Ramesh vs State of U.P.

U.S. Tripathi, J.—The above two appeals have been preferred against the judgment and order dated 26.5.1981 passed by I Vth Additional Sessions Judge, Saharanpur in Sessions Trial No. 468 of 1980 convicting the Appellant Ramesh under Sections 302 and 201, I.P.C. and sentencing him to undergo imprisonment for life u/s 302, I.P.C. and R.I. for a period of three years u/s 201, I.P.C. and convicting Appellants Salek Chand, Pooran and Naresh u/s 201, I.P.C. and sentencing each of them to undergo R.I. for a period of three years.

The prosecution story, briefly stated ; was as under:

Appellants Ramesh, Salek Chand, Pooran and Naresh are real brothers and sons of Shambhu Chauhan. They were residents of village Missarpur, P.S. Jawalpur, district Saharanpur.

Ram Kumar (12) deceased younger brother of Dharam Singh (P.W. 1) was employed with Ami Chand (P.W. 5) to graze his she-buffalos. Attar Pal (10) the other deceased, was son of Paltu. On 9.7.1980 Ram Kumar deceased was grazing two she buffalos of Ami Chand (P.W. 5) in the jungle of village Missarpur near ''Chari'' field of Appellant Ramesh. Attar Pal was cutting grass near the said field. The she-buffalos entered into the Chari field of Appellant Ramesh and damaged a portion of the crops by grazing it. Appellant Ramesh came there and when he saw his Chari crops being grazed and damaged by she-buffalos, he caught hold Ram Kumar and Attar Pal deceased at about 12 noon and started beating them. Taking them and the she-buffalos he proceeded to his house. Jay Pal (P.W. 2) and Kastram (P.W. 8) saw Appellant Ramesh on the chak road taking the above two boys Ram Kumar and Attar Pal beating along with the she-buffalos. They asked Appellant Ramesh as to why he was beating the boys and requested them to leave them. But Ramesh told that they had got his "Chari" crop grazed from buffalos and he would not leave them. Saying it, he took the deceased and she-buffalos to his house. Jay Pal (P.W. 2) and Kastram (P.W. 8) informed about the incident to Dharam Singh (P.W. 1) at his house at about 4-5 p.m. On getting above information. Dharam Singh (P.W. 1) along with Paltu went to the house of Ami Chand (P.W. 5) and taking him came to the house of Appellant Ramesh. The Appellant Ramesh met them at his house and the two buffalos of Ami Chand (P.W. 5) were tied in front of his house. Ram Kumar and Attar Pal deceased were not seen there. Dharam Singh (P.W. 1) enquired from Ramesh as to why he had detained buffalos. Then, he told that his brother had got his "Chari" crops damaged. Ramesh agreed to leave the buffalos after taking Rs. 20 as damages and when Dharam Singh enquired about Ram Kumar and Attar Pal deceased, he told that they would reach to their houses. Dharam Singh then came to his house. At about 9-10 p.m. he along with Paltu and Ami Chand again went to the house of Appellant Ramesh to take the deceased, but doors of his house were closed. He and other villagers including Amar Singh (P.W. 4) were searching the boys in the night. At about 4 a.m., when Dharam Singh (P.W. 1) and Amar Singh (P.W. 4) along with Paltu, Mahender and Salekh reached on Laksar Road, the Appellants Ramesh, Salek Chand, Pooran and Naresh were seen in the rasta taking the dead bodies of the two boys Ram Kumar and Attar Pal. Observing the Appellants Dharam Singh and others raised alarm and hearing their alarm, the Appellants threw the dead bodies of the two boys in the pond and leaving the clothes of the boys on the bank of pond ran away. They were chased by the above witnesses, but could not be apprehended. Dharam Singh (P.W. 1) and others removed dead bodies of the two boys from the pond (johar) and kept it on the bank of it. Several other persons also assembled on the spot. Dharam Singh (P.W. 1) got report (Ext. Ka-1) written from Harish Chand and came to police station Jawalpur, where he lodged report at 7.40 a.m. on 10.7.1980.

