Ram Samujh and Others (in Jail) vs State of U.P.

Vishnu Sahai, J.—Through this appeal, Ram Samujh, Sukh Ram, Ram Tirath and Shanker challenge the judgment and order dated 24.9.1983, passed by Ist Additional Sessions Judge, Barabanki, in Sessions Trial No. 438 of 1981, whereby they have been convicted and sentenced to undergo imprisonment for life for the offence punishable u/s 302/34, I.P.C.

Shortly stated, the prosecution case runs as under:

The informant Kali Bux Singh, P.W. 2 is the real brother of the deceased Chandra Shekhar Singh. At the time of the incident, the informant, the deceased, Bhagwati P.W. 1, Jaswant Singh P.W. 3 and the Appellants Ram Samujh, Sukh Ram, Ram Tirath and Shankar were living in village Bahreladih, within the limits of police station Ram Sanehi Ghat, district Barabanki.

2.1. Appellants Ram Samujh and Sukh Ram are real brothers, being the sons of Deodat. Appellant Ram Tirath is the son of Sukh Ram and Appellant Shanker is the son of Ram Samujh.

2.2. There was enmity between the Appellants on one hand and the deceased Chandra Shekhar Singh on the other. Before the incident, a case u/s 307, I.P.C. was registered against Appellant Ram Samujh, which was pending at the time of incident. At that time, proceedings u/s 107, Cr. P.C. and a civil litigation were also pending between the parties. Hence, Ram Samujh and his family members bore animus against the deceased Chandra Shekhar Singh.

2.3. On 9.6.1981, at about 7.00 p.m. the deceased Chandra Shekhar Singh, along with Bhagwati P.W. 1 was going to answer the call of nature. The informant was also following them, as he had to make some purchases from Sanehi Teli''s shop. As soon as, Chandra Shekhar Singh reached the door of Appellant Ram Samujh, he came out with a lathi from beneath the chappar and inflicted a lathi blow on Chandra Shekhar Singh and said that he should be killed. Thereupon, Appellants Sukh Ram, Ram Tirath and Shankar came. Appellant Sukh Ram hurled hand-grenade on Chandra Shekhar Singh, who fell down. Thereafter, Shankar with a gandasa and Ram Tirath with a banka assaulted him. As a consequence of the assault Chandra Shekhar Singh died on spot. When Bhagwati tried to save Chandra Shekhar Singh, he was assaulted by Appellant Ram Samujh with a lathi and by Shankar with a gandasa.

2.4. Apart from the informant and Bhagwati, this incident was also seen by Jaswant Singh P.W. 3 and some others.

2.5. After murdering the deceased, the Appellants ran away.

2.6. Thereafter, the informant got the F.I.R. scribed at his door by his nephew Virendra, who after scribing it read it out to him and he thereafter, affixed his signatures. Thereafter, along with the said F.I.R., the informant proceeded to police station Ram Sanehi Ghat, district Barabanki, where he lodged it.

The evidence of head constable Awadesh Kumar Ojha P.W. 7 shows that on 9.6.1981, at 10.15 p.m., the informant Kali Bux Singh came to police station Ram Sanehi Ghat (where he was posted) and filed his written F.I.R. on the basis of which he registered a case u/s 302/323, I.P.C. vide Ext. Ka-15. His evidence shows that at the time of lodging the F.I.R., S.O. Prahlad Yadav was present at the said police station.

The evidence of S.O. Prahlad Yadav P.W. 5 shows: On 9.6.1981, the F.I.R. was lodged in his presence by the informant Kali Bux Singh. He immediately took over the investigation and recorded the statements of the informant and the injured Bhagwati at the police station itself and thereafter left for the place of the incident. On 10.6.1981, he performed the inquest on the corpse of the deceased and thereafter sent it for autopsy. Thereafter, he recorded the statement of Jaswant Singh and inspected the place of the incident, where he found a blood-stained aungochha of the deceased and remnants of hand-grenade. He seized from the place of the incident plain and blood-stained earth in separate containers. The said recoveries were made under a recovery-memo. He did other investigation also, but since, in our view, reference to it is not necessary for the disposal of this appeal, we are not adverting to it.

On 19.6.1981, he submitted the charge-sheet against the Appellants.

Going backward, the injuries of Bhagwati P.W. 1 were medically examined on 10.6.1981 at 9.00 a.m. by Dr. R. P. B. Singh P.W. 4, who found on his person two abrasions, three contusions and one incised wound.

In the opinion of Dr. Singh, excepting the incised wound, which was caused by sharp-edged weapon, remaining injuries were attributable to a blunt weapon. In his opinion, all the injuries of the victim were simple in nature.

