Ram Sewak vs State

Virendra Saran, J.—Ram Sewak has preferred this appeal against the judgment and order dated 2051980 of Sri Dinesh Chandra, IIIrd Additional Sessions Judge, Lucknow convicting the appellant under Section 302, IPC and sentencing him to imprisonment for life.

The machinery of law was set into motion by ICallu Chaukidar of village Nabipanah, P.S. Mall district Lucknow who lodged an FIR on 2221979 at 10.30 a.m. at P.S. Mall, district Lucknow informing that a dead body of an unidentified man wearing a sweater and Pyjama was lying in the Arhar field of Bharoscy in village Bhagwantkhera. A case was registered and A.S.I. Malhura Singh started investigation. He went to the post; prepared Panchayatnama Ext. Ka. 6, siteplan Ext. Ka11 and sent the body for postmortem examination in a scaled cover. Thereafter investigation was taken up by Sri Babu Ram on 2421979. Eventually it was discovered that the deadbody was not a man but it was of one Indra Devi, mother of P.W. 3 Lal Babadur Singh, resident of Maurawan S. Maurawan, district Unnao. The Investigating Officer got the deadbody identified by Lal Bahadur Singh and Poornima Devi, son and daughter respectively of the deceased. Identification was done after the postmortem examination which was conducted on 2621979.

The postmortem examination of the deceased was held by Dr. D.K. Saxena, P.W. 10 which reveals 25 incised wounds on the person of the deceased. The doctor opined that the death was due to shock and hemorrhage on account of multiple injuries. After completing investigation, the Investigating Officer submitted a chargesheet against the appellant who was committed to the Court of Session. At the trial, the appellant pleaded not guilty.

In support of its case, the prosecution examined 11 witnesses in all. They are RW. 1 Kalloo, P.W. 2 Ram Prasad, P.W. 3 Lal Bahadur Singh, P.W. 4 Gaya Baksh Singh, P.W. 5 Jagannath Prasad, P.W. 6 Kalpraj Singh. Hcadmoharrir, P.W. 7 S.I. Mathura Singh, P.W. 8 G.S. Bhatnagar, Assistant Chemical Examiner. P.W. 9 S.I. Ram Babu, P.W. 10 Dr. O.K. Saxena and P.W, 11 Ram Lakhan Yadav. The appellant also examined two witnesses, i.e. D.W 1 D.C. Tiwari and D.W. 2 Chhofta. After scrutinizing the evidence, the learned Sessions Judge convicted and sentenced .he appellant as mentioned above. The appellant has not come up in appeal in this Court.

We have heard Kr. Shanti Prakash, learned counsel for the appellant and Sri Anundi Bancrji, learned State counsel and have perused the evidence.

In this case there is no eyewitness and the case rests on circumstantial evidence. One of the important links of circumstantial evidence is the evidence of last seen. On this point, the prosecution has examined Lal Bahadur Singh alias Munna, son of the deceased, who has deposed that about three days prior to the incident his mother had gone in the company of the appellant at about 8.45 p.m. without anything. He has further stated that when even after three or four days his mother did not return, he became worried. He added that the appellant came and took away his belongings from the house of the deceased and when the witness asked the appellant regarding the whereabouts of his mother, the appellant simply denied any knowledge "\\d left without telling anything. We have scrutinised the evidence of this witness and we are of the opinion that the evidence of this witness is unworthy of credence. The evidence reveals that the deceased had lost her husband about four years prior to the incident and since then the deceased and the appellant came very close to each other and the deceased and the appellant started frequenting each other. On the other hand, relations between the witness and his mother Indra Devi (deceased) were far from being cordial. The defence has filed copy of the F.I.R. Ext. Kha2 lodged with the police by the deceased on 491978, i.e. only five months prior to the incident against witness Lal Bahadur Singh. The F.I.R. reveals that the deceased had complained the police that her son was a wayward type of person and was always demanding more and more money from the deceased. She further complained that the witness used to loiter here and there and not only abused the deceased but was also extending threats to kill her. The report has been proved by D.W. 1 Dinesh Chandra. Learned counsel for the appellant has urged that the circumstances of the case go to show that it was P.W 3 Lal Bahadur Singh who was instrumental in the murder of the deceased and by getting the deceased murdered, Lal Bahadur Singh killed two birds with one stone. On the one hand he got rid of the deceased and on the other hand he got his mother''s paramour, i.e. the appellant implicated on a false charge of murder as the witness was having lot of grievance with the appellant on account of deceased''s close relationship with the appellant. The submission of learned counsel for the appellant has substance. Evidence of Lal Bahadur Singh leaves one guessing as to why Lal Bahadur Singh remained tight lipped regarding disappearance of his mother (deceased Indra Devi) for several days. Lal Bahadur Singh has staled that the appellant was carrying on a cycle repair shop in Mohalla Thakurganj, Lucknow and he sometimes used to dine with the deceased at her house. Later on, he started living in the house of the deceased with her. The witness has further that the appellant had purchased a of land in Newajganj, but the purchase price was paid by the deceased. In these circumstances it was quite natural for witness Lal Bahadur Singh to turn hostile towards the appellant who was an outsider and was not only carrying on with his mother but had also induced her to pay the price of the land purchased by the appellant. In his crossexamination the witness admitted that he had repeatedly asked his mother why she was allowing the appellant to frequent her, but the deceased gave no reply. The witness further stated that he disliked the meetings of the appellant with his mother Indra Devi. It may be observed here that if the prosecution case that the deceased was having illicit affair with the deceased is correct, it must be bringing ridicule to P.W. 3 Lal Bahadur Singh, son of the deceased and such relationships generally end in enmities. The son would be hating the conduct of the appellant as well as his mother. In this very connection, we may again refer to Ext. Kha2 F.I.R. lodged by the deceased against P.W 3 Lal Bahadur Singh with the allegation that Lal Bahadur Singh was extending, threats to murder her. The fact that Lal Bahadur Singh maintained complete silence regarding disappearance of his mother and did not at all make any enquiry about her for several days also casts serious doubt on his conduct. Lal Bahadur Singh has admitted that he did not search for his missing mother and till he learnt the news of her murder, did not even tell anybody regarding the deceased going away and disappearing.