On the basis of written report Ext. Ka-1, Sri Narain Singh (P.W. 6) constable clerk prepared chik F.I.R. (Ext. Ka-5) made an endorsement of the same at G.D. report (Ext. Ka-6) and registered a case against the Appellants under Sections 302 and 201, I.P.C.

Investigation of the case was taken by Sri Ram Sarup Yadav (P.W. 7). The I.O. along with police force reached village Missarpur at 8.30 a.m. He saw the dead bodies of two boys Ram Kumar and Attar Pal on the spot. He conducted inquest of the dead bodies, prepared inquest report, sealed the bodies and sent it for post-mortem. The I.O. also took into possession the clothes of the two deceased and sealed it. He inspected the place of occurrence the place where buffalos were grazing and the place of recovery of dead bodies and prepared site plan. He interrogated Dharam Singh (P.W. 1) and Kastram (P.W. 8). The I.O. searched the Appellants, but they were not available. On 12.7.1980 he apprehended Appellant Salek Chand. On 13.7.1980 the I.O. interrogated Jay Pal (P.W. 2), Amar Singh (P.W. 4) and Ami Chand (P.W. 5) and inspected house of Appellants and prepared site plan.

The autopsy on the dead bodies of the deceased was conducted on 11.7.1980 by Dr. Yashpal (P.W. 3), who found contusions as ante-mortem injuries on the person of deceased and cause of death as shock and haemorrhage. The I.O. completed remaining investigation and submitted charge sheet against the Appellants.

Cognizance of the case was taken by the Magistrate, who committed the case of the Court of Sessions.

The Appellant Ramesh was charged with the offences punishable under Sections 302 and 201, I.P.C., while other Appellants were charged with the offence punishable u/s 201, I.P.C. only. The Appellants pleaded not guilty and contended that they were falsely implicated on account of Party Bandi between Chauhans and Harijans.

The prosecution in support of its case examined Dharam Singh (P.W. 1), Jay Pal (P.W. 2), Dr. Yashpal (P.W. 3), Amar Singh (P.W. 4), Ami Chand (P.W. 5), Narain Singh, Head Constable (P.W. 6) Ram Swaroop Yadav (P.W. 7) and Kastram (P.W. 8). The Appellants did not adduce any evidence in their defence.

The learned Sessions Judge on considering evidence of the prosecution held that the prosecution has successfully proved the guilt of Appellant Ramesh for the offences punishable under Sections 302 and 201, I.P.C. and the guilt of other Appellants for the offence punishable u/s 201, I.P.C. With these findings, he convicted and sentenced the Appellants as mentioned above.

Aggrieved with their above conviction and sentence, the Appellants have come up in these appeals.

We have heard Sri G. S. Chaturvedi learned Counsel for the Appellant Ramesh and Sri Raghuraj Kishore, learned Counsel for the Appellants Salek Chand, Pooran and Naresh and the learned A.G.A. for the State in both the appeals and have gone through evidence on record.

Both the appeals have been preferred against the same judgment and order and therefore, are being disposed of by a common judgment with the consent of the learned Counsel for the parties.

There is no direct evidence in this case and the case is based on circumstantial evidence. It is settled law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

It is further settled that the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.

In this case, the prosecution has relied on following circumstances:

(1) Ram Kumar deceased was employed with Ami Chand (P.W. 5) to graze his she-buffalos. On the date of occurrence, he was grazing the two she-buffalos of Ami Chand in the jungle of Missarpur near the ''Chari'' field of Appellant Ramesh and Attar Pal deceased was cutting grass there. In the course of grazing, the two she-buffalos damaged ''Chari'' crops of Appellant Ramesh. Appellant Ramesh came to the spot and seeing his ''Chari'' crops damaged and grazed by she-buffalos, caught hold the two boys and the two she-buffalos and was taking the boys and buffalos to his house beating them.