Once again going backwards, the autopsy on the corpse of the deceased Chandra Shekhar Singh was performed on 11.6.1981 at 3.00 p.m. by Dr. Prem Prakash, P.W. 6, who found on his person the following ante-mortem injuries:

(i) Incised wound 6 cm. - 1 cm. - muscle deep on the right side of chin, wound is tailing off downwards and medially ;

(ii) Lacerated wound 3 cm. - 1 cm. - bone deep on the left side of cheek just outer to the left nostril ;

(iii) Incised wound 25 cm. - 6 cm. - bone deep on the front of neck. Neck is attached with the rest of body by a flap of skin posteriorily.

(iv) Lacerated wound 3 cm. - 1.5 cm. - muscle deep on the front of right side of chest, 10 cm. below the clavicle and 6 cm. right of the midline ;

(v) Incised wound 8 cm. - 1.5 cm. - 1 cm. lower on the left shoulder joint. Wound is tailing off laterally ;

(vi) Abraded contusion 10 cm. - 5.5 cm. on the back of right thigh, 16 cm. above the knee joint ;

(vii) Incised wound 6 cm. - 1.5 cm. - muscle deep on the front of right ankle joint, wound is tailing off downwards and laterally ;

(viii) Incised wound 6 cm. - 2 cm. - bone deep on the back of neck just below the occipital bone of skull. Wound is tailing off downwards and towards the left side (Santen) and penis is swollen."

On internal examination, Dr. Prem Prakash found carotid arteries and juglar veins on both the sides of neck cut.

The cause of death spelt out in the post-mortem report was shock and haemorrhage on account of the ante-mortem injuries.

In his statement in the trial court, Dr. Prem Prakash reiterated the said cause of death and stated that the injuries of the deceased were sufficient in the ordinary course of nature to cause death. He further stated that injury Nos. 2, 4 and 6 were attributable to a blunt weapon like lathi and remaining injuries to a sharp-edged weapon like gandasa.

The case was committed to the Court of Sessions in the usual manner, where Appellants were charged on a dual count, namely, under Sections 302/34, I.P.C. and 307/34, I.P.C., the former related to the murder of the deceased and the latter to attempting to commit the murder of P.W. 1 Bhagwati. The Appellants pleaded not guilty to the charges and claimed to be tried.

During trial, in all, the prosecution examined seven witnesses. Three of them, namely, Bhagwati P.W. 1, Kali Bux Singh P.W. 2 and Jaswant Singh P.W. 3 were examined as eye-witnesses. It is pertinent to mention that Bhagwati P.W. 1 did not support the prosecution case and was declared hostile, but the other two eye-witnesses, namely Kali Bux Singh and Jaswant Singh stood firm as a rock of Gibraltar and gave credible evidence.

The learned trial Judge believed the evidence of Kali Bux Singh and Jaswant Singh and convicted and sentenced the Appellants in the manner stated in paragraph 1.

Hence, this appeal.

We have heard learned Counsel for the parties and perused the depositions of the prosecution witnesses ; the material exhibits tendered and proved by the prosecution ; the statements of the Appellants recorded u/s 313, Cr. P.C. ; and the impugned judgment. After the utmost circumspection, we are of the judgment that this appeal deserves to be partly allowed. In our view, Appellant Sukh Ram deserves the benefit of doubt.

It would become manifest from the above that three eye-witnesses, namely, Bhagwati P.W. 1, Kali Bux Singh P.W. 2 and Jaswant Singh P.W. 3, were examined by the prosecution. We have earlier seen that Bhagwati, although an injured witness, turned hostile and did not support the prosecution case. In our judgment, it would not be safe to accept the testimony of Bhagwati P.W. 1 because although he stated that on the date and time of the incident, he was going, along with the deceased Chandra Shekhar Singh, to answer the call of nature, but he deposed that when they reached a little ahead of the door of Ram Samujh, some unknown persons, whom he could not recognise, assaulted him and the deceased. It is pertinent to mention that he was cross-examined by the prosecution. To our regret, instead of confronting him with that portion of his statement u/s 161, Cr. P.C. wherein he had given ocular account he was asked by the Public Prosecutor whether Ram Samujh with a lathi, Sukh Ram with a hand-grenade, Ram Tirath with a banka and Shankar with a gandasa had assaulted the deceased Chandra Shekhar Singh and when he rushed to his rescue he was assaulted by lathi and gandasa. He denied the said suggestion. In our view, his evidence is altogether useless.

We now propose taking up the evidence of other two eye-witnesses, namely, Kali Bux Singh P.W. 2 and Jaswant Singh P.W. 3.