The evidence of last seen furnished by Lal Bahadur Singh has been assailed by the learned counsel for the appellant on yet another ground. It has been urged that in fact Lal Bahadur Singh was having strained relations with his mother and was not living with the deceased and he had no occasion to sec his mother going with the appellant. In crossexamination by the defence Lal Bahadur Singh admitted that he knew Ram Bahadur Nepaliof Muhasibganj and he further admitted that he was earlier living in the house of Ram Bahadur Nepali. He, however, denied the suggestion that even at the time of the incident he was living in Muhasibganj in the house of Ram Bahadur Nepali. He further denied that he had dispute with his mother. However, the material on the record shows that the witness had strained relations with his mother who had gone to the extent of lodging F.I.R, with the police against the witness of extending threats to murder her (Indra Devi). The defence has examined D.W. 2 Chhota whose house is only three or four houses apart from the house of the deceased. He stated that P.W. Lal Bahadur Singh was living separately from his mother and on his occasional visits to the house of his mother, he pickedup quarrels with the deceased and left the house again, P.W. 2 Chhota was crossexamined by the learned State counsel, but nothing material could be elicited which may discredit his testimony. We are inclined to accept D.W. Chhota''s evidence that Lal Bahadur Singh was not living with the deceased and had no occasion to see the deceased going in the company of the appellant as alleged by the prosecution. In these circumstances, we are not inclined to accept the testimony of Lal Bahadur Singh regarding his seeing the deceased going with the appellant.

We may now advert to the evidence of P.W. 4 Gaya Baksh Singh who is the star witness of the prosecution in the sense that the prosecution has tried to project him as witness of more than one fact. The witness is resident of village Thawar. The appellant is also permanent resident of village Thawar, but was living at Lucknow. The witness has tried to impress that he knew that the deceased was carrying on illicit relations with the appellant. Hestated that he had heard in the village that a woman belonging to hill areas (Paharan) used to come to the house of the appellant and added that once he was travelling in a bus from Lucknow to Thawar. The said woman was also in the bus, but she got down near village Nabipanah and people said that she was the woman who used to go to the appellant''s house. The evidence of the witness does not inspire confidence. The witness stated that Ram Sewak was not accompanying the woman and he tried to explain that since the lady had got down from the bus at about 10.30 p.m. he inferred that she was the same woman who used to go to the house of the appellant. The evidence of the witness does not lead us anywhere because he has admitted that after he had seen the woman in the bus, the incident took place some three or four months afterwards. It is also important to note that according to the witness he did not know the woman travelling in the bus from before and further he did not sec the deadbody even after the murder. When the witness did not know the said woman from before the incident and further he never saw the deadbody after the incident, it is not understandable how he could say in so many words that the murdered woman was the one who had travelled with him in the bus. The witness admitted in crossexamination that he did not disclose to the investigation officer that he had seen the woman in the bus. He also admitted that he never disclosed to the investigating officer that the woman with the name of Indra Devi used to frequent the house of the appellant. To us, the evidence of the witness on the above point appears to be an afterthought and totally false and we are not inclined to believe the same. This witness is also the witness of extrajudicial confession of the appellant allegedly made to him. According 10 the witness after five days of the incident, the appellant him in a grove and told him that the appellant was being implicated in the murder case and this witness told the appellant that if the entire truth is disclosed to him, he would help him and thereupon the appellant told him that deceased Indra Devi was involved in illicit relationship with the driver of her school bus and that is why he murdered her. The appellant also told that he too had illicit connections with the deceased. Thereafter this witness called Baldeo Singh, former Pradhan of the village but Baldeo Singh told that no help could be given to the appellant in a murder case and hence they informed the police. The evidence furnished by the witness on the point of extrajudicial confession too appears to be concocted. The appellant had no closeness with the witness so as to confide with him or to ask help from him. No one would go to a person for help without having previous closeness and make extrajudicial confession. On the other hand, the evidence of Gaya Bux Singh goes to show that the witness had tried to conceal facts from which inference would have flowed that he was inimical and partisan witness. The witness admitted that appellant''s uncles Mishri Lal and Shanker were prosecuted in a case under Section 396, IPC When the witness was further crossexamined he stated that he did not know whether statement of the witness was recorded under Section 161, Cr PC as a prosecution witness in the case under Section 396, IPC by the investigating officer so showed lack of knowledge whether he had received summons from Court to appear as prosecution witness in the said case. He further stated that he did not know whether he had gone to Court in the said case for giving evidence. The evasive replies given by this witness go to show that he was trying to conceal the fact that he was a witness in the case under Section 396, IPC against the uncles of the appellant. We are not inclined to accept Gaya Baksh Singh, P. W. 4 that he was so forge ful as not to remember whether he had been inter1999(2) JIC32 rotated by the investigating officer in the case under Section 396, IPC and whether he went to Court in that connection. One may not remember the visits to places where one often goes, but the matter of going for giving evidence in a case of dacoity with murder is of particular significance and one would remember the same. The witness has not given straight forward answer which upon his credibility. The reason is not far to seek. The witness was trying to avoid inconvenient admissions from which it may be inferred that he was a partisan witness and had earlier stood as a prosecution witness against the uncles of the appellant. In such a situation implicit reliance cannot be placed on the evidence of the witness in respect of the extrajudicial confession. Except this witness none has stated that the deceased had developed illicit relations with the driver of the school bus. The investigating officer did not at all interrogate the said driver and did not make any investigation regarding the fact. The conduct of the investigating officer in not making any investigation regarding the illicit relationship of the deceased with the driver of the school bus shows that he was conscious of the fact that the allegation was imaginary and not true.