(2) Appellant Ramesh had tied the she-buffalos at his house and left them only on payment of Rs. 20 as damages to his "Chari" crops. When enquired about boys, he told that they would reach their houses.

(3) On the night of occurrence at about 9-10 p.m., Dharam Singh (P.W. 1) and others again came to the house of Appellant Ramesh and found his doors closed and did not see the children.

(4) At about 4 a.m. in the night, the Appellant Ramesh and other Appellants were taking the dead bodies of the two boys towards pond near Laksar Road and when they were objected by Dharam Singh (P.W. 1) and others, they threw the dead bodies in the pond and keeping the clothes of the deceased near the pond ran away.

(5) There were ante-mortem injuries on the persons of deceased and cause of death was shock and haemorrhage as a result of ante-mortem injuries.

Before considering the above circumstances, we would like to consider cause of death of the two deceased, which has not been challenged.

Dr. Yashpal (P.W. 3), who conducted autopsy on the dead bodies of the two boys on 10.7.1980 at 5.45 p.m. and 8.50 p.m. respectively and found following facts:

Dead body of Ram Kumar aged about 12 years:

The deceased had average built body. Rigor mortis passed off from the upper extremities and just passing off from the lower extremities. Face was swollen. Tongue coming-out between teeth and froathen eye ball was protruding. Blood was coming out from nostril.

There were following ante-mortem injuries on the person of the deceased:

(1) Contusion 5.5 cm. ? 4 cm. on the lower part of the scrotum. Scrotum was also swollen.

(2) Contused swelling 7 cm. ? 5 cm. on the middle of the right side of the scalp, 6 cm. above the root of the right ear.

That internal examination showed that scrotum was swollen with contusion. Clotted blood present on the surface of the scalp under injury No. 2 Membrances were slightly congested. Subcutaneous tissues and muscular tissues were congested. There was fracture of left 4th, 5th ribs on the front and right 3rd, 4th and 5th ribs on front side. Both pleuras were lacerated with fractured ribs both sides. Both pleura cavity contained about 6 ounce blood. Trachea was deeply congested. Right lung (lower lobe) was lacerated with fractured ribs.

Cause of death was shock and haemorrhage, as a result of ante mortem injuries noted above and death had taken place about 1-1/2 to 2 days.

Dead body of Attar Pal deceased aged about 10 years.

The deceased had average built body. Rigor mortis absent on the upper extremities and passing off from the lower extremities. Eyes closed, blood coming-out from nostril. Skin pealed of at places. Tongue was swollen and coming out between teeth.

There were following ante mortem injuries on the person of the deceased:

(1) Contusion 3 cm. ? 2 cm. on the left half of the forehead.

(2) Contusion 4.5 cm. ? 4 cm. on the lower part of the scrotum which was swollen.

(3) Contusion 3 cm. ? 1.5 cm. on the root of the penis.

There was one contusion present on the scrotum and one on the penis.

Internal examination showed that subcutaneous tissues and muscular tissues were congested. There were fracture of right 3rd, 4th, 5th, 6th and 7th ribs and left 3rd, 4th and 5th ribs (both on front side). Pleura was lacerated on the side of fractured ribs. Pleura contained about 3 ounce of blood. Mucous was present on larynx and larynx was deeply congested. Right lung was lacerated at places and congested with fractured ribs. Left lung was lacerated at one place with fractured ribs. Tongue was swollen and coming out between teeth.

Cause of death was shock and haemorrhage as a result of ante mortem injuries noted above and death had occurred 1-1/2 to 2 days.

The Appellants have not challenged above medical evidence and it is thus established that the two deceased died on account of ante-mortem injuries on their persons.