We would first take up the evidence of Kali Bux Singh. Since in paragraph 2, we have set out the prosecution story on the basis of recitals contained in his examination-in-chief, we do not want to burden our judgment by reiterating the details. In short, his evidence shows:

There was enmity between Appellant Ram Samujh on one hand and the deceased Chandra Shekhar on the other (in paragraph 2 we have detailed that enmity). On 9.6.1981, at about 7.00 p.m., the deceased Chandra Shekhar Singh, along with Bhagwati P.W. 1 was going to answer the call of nature. He was at a little distance behind them. When Chandra Shekhar Singh and Bhagwati had reached near the door of Appellant Ram Samujh, the latter emerged from beneath his chappar with a lathi and gave a lathi blow on the person of Chandra Shekhar Singh. He was saying Chandra Shekhar be killed. Thereafter Sukh Ram, Ram Tirath and Shankar came. Sukh Ram hurled a hand-grenade on the person of Chandra Shekhar, who fell down and thereafter Ram Tirath with a banka and Shankar with a gandasa belaboured him. When Bhagwati rushed to his rescue he was also assaulted. Thereafter the Appellants ran away and he got the F.I.R. of the incident scribed by his nephew Virendra and went to Police Station Ram Sanehi Ghat and lodged it.

We have gone through the evidence of Kali Bux Singh and, in our judgment, it inspires confidence against Appellants Ram Samujh, Ram Tirath and Shankar. We have seen that not only has Kali Bux Singh explained his presence on the place of the incident, (see para 2) but the manner of assault as furnished by him is corroborated by medical evidence vis-a-vis the said Appellant. He stated that Ram Samujh assaulted the deceased with lathi and the autopsy report shows that the deceased sustained two lacerated wounds and one abraded contusion, which in the opinion of autopsy surgeon were attributable to a lathi. He stated that Ram Tirath with a banka and Shankar with a gandasa assaulted the deceased and we have seen that the autopsy surgeon found five incised wounds on the person of the deceased, which as per his evidence could be caused by banka and gandasa.

11.1. However, we make no bones in observing that his evidence that Appellant Sukh Ram hurled hand-grenades on the person of the deceased, who fell down does not inspire any confidence. It is true that in his statement in the trial court he did not state that hand-grenade struck the deceased but, in our view, he was perhaps advised to remain silent on this aspect because as we have seen earlier the autopsy surgeon did not find any hand-grenade injury on the person of the deceased. It is pertinent to mention that in his F.I.R. he categorically stated that hand-grenades hurled by Sukh Ram struck the deceased. It may also be mentioned that since he did not state in his substantive statement that hand-grenade struck the deceased, he was confronted with that portion of his statement u/s 161, Cr. P.C., wherein he admitted that hand-grenades hurled by Sukh Ram did strike the deceased. He denied having made such a statement and stated that the Investigating Officer has wrongly mentioned the said fact in it. We are not prepared to believe him because, in our view, unless he had so stated the Investigating Officer would not have falsely mentioned it in his said statement.

In such a situation, in our view, it would not be safe to accept his evidence vis-a-vis Appellant Sukh Ram.

11.2. It is pertinent to mention that Kali Bux Singh was extensively cross-examined, but nothing could be elicited therefrom which would create a doubt in his evidence pertaining to the involvement of the Appellants Ram Samujh, Ram Tirath and Shankar in the incident. Since the incident took place on 9th June, 1981 at 7.00 p.m., it is common knowledge that there must have been plenty of light and consequently, he must have had no difficulty in recognising Ram Samujh, Ram Tirath and Shankar.

11.3. Assurance to the ocular account furnished by him vis-a-vis Ram Samujh, Ram Tirath and Shankar is forthcoming by her prompt F.I.R. of the incident, which was lodged by him. We have seen that the incident took place on 9.6.1981 at 7.00 p.m. and he lodged the F.I.R., the same night, at 10.15 p.m. at police station Ram Sanehi Ghat, which was situated at a distance of three and a half miles from the place of the incident. Since his evidence shows that after the incident he got the F.I.R. scribed and thereafter proceeded to police station to lodge the F.I.R., the same, in our view, cannot be faulted as being belated. It is significant to point out that the same overt acts, which have been attributed by him to Ram Samujh, Ram Tirath and Shankar in his statement in the trial court, have been attributed by him to the said persons in his F.I.R. The essential features of the prosecution case, including the motive, have also been unfurled in the F.I.R.

For the said reasons, in our view, the evidence of Kali Bux Singh inspires confidence vis-a-vis Appellants Ram Samujh, Ram Tirath and Shankar, but it would not be safe to accept it vis-a-vis Appellant Sukh Ram.