Lastly, the prosecution relies on the evidence of P.W. 4 Gaya Baksh Singh coupled with the evidence of P.W. 9 S.I. Ram Babu to the effect that when the appellant was arrested, he was wearing a shirt which had bloodstains on it. On the very face of it, the prosecution evidence is absurd on the point because the appellant would not be a fool to wear the bloodstained shirt after five days of the murder. He could have easily got rid of the incriminating shirt in those five days. Moreover, the shirt was sent for chemical examination and the chemical examination report shows that no blood was detected on the same. In view of the report of the chemical examiner, the evidence on the point does not at all help the prosecution and we need not detain ourselves for further discussion on the point. P.W. 4 Gaya Baksh Singh and P.W 9 S.I. Ram Babu further state that on the pointing out of the appellant, a blood stained knife and a pair of Chappals belonging to the deceased were recovered from the side of a Nallah known as Jhinkikanala or Matiyara Nala. On a careful scrutiny of the evidence it appears to us that the prosecution in its desperate effort to implicate the appellant has concocted the evidence of recovery. It does not stand to reason why he appellant would carry the Chappals of the deceased to Matiyara Nala which is a long distance from the place of incident and throw them there. Per se the Chappals did not at all connect the appellant with the crime and there was no sense in carrying them away. According to the prosecution case recovery of the knife was made from Bchiya bushes and the Chappals were Sound al a short distance from there. P.W Gaya Baksh Singh gave his own version and stated that one of the Chappals was found submerged in water while the other one was lying outside on the bank of the Nallah. On the other hand, evidence of P.W. 9 Ram Babu gives an impression that the knife as well as the Chappals were lying closeby. S.I. Ram Babu does not say that one of the Chappals was taken out from under the water. Recovery memo Ext. Ka4 emphatically mentions that the appellant had got the recover effected from the Behiya bushes. In this manner, there is major contradiction in the prosecution evidence regarding the place from where the Chappals and the knife were recovered. Since the evidence of discovery of Chappals and the knife is the same, the contradiction tells upon the discovery as a whole and creates doubt. If the appellant had taken away the Chappals and the knife with the intention of concealing them, the appellant could have easily thrown the Chappals and the knife in the water and would not let it lying in the bushes and it does not stand to reason why he would throw only one chappal in the water and leave the otheron the bank of the Naliahin the open which may attract the attention of anyone. It appears that in fact the Chappals and the knife were found lying somewhere near about the deadbody and were picked up and later utilised to create evidence under Section 27 of the Evidence Act against the appellant.

The evidence of the discovery of the knife and the Chappals may also be examined from another angle. The place from where the Chappals and the knife were recovered was accessible to all and sundry and anybody could have thrown the Chappals and the knife there and even an unconcerned person could have gathered knowledge of the fact and could have given information leading to the recovery, In the case of Trimbak v. The State of Madhya Pradesh, AIR 1954 SC 39, the Supreme Court observed:

"When the field from which the ornaments were recovered was an one and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts....."

Accordingly, in view of the above discussions were arc of the opinion that the prosecution has not been able to establish its case against the appellant, who is entitled to acquittal.

In the result, the appeal is allowed. Conviction and sentence of the appellant is set aside and he is acquitted. The appellant is on bail. He need not surrender. His bail bonds are discharged.