Rama Shanker and Others vs State of U.P.

Vishnu Sahai, J.—Six persons, namely, Rama Shanker, Ram Ujagar, Tirath Nath, Arjun Prasad, Radhey Shyam and Ram Chandra were charged by the II Ird Additional Sessions Judge, Sultanpur in Sessions Trial No. 59/1982 for offences punishable under Sections 302/149, I.P.C. ; 325/149, I.P.C. and 323/149, I.P.C. In addition, Tirath Nath was charged for the offence punishable u/s 148, I.P.C. and the remaining five, namely, Rama Shankar, Ram Ujagar, Arjun Prasad, Radhey Shyam and Ram Chandra for that punishable u/s 147, I.P.C.

The learned Judge vide judgment and order dated 13.1.1984 convicted and sentenced them in the manner stated hereinafter:

(i) u/s 302/149, I.P.C. to undergo imprisonment for life and to pay a fine of Rs. 500 in default to undergo two months'' R.I. ;

(ii) u/s 325/149, I.P.C. to undergo one year''s R.I. ; and (iii) u/s 323/149, I.P.C. to undergo six months'' R.I.

In addition, Tirath Nath was convicted and sentenced to undergo one year''s R.I. for the offence punishable u/s 148, I.P.C. and the remaining five, namely, Rama Shankar, Ram Ujagar, Arjun Prasad, Radhey Shyam and Ram Chandra to one year''s R.I. u/s 147, I.P.C.

The sentences were directed to run concurrently.

Aggrieved by their convictions and sentences Rama Shankar, Ram Ujagar, Tirath Nath, Arjun Prasad, Radhey Shyam and Ram Chandra have preferred the instant appeal.

It is significant to mention that during the pendency of the appeal, Appellants Rama Shankar and Ram Chandra have been reported to be dead by the C.J.M., Sultanpur. Consequently, their appeal would stand abated in terms of Section 394, Cr. P.C.

Shortly stated, the prosecution case runs as under:

The informant Jagat Narain Pandey, P.W. 1 is son of the deceased Ram Asrey Pandey. At the time of the incident, he along with his mother Kamla Devi P.W. 2, was living in village Loniyapur within the limits of P.S. Amethi, district Sultanpur. At that time, his father Ram Asrey Pandey was posted as a police constable in district Pratapgarh and often used to come to village Loniyapur. Appellants Rama Shankar, Ram Ujagar, Tirath Nath, Arjun Prasad, and Radhey Shyam, at the time of the incident, were living in village Barhaipur, hamlet of Loniyapur within the limits of police station Amethi, district Sultanpur and the sixth Appellant, Ram Chandra was living in Amethi in district Sultanpur.

3.1. Out of the six Appellants, Appellant Ram Ujagar is the real brother of the deceased Ram Asrey. Appellant Rama Shankar is the son of Ram Ujagar and the remaining Appellants are associates of Ram Ujagar.

3.2. There was enmity between the informant and deceased Ram Asrey on one hand and Appellant Ram Ujagar on the other. About one and a half months prior to the incident, a fight had taken place between the informant and Ram Ujagar. In respect of it, Ram Ujagar had lodged an F.I.R. at police station Amethi against the informant, his father Ram Asrey and four of their relations.

3.3. On 16.7.1980, the deceased Ram Asrey had come from Pratapgarh to his house situated in village Loniyapur. On 17.7.1980 at about 1.30 p.m., he along with his wife, namely, Kamla Devi P.W. 2 had gone to see this paddy field situated to the south of the village. At that time, the informant was ploughing his field situated in the southern direction. One hour later (at about 2.30 p.m.), when Ram Asrey and Kamla Devi were returning from their paddy field and had reached near Birju Lonia''s field, Appellant Tirath Nath emerged and inflicted a farsa blow on the head of Kamla Devi which struck her. Thereafter, he inflicted two more blows with the blunt side of the farsa on her. Seeing this, Ram Asrey ran towards his house. Appellant Tirath Nath chased him and inflicted a farsa blow on his head. In the meantime, the other five Appellants, namely, Rama Shankar, Ram Ujagar, Arjun Prasad, Radhay Shyam and Ram Chandra, armed with lathis emerged and along with Tirath Nath started chasing Ram Asrey. They assaulted Ram Asrey. As a consequence of the assault, Ram Asrey fell down in the field of Ayodhya. The assault was launched by the Appellants on Ram Asrey on the instigation of Ram Ujagar that he be killed. Apart from Kamla Devi, this incident was seen by the informant himself, who while attempting to rescue his parents was also assaulted with lathi by Appellants. After assaulting Kamla Devi, Ram Asrey and the informant Jagat Narain Pandey, the Appellants ran away. Thereafter, the informant came and saw that his father Ram Asrey was dead. Leaving the corpse of his father Ram Asrey under the care of villagers he proceeded to police station Amethi, where he lodged his F.I.R.

