Ram Swarup vs State of U.P.

K.K. Misra, J.—This criminal appeal has been filed against the judgment and order, dated 29.11.1980 passed by Shri S. R. Sagar, the then I Vth Additional Sessions Judge, Pilibhit in Sessions Trial No. A-45 of 1980 whereby he convicted the Appellant Ram Swamp u/s 302, I.P.C. and sentenced him to undergo rigorous imprisonment for life.

The prosecution version as contained in the F.I.R. lodged by Gajraj Singh P.W. 1 (son of the deceased and an eye-witness) was that about 8 or 9 months before the date of incident, the murder of one Genda Lal of village Lalaurikhera had taken place. The accused of the present case, namely. Ram Swarup Gangwar of the same village had come to the complainant''s father Sher Singh after the said murder and started living with him. He remained at the house of the complainant for about 3 months and used to do household work. He used to say that due to "Partibandi" in the village, the villagers wanted to implicate him in the aforesaid murder. The police had also arrested the complainant''s father Sher Singh (deceased) and Ram Swarup in that connection and a cycle and wristwatch connected with that murder were recovered from them. On account of this, the father of complainant faced defamation. The complainant''s father kicked out Ram Swarup from his house, rebuking him that due to him, he had to go to the police station. Inspite of the fact that the deceased Sher Singh had kicked out the accused Ram Swarup, on one pretext or the other, he continued to come to the complaint''s house. About four months before the incident in question, the accused Ram Swarup was caught in village Lalpur while teasing women and since then the father of the complainant, Sher Singh deceased had totally prohibited accused Ram Swarup''s entry to his house. The deceased Sher Singh, father of the complainant had scolded and ''beaten his own wife Smt. Roopdai and asked her not to talk with Ram Swarup and not to allow him to come to the house. Due to this reason, the accused Ram Swarup entertained enmity against the complainant''s father, deceased Sher Singh,

On the night of the incident, the complainant, his brother, mother, sister and father were sleeping in the house under the ''Khaprail'' on the cots and a lantern was hanging glowing on the wall on a peg. Their servant, namely, Babu Ram who belonged to the complainant''s father''s village Bhoujipura, P. S. Sheeshgarh, district Bareilly was also sleeping in the house under the ''Chappar'' (thatch). On the cries of the complainant''s father in mid-night, the complainant, his mother, sister and servant awoke and saw that the accused Ram Swarup with long knife (Chhuri) and his another companion with a small knife were assaulting the complainant''s father Sher Singh and two other persons had caught hold the feet and hands of the complainant''s father-deceased Sher Singh. The complainant and other members of the family raised alarm and his mother and sister opened the door and began to cry on which Chhedalal son of Deep Chand Gangwar, Nand Ram son of Ram Charan Gangwar, Chhedi Lal son of Puran Lal Gangwar with ''lathis'' and flashing torches in their hands rushed to the spot. Ram Swarup accused said that ''Sala'' (deceased) posed himself as a man of great respect and after killing him, his dead body should be carried away. Instantly, with the help of his three associates, he dragged the complainant''s father from the cot and brought him in the cattle shed and then began to take him out of the cattle shed, but having been challenged by the villagers and pressure of the inmates of the house, the accused ran away, leaving the complainant''s father in injured position outside the cattle shed. The intestine of the deceased had come out of the stomach. They unsuccessfully tried to insert the intestine in the stomach. The father of the complainant was saying that Ram Swarup had killed him and that he should be taken to the hospital soon. By the time a Dunlop cart was arranged the complainant''s father died. Inside the cattle shed the dead body of the complaint''s father was kept on the cot and the complainant''s mother and village people were left there to look after the dead-body. Leaving them there, the complainant went to the police station to lodge the F.I.R. The same was lodged on 20.7.1979 at 3.30 a.m. The distance of the police station was 3 kms from the place of the incident. He alleged that he, inmates of the house and village people had recognized Ram Swarup in the light of lantern and torches and the remaining three persons were recognized by their faces and they could be identified on coming face to face. The investigation of the case was entrusted to P.W. 4 S.I. R. S. Bora who arrived at the spot along with S.I. A. K. Gaur and some constables ; prepared the inquest report of the dead body of the deceased with other necessary papers ; sealed his dead body and sent the same for post-mortem examination. He also prepared the site-plan of the place of occurrence Ex. Ka-7. The Investigating Officer then took blood stained ''Kathri'' in his possession. He also collected blood stained and simple earth from the place of occurrence, which he sealed and kept in two different tins. He also recovered the torches and lantern, which were found in working order. They were returned in the custody of their respective owners.