On circumstances No. 1 and 2, there is evidence of Dharam Singh (P.W. 1), Ami Chand (P.W. 5), Ram Swaroop Yadav (P.W. 7), Jay Pal (P.W. 2) and Kastram (P.W. 8). Dharam Singh (P.W. 1), stated that his younger brother Ram Kumar aged about 12 years was employed at the house of Ami Chand to graze his she-buffalos and he used to take the she-buffalos in the jungle for grazing and to return in the evening. That on the date of occurrence, Ram Kumar had taken the two she-buffalos of Ami Chand in the jungle of village Missarpur for grazing. Ami Chand (P.W. 5) has also stated that Ram Kumar was employed at his house for grazing his buffalos. In the morning of the date of occurrence, Ram Kumar had taken his two she-buffalos for grazing in the jungle. He further clarifies that Ram Kumar used to take she-buffalos from his house at about sun rise and used to return to his house in the evening. That Ram Kumar used to take meals at his house in the evening. He was not coming to his house in the afternoon. The above evidence of two witnesses have not been challenged. Thus, it is established that Ram Kumar deceased was employed with Ami Chand (P.W. 5) to graze his she-buffalos and on the date of occurrence he had taken she-buffalos to graze in the jungle of Missarpur.

On the later part of the above circumstances, there is evidence of Ram Swaroop Yadav, I.O. (P.W. 7), who stated that on the next date of the occurrence, he visited the field of Appellant Ramesh and saw that a portion of Chari crop was grazed and damaged. Situation of above field was shown in the site plan (Ext. Ka-17), which shows that field of Appellant Ramesh was situated near chak road and north western portion of it was damaged by grazing and there were also foot steps of she-buffalos in the said field. The above fact mentioned in the site plan was on the personal observation of the I.O. As such, it has been established that ''Chari'' crops of Appellant Ramesh was grazed and damaged by she-buffalos. The above circumstances further finds support from the evidence of Jay Pal (P.W. 2) and Kastram (P.W. 8), who stated that on the date of occurrence at about 12-1 p.m., when they came on the chak road in village Missarpur, they saw Appellant Ramesh taking the two boys Ram Kumar and Attar Pal beating them and the two buffalos and when they asked Ramesh as to why he was beating, he told that they had damaged his ''Chari'' crops by grazing by buffalos. Jay Pal (P.W. 2) and Kastram (P.W. 8) have also proved their presence on the said place, as Jay Pal (P.W. 2) stated that he used to sell milk at Kankhal and after selling milk he used to return to his house. He further stated he started from his house with milk at 9 a.m. and reached Kankhal bazar at 10 a.m. and used to sell his milk within 10-15 minutes. Thereafter, he used to take tea etc. and used to return to his house on cycle. That on the date of occurrence, he had started from Kankhal at 11-11.30 a.m. and reached the spot at about 12-1 p.m. Kastram (P.W. 8) stated that his father had taken contract of constructing pullia and he used to water it after construction. The pullia was completed 4-5 days before the occurrence and he used to go to water it thrice in a day. The pullia was situated towards north west of village Missarpur on Laksar Haridwar main road. Thus, the presence of above witnesses on the spot has been fully explained. Those witnesses further stated that after seeing Appellant Ramesh taking the boys and buffalos, they separately came to the house of Dharm Singh (P.W. 1) to inform him. They met him at about 4 p.m. and then they informed him. There is nothing in the cross-examination of above witnesses to show that they had any reason to depose falsely against the Appellants. Therefore, circumstances 1 and 2 have been established.