The F.I.R. of the incident was lodged by Jagat Narain Pandey, P.W. 1 on 17.7.1980 at 4.20 p.m. at police station Amethi, district Sultanpur, the distance between the place of the incident and the aforesaid police station being two miles.

The injuries of Jagat Narain and Kamla Devi were medically examined on 17.7.1980 at 8.00 p.m. and 8.30 p.m. respectively by Dr. R. K. Khandari, C.W. 1 at Primary Health Center, Amethi.

On the person of Jagat Narain Pandey, Dr. Khandari found the following injuries:

(a) C/o pain on the middle of back. No marks (sic) of Ext. Inj. seen.

(b) Pain on the left side gluteal region. No marks of Ext. Inj. seen.

(c) Pain on the left side of ankle joint. No marks of Ext. Inj. seen.

On the person of Kamla Devi, Dr. R. K. Khandari found the following injuries:

(a) Lacerated wound 2-1/2 cm. x 1/2 cm. x bone deep on the left forehead 1 cm. above the left lat. side of eyebrow. Clotted blood +++.

(b) Contusion 1/2 cm. x 1/2 cm. on the lat, end of clavicle on (L) side. Reddish in colour.

(c) Traumatic swelling 10 cm. x 0 cm. on the back of left hand. Adv. X-ray.

(d) Contusion 10 cm. x 2-1/2 cm. on the (L) middle of thigh on antero lat. position.

(e) Traumatic swelling with contusion 6 cm. x 2-1/2 cm. on (L) leg with Tr. Swelling extending from knee joint to middle of leg. Reddish in colour. Adv. X-ray of part.

(f) Traumatic swelling 5 cm. x 3 cm. on the left side of chest 6 cm. above the last rib. Adv. X-ray of (L) side of chest.

In the opinion of Dr. Khandari, the injuries of Kamla Devi were attributable to a blunt weapon and excepting Injury Nos. 3, 5 and 6, in respect of which he advised the X-ray, the remaining were simple in nature.

In his deposition in the trial court Dr. Khandari stated that the injuries of both the injured could have been caused on 17.7.1980 at 2.30 p.m.

The evidence of Dr. O. P. Sharma, C.W. 2 shows that on 31.7.1980, he got the X-ray of Kamala Devi performed in his presence and on the left hand, first and second metacarpal bones were fractured.

The autopsy on the corpse of the deceased Ram Asrey was conducted on 18.7.1980 at 12.50 p.m. by Dr. O. P. Sharma, C.W. 2, who found on it the following ante-mortem injuries:

(a) Lacerated wound 3-1/2" x 1/4" x bone deep oblique on left side of skull.

(b) Lacerated wound 1-1/2" x 1/4" x oblique bone deep on middle and right side skull.

(c) Contusion 4" x 1" oblique on back and upper part of left shoulder.

(d) Contusion 4-1/2" x 1-1/2" oblique on side of left arm.

(e) Abraded contusion 3" x 1" oblique on outer side of left elbow joint.

(f) Contusion 5" x 1" oblique on side of front of left fore arm.

(g) Contusion 6" x 1-1/2" on back of right shoulder.

(h) contusion 4" x 1-1/2" oblique on the middle and side or right forearm.

(i) Area or multiple contusion 10" x 6" wide on side of right knee and lower part thigh and upper part leg oblique.

(j) Contusion 5" x 1" oblique on back of right thigh.

(k) Incised would 3" x 1/4" x muscle deep on lower part or left side.

On internal examination, Dr. Sharma found clotted blood present all round ; skull fracture 10" long 1/2" wide extending from left temporal to right temporal bone ; and clotted blood present in skull.

The cause of death spelt out in the autopsy report was shock and brain hemorrhage as a result of injury to brain.

In his statement in the trial court, Dr. Sharma stated that Injury Nos. 1 to 10 were attributable to a blunt weapon like lathi and Injury No. 11 to farsa and all the injuries could have been caused on 17.7.1980 at 2.30 p.m.

The investigation of the case was conducted in the usual manner by S.O. Rama Pratap Singh, P.W. 3 of police station Amethi. His evidence shows: The F.I.R. was lodged in his presence on 17.7.1980 at 4.20 p.m. and he immediately took over the investigation and proceeded to the place of the incident where he prepared the inquest on the corpse of the deceased and sent it for autopsy. He, thereafter, recorded the statement of witnesses and seized from the place of the incident plain and blood stained earth in separate containers, under recovery memos. He thereafter, prepared the site plan (Exb. Ka-3). On 7.10.1980, after completing the investigation, he submitted the charge-sheet against the Appellants.