We now come to the statement of Jaswant Singh P.W. 3. His evidence shows:

On the date and time of the incident, while he was also going to answer the call of nature and had reached the galiyara near the house of Ram Samujh he heard the cries of Chandra Shekhar Singh and Bhagwati. He ran and saw Appellant Ram Samujh saying Chandra Shekhar be killed and thereafter assaulting him with lathi. He also saw Appellant Sukh Ram hurling hand-grenade on the deceased Chandra Shekhar Singh, who fell down, and thereafter Appellant Shankar with a gandasa and Appellant Ram Tirath with a banka assaulting Chandra Shekhar. He also saw that when Bhagwati tried to save Chandra Shekhar Singh, Ram Samujh with a lathi and Shankar with a gandasa assaulted him.

We have gone through the evidence of Jaswant Singh and, in our view, it inspires confidence against Appellants Ram Samujh, Ram Tirath and Shankar, but it would not be safe to accept it vis-a-vis Appellant Sukh Ram. In our judgment, the manner of assault attributed by him to Ram Samujh, Ram Tirath and Shankar (it is the same which has been attributed by Kali Bux Singh P.W. 2) is corroborated by the nature of injuries found on the person of the deceased by the autopsy surgeon. Since we have dealt with this aspect while dealing with the evidence of Kali Bux Singh P.W. 2 we do not want to burden our judgment by reiterating it. It is true that he did not state in so many words that the hand-grenades hurled by Appellant Sukh Ram struck the deceased, but as mentioned by us earlier the reason was that the autopsy surgeon did not find any blast injury on the corpse of the deceased. In this connection, he was confronted with the statement u/s 161, Cr. P.C., wherein he admitted that the hand-grenade hurled by Sukh Ram struck the deceased. He denied having made it. We are not prepared to accept his denial because we see no reason why the Investigating Officer would have falsely mentioned it in his statement u/s 161, Cr. P.C.

In such a situation, it would not be safe to accept his evidence vis-a-vis Appellant Sukh Ram.

14.1. It is pertinent to mention that although he was extensively cross-examined, but nothing could be elicited therefrom which could discredit his evidence vis-a-vis the participation of Appellants Ram Samujh, Ram Tirath and Shankar in the incident.

14.2. It is pertinent to mention that he is an independent witness and had no rancour or ill-will against the said Appellants.

For the aforesaid reasons, in our view, the evidence of Jaswant Singh inspires implicit confidence vis-a-vis Appellants Ram Samujh, Ram Tirth and Shankar, but it would not be safe to accept it vis-a-vis Appellant Sukh Ram.

We would be failing in our fairness if before proceeding to the operative part of the judgment we do not deal with the submission canvassed by learned A.P.P. with regard to the participation of Appellant Sukh Ram. The learned A.P.P. urged that the evidence of Kali Bux Singh P.W. 2 and Jaswant Singh P.W. 3 does not show that the hand-grenades hurled by Sukh Ram struck the deceased. He contended that the possibility of their not striking the deceased cannot be ruled out. He further urged that since the Investigating Officer found remnants of hand-grenades on the place of the incident, when he prepared the site plan on the following day, the participation of this Appellant also stands established.

16.1. We regret we cannot accept this submission. We have seen that both in the F.I.R. and in his statement u/s 161, Cr. P.C., Kali Bux Singh has categorically stated that the hand-grenades hurled by Sukh Ram struck the deceased.

16.2. Coming to the evidence of Jaswant Singh P.W. 3, we find, it is true that he did not state that the hand-grenade hurled by Sukh Ram struck the deceased but again we find that in his statement u/s 161, Cr. P.C., he categorically stated that the hand-grenade hurled by the said Appellant struck the deceased.

16.3. On the face of such evidence, in our view, when there are no hand-grenade injuries on the corpse of the deceased, it would not be safe to believe the participation of Appellant Sukh Ram in the incident merely because the Investigating Officer has stated that he found remnants of hand grenade, when he inspected the place of incident. In his statement in the trial court, he has not detailed what those remnants were. We are not prepared to believe such an omnibus statement especially in a case like the present where there is a categorical averment in the F.I.R. and in statements of the eye-witnesses recorded u/s 161, Cr. P.C. that the hand-grenade struck the deceased. Therefore, we propose giving benefit of doubt to Appellant Sukh Ram.

In the result, this appeal is party allowed. We confirm the conviction of Appellants Ram Samujh, Ram Tirath and Shankar for the offence punishable u/s 302/34, I.P.C., the sentence of imprisonment for life awarded to them thereunder and dismiss their appeal. They are on bail and shall be taken into custody forthwith to serve out their sentence.

We, however, acquit Appellant Sukh Ram for the offence punishable u/s 302/34, I.P.C., set aside his conviction for the said offence, and the sentence of imprisonment for life awarded to him thereunder. He is on bail. He need not surrender. His bail bonds shall stand cancelled and sureties discharged.