P.W. 10 Dr. C. V. Singh, Medical Officer, District Hospital, Pilibhit conducted the post-mortem examination of the dead body of the deceased Sher Singh on 20.7.1979 at 1.30 p.m. He found the deceased to be aged about 40 years and about half day had passed since he died. He found the following ante-mortem injuries on his person:

(1) Incised wound 10 cm. x 5 cm. x cavity deep placed transversely on upper abdomen. Tail of wound towards right side. Bowel coming out of wound.

(2) Incised wound 6 cm. x 3 cm. x cavity deep on abdomen in right iliac fossa. Bowel coming out of wound. Tail of wound downwards.

(3) Incised wound 2 cm. x 1 cm. x skin deep on left side chest. Tail downwards.

(4) Contusion 2 cm. x 1 cm. on back of left hip.

(5) Incised wound 2 cm. x I cm. on back of abdomen. Tail of wound downwards.

(6) Abrasion 1 cm. x 1/2 cm. on upper hip in centre.

(7) Abrasion 1 cm. x 1 cm. on back of right elbow.

(8) Abrasion 1 cm. x .5 cm. on palm of left hand.

(9) Abrasion I cm. x 1 cm. on back of left hand.

(10) Abrasion 1 cm. x I cm. on back of left thigh.

(11) Abrasion 2 cm. x I cm. on outer side of right hip joint.

The Doctor opined that the death occurred due to haemorrhage and shock.

The present accused-Appellant Ram Swarup and one Midhai Lal were arrested and put to trial. Midhai Lal was put up for identification. Ultimately he came to be acquitted whereas Ram Swarup, who was named in the F.I.R., has been convicted and sentenced.

The accused-Appellant in his statement recorded u/s 313, Cr. P.C., denied the prosecution story and farther stated that he had been falsely implicated in the case due to enmity and partibandi.

We have heard Sri S. B. Kochar, holding brief of Sri P. N. Lal, counsel for the Appellant and Sri K. P. Shukla, learned A.G.A. from the side of the State.

For appreciating the arguments of the learned Counsel, we should briefly mention about the evidence relied upon by the prosecution. In order to prove its case, the prosecution examined eleven witnesses in all. P.W. 1 Gajraj Singh, P.W. 2 Smt. Roopdai and P.W. 3 Chheda Lal are the eye-witnesses of the incident. P.W. 4 Investigating Officer Ranjeet Singh Bora, P.W. 5 constable Sompal Sharma, P.W. 6 H. C. Shishupal Singh, P.W. 7 Jitendra Pal Singh, P.W. 8 constable Khusi Ram, P.W. 9 constable Ram Dulare, P.W. 10 Dr. C. V. Singh and P.W. 11 Kunal Sharma are formal witnesses.

P.W. 1 Gajraj Singh is the son of the deceased and informant. He has deposed that at the time of occurrence a lit lantern was hanging on the wall of the ''Khaprail''. Hearing the cries of his father, he got up and saw that the accused Ram Swarup alongwith three others were causing injuries to him. He saw a long ''Chhuri'' (knife) in the hand of accused Ram Swarup. One other person also had a knife. They were assaulting the deceased Sher Singh with their respective weapons and two other persons who were unarmed had caught his father, Sher Singh deceased. One had caught hold the head of his father and another had caught his feet. He was categorical that the accused Ram Swarup with a big ''Chhuri'' and one another armed with a knife were causing injuries to the deceased Sher Singh. Thereafter, the accused dragged the deceased through northern door of his house. The complainant and other members of the family raised alarm. When the accused started dragging his father, the witnesses Chhedalal son of Deepchand Gangwar, Nand Ram son of Ram Charan Gangwar and Chhedi Lal P.W. 3 son of Puran Lal Gangwar, having ''lathis'' and torches in their hands came on the spot flashing their torches and they, too, witnessed the incident. On their challenge and pressure, the accused ran away leaving his father outside the cattle shed. He gave out the background of Ram Swarup''s earlier living at his house and then leaving it at the command of his father, as detailed in the F.I.R. This is the gist of his deposition.