On third circumstance, there is evidence of Dharam Singh (P.W. 1) and Ami Chand (P.W. 5). Dharam Singh (P.W. 1) stated that on the date of occurrence at about 4 p.m., Jay Pal (P.W. 2) and Kastram (P.W. 8) of his village told him that Appellant Ramesh had taken his brother Ram Kumar and other boy Attar Pal, son of Paltu beating along with two buffalos to his house. That on the above information he along with Paltu went to the house of Ami Chand (P.W. 5) and told him about it. He along with Ami Chand (P.W. 5) and Paltu went to the house of Ramesh and saw that two she-buffalos of Ami Chand were tethered at the house of Ramesh. When he asked Ramesh as to why he had tethered buffalos, he told that his brother had damaged his ''Chari'' crops and he handed over the she buffalos only on taking Rs. 20 as damages. That when he enquired about the two boys he told that boys would reach their house. Ami Chand (P.W. 5) sated that on the date of occurrence at about 4-5 p.m., Dharam Singh (P.W. 1) and Paltu came to his house and told that Appellant Ramesh had taken Ram Kumar and Attar Pal along with his two she-buffalos to his house and boys had not returned. He along with Dharam Singh (P.W. 1) and Paltu went to the house of Ramesh and Ramesh met at his house. The two she-buffalos were tethered at his house, but the boys were not there. Ramesh gave the she buffalos after taking Rs. 20 and on enquiry about the two boys he told that the boys would reach their house. There is nothing on record to disbelieve above witnesses on the above fact.

On the next circumstances, there is evidence of Dharam Singh (P.W. 1), who stated that after returning from house of Appellant Ramesh he waited his bother and Attar Pal, but when they did not return to house, he again came to the house of Appellant Ramesh at 9-10 p.m. and found his doors closed and children were not there.

The learned Counsel for the Appellants contended that this fact is not mentioned in the F.I.R. and was subsequently developed during evidence. He further contended that conduct of Dharam Singh (P.W. 1) is highly improbable as when his brother did not come to his house, he kept silence and neither lodged report of the occurrence at the police station, nor he collected any Panchayat or took the help of the villagers in searching the two boys. Having gone through the evidence on record, we find that there is no improbability in the conduct of Dharam Singh. It is evident from his evidence that on getting information that his brother and Attar Pal were taken by Ramesh, he along with Ami Chand (P.W. 5) and Paltu immediately went to the house of Ramesh and asked about the boys. Appellant Ramesh told that the boys would reach to their house. There was no direct enmity between Dharam Singh and Appellant Ramesh. He had taken the boys on small thing on damaging his ''Chari'' crops, which is not a serious matter and often takes place in the villages. Damages of loss was also paid to him. It was but natural from Dharam Singh (P.W. 1) to have believed the assurance of Appellant Ramesh that the boys would reach to their houses. There was nothing to doubt on Ramesh and to think otherwise and he thought that the boys would have gone somewhere due to fear of being scolded of and beating and would come to their houses. Therefore, the conduct of Dharam Singh (P.W. 1) in not lodging report in the night was not unnatural and improbable. It is also clear from the evidence of Dharam Singh (P.W. 1) that he took help of villagers in searching the boys in the night.

It is true that subsequent visit at the house of Ramesh at about 9-10 p.m. is not mentioned in the F.I.R., but this omission is not material and does not affect the prosecution case.

On the fourth circumstance, there is evidence of Dharam Singh (P.W. 1) and Amar Singh (P.W. 4). Dharam Singh (P.W. 1) stated that when the boys did not return to their houses, he along with Salek Chand (brother of Dharam Singh) Paltu and Mahendra were searching the boys in the night. At about 4 a.m. when they reached on Laksar road they saw Appellants Ramesh, Salek Chand, Pooran and Naresh coming towards jokhad (Pond) along with dead bodies of the two boys and when they raised alarm, the above Appellants threw naked dead bodies of the boys in the pond and keeping their clothes on the bank of pond, ran away. He clarified in his evidence that two of the Appellants were taking the dead bodies of the boys and two of them were taking the clothes of the deceased. Amar Singh (P.W. 4) has also stated that in the night of occurrence, he along with Dharam Singh (P.W. 1), Paltu, Mahendra and Salek Chand were searching Ram Kumar and Attar Pal, the two boys of his village, who were missing. At about 4-4.30 a.m. when they reached near ''Gher'' of Lahaur Singh near pond they saw Appellants Ramesh, Salek Chand, Pooran and Naresh taking the dead bodies of the two boys and when they saw them (witnesses) they threw the dead bodies in the pond and ran away. They were chased, but could not be apprehended. When he saw the boys, they were dead.

