treated as an injured witness. During cross-examination he even could not read the written report Exhibit Ka-8. His narration of the events does not appear to be truthful account. If he was chased by seven armed persons then how on the place of occurrence his mother, brother came there, though his house is situated at the distance of approximately 200 steps whereas house of the appellants is also adjacent to the place of occurrence.

Ram Pheran P.W.4 is the son of the deceased Chhotey Lal Murao. He claims that on the relevant time he was in the house and on hearing the hue and cry he along with his father reached at the scene of occurrence. He further says that when he reached there all the injured persons were lying on the ground after they were beaten, thereafter, his father was assaulted. It appears improbable that in the presence of the witnesses named by him, his father could have been beaten so severely and he remained unhurt. At that time it was a peak season for harvesting. He is a labour. His presence in the field of wheat crop is more probable than in his house. We do not think that he had heard any hue and cry and saw any incident. Prem P.W.5 himself says that he had seen the accused beating Chhotey Lal Murao with Lathis. He does not mention any Farsa or Ballam. At the relevant time he was harvesting his crop of Masoor. We do not think that he could have reached the scene of occurrence immediately.

Ram Chhabiley P.W.6 is also an injured witness, who according to Dr. Naresh Kumar P.W.2 sustained injuries on 28.03.1979. For the reasons indicated herein-above he is not trustworthy witness as on that day his wheat crop was being harvested. He himself admits that when the occurrence took place some of the wheat was transported and some was lying in the field. In such a situation, it appears improbable that he could have reached at the scene of occurrence situated almost within the abadi of the village from his field of wheat.

Thus eye witness account given by all the four witnesses does not inspire our confidence. The presence of the witnesses at the time of occurrence is improbable. We do not find them worthy of reliance. The learned trial Judge has not given any single reason to place reliance on their testimonies.

For the reasons mentioned above, the findings recorded by the learned trial Judge are not legally sustainable to some extent they are perverse, tainted with conjectures and surmises. Therefore, the impugned judgment and order deserve to be set aside. The prosecution has failed to prove the charges against the present surviving appellants beyond reasonable doubt. The appellants are liable to be acquitted.

Accordingly, the criminal appeal is allowed and the judgment and order dated 19.09.1981 passed by learned IIIrd Additional Sessions Judge, Gonda in S.T. No. 164 of 1979 [State v. Ram Raj and six others] arising out of Case Crime No. 18 of 1979, under Sections 147, 148, 323, 302/149 I.P.C., P.S. Lalia, District Gonda are hereby set a side. The appellants are acquitted from the charges levelled against them. The appellants are on bail. Their bail bonds are cancelled and the sureties are discharged from their liabilities. The appellants need not surrender, in case, they are not wanted in any other case.

Office is directed to communicate this order to the court concerned and to send back the record to the court below.