The case was committed to the court of sessions in the usual manner, where the Appellants were charged on the counts mentioned in paragraph 1. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial.

9.1. During trial, in all, the prosecution examined three witnesses. Two of them, namely, Jagat Narain Pandey, P.W. 1 and his mother Smt. Kamla Devi, P.W. 2 were examined as eye-witnesses. The third witness examined was the Investigating Officer, S.O. Rama Pratap Singh, P.W. 3.

9.2. Two court witnesses, namely, Dr. R. K. Khandari, C.W. 1 and Dr. O. P. Srivastava, C.W. 2 were also examined.

9.3. It is significant to point out that during cross-examination, the suggestion given to the informant was that he was not ploughing his field at the time of the incident ; some unknown persons had assaulted his father Ram Asrey ; and when Smt. Kamla Devi rushed to his rescue, she was also assaulted by them. It is pertinent to mention that the suggestion given to Kamla Devi during her cross-examination was that in the early hours of the morning, her husband Ram Asrey was assaulted by some unknown persons and when she rushed to his rescue, she was also assaulted by them. The said witnesses denied the said suggestions.

9.4. The learned trial Judge believed the ocular account furnished by the eye-witnesses and convicted and sentenced the Appellants in the manner stated in paragraph 1.

Hence, this appeal:

We have heard learned Counsel for the parties ; perused, the depositions of the prosecution witnesses ; the material exhibits proved and tendered by the prosecution ; the statements of the Appellants recorded u/s 313, Cr. P.C. ; and the impugned judgment. In our view, this appeal deserves to be partly allowed ; Appellant Ram Ujagar deserves the benefit of doubt and Appellants Tirath Nath, Arjun Prasad, and Radhey Shyam instead of the offence punishable u/s 302/149, I.P.C. deserve to be convicted for that offence u/s 304 Part (ii)/149, I.P.C.

As mentioned in para 2 the appeal preferred by Appellants Rama Shankar and Ram Chandra would stand abated on account of their death.

So far as the involvement of the Appellants, other than Appellant Ram Ujagar in the incident is concerned, the same, in our view, is established by the credible ocular account furnished by the informant Jagat Narain Pandey, P.W. 1 and his mother Smt. Kamla Devi, P.W. 2.

We, now, propose giving our reasons as to why we find it credible against the Appellants other than Appellant Ram Ujagar.

We begin with the testimony of Jagat Narain Pandey, P.W. 1. Since in paragraph 2, we have set out the prosecution story primarily on the basis of the recitals contained in his examination-in-chief, we do not want to burden our judgment by reiterating all the details. In short, his evidence shows thus:

At the time of the incident, his father Ram Asrey and his mother Smt. Kamla Devi, P.W. 2 were returning from their paddy field, situated in the south of village and when they had reached near the field of Birju Lonia, Appellant Tirath Nath with a farsa emerged and inflicted a farsa blow on the head of Kamla Devi, which struck her. Thereafter, he gave two blows with the lathi portion of the farsa on Kamla Devi. In the meantime, his father Ram Asrey started running towards the village. Tirath Nath also ran behind him and gave farsa blow on his head and thereafter, the remaining five Appellants, namely, Rama Shankar, Raj Ujagar, Arjun Prasad, Radhey Shyam and Ram Chandra armed with lathis came and started chasing Ram Asrey and along with Tirath Nath assaulted Ram Asrey, who fell down, as a consequence of the assault, in the field of Ayodhya and died. When he (Jagat Narain Pandey) ran to the rescue of his parents, the Appellants also assaulted him with lathi. While the Appellants were assaulting Ram Asrey Appellant Ram Ujagar was instigating that he be killed. After the incident, he lodged the F.I.R.