It was but natural for Dharam Singh (P.W. 1) to search the boys in the night, when they did not return to house till 9-10 p.m. taking the help of other villagers. As mentioned above, no enmity, ill-will or grudge has been suggested or shown to the above witnesses and there is nothing on record to show that the witnesses had any reason to depose falsely against the Appellants. It was suggested to those witnesses that the Appellants belonged to Chauhan community and the witnesses to Jatav community and there was ''Party Bandi'' between the two communities. But this cannot be a ground to falsely implicate the Appellants.

It was contended by the learned Counsel for the Appellants that according to evidence of Dharam Singh (P.W. 1) and Amar Singh (P.W. 4) they saw the Appellants taking the dead bodies of the deceased at about 4-4.30 a.m. At that time, it was dark and no source of light has been alleged. None of the Appellants was arrested and therefore, the witnesses were not in a position to recognise the Appellants. This contention has no force, as the above incident had taken place in the month of July, in which sun rises at about 5.30 a.m., and prior to sun rise there is sufficient light to recognise the known persons of the village. Moreover, the witnesses were residents of village and were habitual to work in fade light and they could easily recognise the persons of their own village in such light.

It was further contended that report of the occurrence was lodged after recovery of dead bodies making it ante-timed and the name of Appellants was mentioned after deliberation and consultation. The report of the occurrence was lodged at 7.40 a.m. and the distance of police station was 8 k.m. Dharam Singh (P.W. 1) clarified that he got prepared report after one and half hours of the recovery of the dead bodies and went to police station on foot. Head constable Sri Narain Singh (P.W. 6) stated that Dharam Singh (P.W. 1) came to police station at 7.40 a.m. and lodged report. He denied the suggestion that General Diary was stopped and report was written ante-timed. The I.O. Sri Ram Swaroop Yadav (P.W. 7) stated that he reached the spot at 8.30 a.m. and proceeded from the police station after lodging report. There is nothing on record to disbelieve above witnesses and therefore, there is nothing on record to show that report was lodged ante-timed.

On the last circumstances, the medical evidence of Dr. Yashpal (P.W. 3) shows that there were ante-mortem injuries on the persons of the two deceased. As held above the two deceased died on account of above injuries. Dr. Yashpal (P.W. 3) clarified that the injuries on the persons of the deceased were caused by high pressure on their chest. The medical evidence further shows that there were no signs of drowning. Not even a drop of water was found in the lungs of the deceased. There was no suggestion that the deceased died due to drowning or some other cause. Thus, the possibility of death by accident or otherwise has been completely ruled out.

On taking above circumstances together, we find that the above circumstances have been fully established and they are of conclusive nature and are consistent with the only hypothesis of the guilt of the Appellants and inconsistent with every hypotheses of their innocence. There is no explanation from the side of Appellants that the two boys were left after taking them to their house. Contrary to it, the Appellant Ramesh gave false reply to Dharam Singh (P.W. 1) and Ami Chand (P.W. 5) that the boys would reach their house. The Appellants have also not given any explanation as to what happened to the two boys, when they were taken by Appellant Ramesh to his house. This fact was in his exclusive knowledge. Non-explanation of the above circumstance also provides a missing link to connect Appellant Ramesh with the murder of the deceased. Thus, the aforementioned circumstantial evidence has established the guilt of the Appellants. The appeal has, therefore, no force.

Both the appeals are accordingly, dismissed. The conviction and sentence of Appellant Ramesh under Sections 302 and 201, I.P.C. and that of Appellants Salek Chand, Pooran and Naresh u/s 201, I.P.C. awarded by the trial court are confirmed. The Appellants are on bail. They shall surrender before the C.J.M. concerned. The C.J.M., Saharanpur is directed to procure the arrest of the Appellants by issuing non-bailable warrants and taking all other steps available under law to secure their arrest and sent them to jail.

Copy of the order be sent to C.J.M., Saharanpur within a week for compliance and report.