P.W. 2 Roopdai is the wife of the deceased who was sleeping under the same ''Khaprail'' as the deceased and P.W. 1 Gajraj Singh. She corroborated the version of P.W. 1 Gajraj Singh in material particulars. P.W. 3 Chheda Lal is an independent witness resident of the same village, nearby the house of the deceased where the incident occurred. His house is shown in the site plan also prepared by the Investigating Officer. He had awaken on the alarm emanating from the house of the deceased and had at once rushed to the spot with lathi and flashing torch alongwith other witnesses Nand Ram and Chheda Lal, who also had lathis and torches with them. He has clearly spoken to have recognized the accused-Appellant Ram Swarup with a knife, dragging Sher Singh. There were his three other companions out of whom one also had a knife. He further stated that he very well knew him (Ram Swarup) from before as he had lived at the house of She Singh deceased. He also, testified that Sher Singh was crying that he had been assaulted by Ram Swarup. Later on, Ram Swarup had left Sher Singh''s house, but he did not know the reason. His statement is that even after leaving the house of Sher Singh, he (Ram Swarup) occasionally used to come to his house.

The first contention raised by the learned Counsel for the Appellant is that on the same set of evidence accused Midhai was acquitted giving benefit of doubt and the trial court committed gross error of law in convicting the present Appellant on the same set of evidence. We find that the case of Midhai Lal was based on identification by P.W. 1 Gajraj Singh and P.W. 2 Roopdai. They were rightly not believed against him for the reasons given by the trial court. The case of Ram Swarup was entirely different. He was named in the F.I.R. made by an eye-witness who was an inmate of the house and was sleeping under the same ''Khaprail'' as the deceased. The trial court committed no illegality.

Learned Counsel for the Appellant next submitted that no independent witness has been produced at the trial and the accused-Appellant Ram Swarup could not be convicted. P.W. 1 Gajraj Singh is the son of the deceased and P.W. 2 Smt. Roopdai is the widow of the deceased. They are the most natural witnesses (though may be termed as interested) and have been supported by an independent witness P.W. 3 Chheda Lal. He is not related to the deceased in any way and was his neighbour. The evidence of P.W. 3 Chheda Lal has great value. He had no enmity against the accused. It is well-established that the testimony of an interested witness cannot be rejected outright. The only rider is that the evidence of an interested witness should be scrutinized cautiously before relying upon the same. Disinterested witness is not necessarily true and interested evidence is not necessarily false. It is also well-established that a close relative of the victim will not spare the real offender and falsely implicate the innocent persons. After going through the evidence of the three eye-witnesses produced at the trial, we find that they have given a consistent version of the incident and there is no discrepancy in their statements. The learned Counsel could not show any ripple in their testimony. All of them well knew the accused Ram Swarup from before as he had earlier lived at the house of the deceased. There was light of lantern and torches to facilitate his recognition. P.W. 1 Gajraj and P.W. 2 Roopdai had seen the accused Ram Swarup giving knife blows to Sher Singh. P.W. 3 Chheda Lal saw knife in his hand and dragging Sher Singh with the help of his three companions, one of whom also had a knife. He truthfully spoke only what he saw with his own eyes. Their evidence appears to be trustworthy and reliable. The trial court committed no error in believing their evidence. Thus, this submission of the learned Counsel for the Appellant having no force is liable to be rejected.

Lastly, learned Counsel for the Appellant submitted that no blood was found from the place of occurrence. Although nothing specific has been stated by P.W. 1 Gajraj Singh and P.W. 2 Smt. Roopdai about the blood found at the place of occurrence, it has come in the evidence of P.W. 3 Chheda Lal that his hand became blood stained but he could not show the blood stained hand to the Daroga as he had washed the same before arrival of Daroga at the place of occurrence. The Investigating Officer of the case P.W. 4 R. S. Bora clearly deposed in his evidence that he took in possession the blood stained ''Kathari'', blood stained earth and plain earth from the place of occurrence. From the evidence of P.W. 3 Chheda Lal and P.W. 4 R. S. Bora, it is amply clear that the blood was oozing out of the body of the deceased and had fallen on the ''Kathari'' and earth.

In view of the above, we are of the opinion that the prosecution succeeded in proving its case against the present Appellant beyond any reasonable doubt.

Consequently, the appeal fails and is dismissed. The judgment and order dated 28.11.1980 passed by Sri S. R. Sagar, I Vth Additional Sessions Judge, Pilibhit are affirmed.

The Appellant Ram Swarup is on bail. The CJM Pilibhit shall cause him to be arrested and lodged in jail to serve out the sentence of life imprisonment passed against him.

The judgment be certified to the trial court for reporting compliance within two months.