We have gone through the statement of Jagat Narain Pandey and in our view, it inspires confidence against Appellants, other than Appellant Ram Ujagar. It is pertinent to mention that he stated that Appellant Tirath Nath assaulted Ram Asrey with a farsa (both from the sharp side as also from the blunt side) and we have seen that the ante-mortem injuries suffered by Ram Asrey, which we have extracted in entirety earlier, comprise to ten blunt weapon injuries and one incised wound. It is true that there is no farsa injury on the head of Ram Asrey but that may be on account of the blunt portion instead of sharp striking. It is also true that he categorically stated that Tirath Nath gave farsa blow on the head of Kamla Devi and there is no incised wound on her head but as observed earlier, it may be instead of sharp side, the blunt side may have struck her. In our view, his statement inspires confidence. His evidence that Appellants Rama Shankar, Arjun Prasad, Radhey Shyam and Ram Chandra assaulted the deceased Ram Asrey with lathis, is corroborated, as mentioned earlier by the evidence of Dr. Sharma, who found ten blunt weapon injuries on the person of the deceased Ram Asrey. His evidence that the said persons assaulted Kamla Devi is also in conformity with medical evidence because Dr. Khandari found six blunt weapon injuries on her person. His evidence in respect of assault on him also cannot be castigated as false because if lathi blows are not inflicted with force an external injury is not necessary and instead complaint of pain may be there. It is common knowledge that assault by blunt weapon does cause pain.

For the said reasons, in our view, the testimony of Jagat Narain Pandey inspires confidence, vis-a-vis Appellants other than Ram Ujagar.

So far as Appellant Ram Ujagar is concerned, we make no bones in observing that it would not be safe to accept the testimony of Jagat Narain Pandey, P.W. 1 because a perusal of the F.I.R. lodged by him and his statement u/s 161, Cr. P.C. shows that Ram Ujagar came at the fag end of the incident and only instigated. Since in his substantive statement he stated that he also assaulted the victims with lathi, he was confronted with said omission in his F.I.R., and statement u/s 161, Cr. P.C. and he could give no satisfactory answer for the same. In our view, it would not be safe to accept his statement in the trial court that Ram Ujagar assaulted the victims with lathi. Once his statement in respect of assault is eliminated, the only overt act which remains against Ram Ujagar is of instigation. It is a common knowledge that evidence of instigation or exhortation is a weak type of evidence and is often deployed by the prosecution to inflate the number of accused. In our view, it would not be safe to accept this evidence against the Appellant Ram Ujagar.

We now come to the evidence of Kamla Devi, P.W. 2. Her evidence shows: On the date and time of incident, when she along with her husband Ram Asrey was returning from her paddy field and when they had reached near the field of Birju Loniya, Appellant Tirath Nath emerged with a farsa and inflicted a farsa blow on her head and inflicted two blows with the blunt portion of the farsa on her person. She fell down as a consequence thereof. Her husband Rama Asrey started running. Appellant Tirath Nath chased him and inflicted a farsa blow on his head. The other five Appellants, namely, Ram Shankar, Ram Chandra, Arjun Prasad, Radhey Shyam and Ram Ujagar also chased him. All six of them belaboured Ram Asrey. When her son Jagat Narain Pandey ran to their rescue, he was also inflicted two lathi blows. While Ram Asrey was being assaulted, Ram Ujagar was instigating that he be killed.

We have gone through the statement of Smt. Kamla Devi and since she has furnished the same account as her son Jagat Narain Pandey, P.W. 1 and while dealing with his evidence, we have reached the conclusion that his evidence is in conformity with medical evidence and reliable against Appellants, other than Appellant Ram Ujagar, we also reach the same conclusion with respect to her evidence.

It should be borne in mind that Kamla Devi is an injured witness who suffered six typical blunt weapon injuries which were medically examined by Dr. R. K. Khandari on the date of the incident itself, at 8.30 p.m., who stated that they could have been caused on 17.7.1980 at 2.30 p.m. In our view, since the incident took place on the said date and time, it would be safe to accept the testimony of Smt. Kamla Devi, P.W. 2 against the Appellants, other than Appellant Ram Ujagar. It would be unsafe to accept it against Ram Ujagar for reasons mentioned in para 15.

Assurance to the ocular account furnished by Jagat Narain and Kamla Devi is also lent by the circumstance that within two hours of the incident the former lodged F.I.R. wherein the essential features of the prosecution case, including:

(a) the time and place of the incident ;

(b) the names of the Appellants and the weapons assigned to them ;

(c) the specific overt acts attributed to the Appellants ;

(d) the manner of assault ;

(e) the names of victims ; and (f) the motive for the incident,

have all been mentioned.

Courts attach great importance to a prompt F.I.R. because the same substantially eliminates the possibility of embellishments and concoction creeping in the prosecution case.

In our view, this prompt F.I.R. lends a seal of assurance to the prosecution case against Appellants, other than Ram Ujagar.

This brings us to the question as to what offences have been committed by the Appellants. In our view, the learned trial Judge acted correctly in convicting the Appellants for offences under Sections 325/149, I.P.C. and 323/149, I.P.C., as Appellant Tirath Nath for that punishable u/s 148, I.P.C. and Appellants Ram Shankar, Arjun Prasad, Radhey Shyam and Ram Chandra for that punishable u/s 147, I.P.C.

We, however, feel that the learned trial Judge erred in convicting the Appellants Rama Shanker, Tirath Nath, Arjun Prasad, Radhey Shyam and Ram Chandra for the offence punishable u/s 302/149, I.P.C.

In our judgment, in the factual matrix in which the incident took place, it cannot be said that the murder of Ram Asrey was committed either in the prosecution of the common object of unlawful assembly of which the Appellants were members or they had knowledge in respect of its commission.

In our judgment, the following circumstances show that the murder of the deceased was not committed by the Appellants in prosecution of the common object of the unlawful assembly:

(a) Although Smt. Kamla Devi, P.W. 2 and the deceased Ram Asrey were returning together, the first target of the Appellants was Kamla Devi and Ram Asrey was only assaulted thereafter, when he tried to run away:

(b) Although Appellant Tirath Nath was armed with a farsa, which was a lethal weapon, and eleven injuries were inflicted on deceased Ram Asrey by the Appellants amongst them ten were blunt weapon injuries and only one was an incised wound which was located below the left heal of Ram Asrey. In our view, had the common object of the Appellants been to murder Ram Asrey, farsa, injuries would have been inflicted on vital parts of his body.

(c) Only two of the injuries suffered by the deceased, namely, ante-mortem Injury Nos. 1 and 2 were on the head of the deceased and the remaining were distributed between shoulder, hands and legs of the deceased ; and (d) Prosecution has not been able to specify as to which of the five persons armed with lathi were responsible for causing the two blunt weapon injuries suffered by the deceased on his head which as per evidence of autopsy surgeon Dr. O. P. Sharma proved fatal.

In our judgment, the second part of Section 149, I.P.C. which stipulates of knowledge on the part of members of unlawful assembly of the likelihood of the happening which has resulted would also not be attracted. The expression knew, as used in it in a pletohra of decisions has been construed to connote a high probability ; a shade short certainty. In our view, when the entire facts are taken into consideration, it would be hazardous to impute to the Appellants'' knowledge of the murder of Ram Asrey in terms of Section 300, I.P.C. In our judgment, it would be reasonable to hold that when the Appellants armed with lathi, farsa as members of an unlawful assembly, assaulted the deceased, they had the knowledge of his death, in terms of clause thirdly of Section 299, I.P.C., the breach of which would be punishable u/s 304 Part (ii)/149, I.P.C. Hence, in our view an offence punishable u/s 304 Part (ii)/149, I.P.C. would be made out.

This leaves us with only one question, namely, that of sentence. So far as the sentences for offences punishable under Sections 325/149, I.P.C., 323/149, I.P.C., 148, I.P.C. and 147, I.P.C. are concerned, in our view the same are not excessive and warrant no reduction. The question is what sentence should be awarded for the offence punishable u/s 304, Part 2/149, I.P.C. Since the incident took place nearly twenty-three years ago and there is nothing to indicate that the Appellants have any adverse criminal history, in our judgment, a sentence of five years R.I. thereunder would meet the ends of justice.

In the result, this appeal is partly allowed:

(A) We give benefit of doubt to the Appellant Ram Ujagar and acquit him on all the counts, namely, under Sections 302/149, I.P.C. ; 325/149, I.P.C. ; 323/149, I.P.C. and 147, I.P.C. In case he has paid the fine of Rs. 500 for the offence punishable u/s 302/149, I.P.C., the same shall stand refunded to him. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged.

(B) Although we maintain the convictions and sentences of Appellants Ram Chandra, Arjun Prasad and Radhey Shyam for the offence, punishable under Sections 325/149, I.P.C. and 323/149, I.P.C. as also that of Appellant Tirath Nath for that punishable u/s 148, I.P.C. and that of Appellants Arjun Prasad and Radhey Shyam for that punishable u/s 147, I.P.C. but we acquit Appellants Tirath Nath, Arjun Prasad and Radhey Shyam for the offence punishable u/s 302/149, I.P.C. and set aside their conviction and sentence thereunder and instead convict them for the offence punishable u/s 304 Part (ii)/149, I.P.C. and sentence each of them to undergo five years'' R.I. Their sentence under the said count would run concurrently with that under the other counts. In case the said Appellants have paid the fine of Rs. 500 for the offence punishable u/s 302/149, I.P.C., the same shall stand refunded to them. Appellants Ram Chandra, Arjun Prasad and Radhey Shyam are on bail. They shall be taken into custody forthwith to serve out their sentences.

(C) As mentioned earlier Appellants Rama Shanker and Ram Chandra are dead. Hence, their appeal stands abated in view of the provisions contained in Section 394, Cr. P.C.