State of U.P. vs Daya Ram and Others

K.D. Shahi, J.—This State appeal has been preferred against the judgment and order of acquittal of Respondents Daya Ram. Ram Siddh, Deena Nath, Deep Chandra and Bharat Under Sections 147, 148 and 302/149. I.P.C. passed by Sri Umesh Chandra Tiwari, the then Special Additional Sessions Judge. Jaunpur on 10.12.1990 in S.T. No. 212 of 1988 State v. Daya Ram and Ors. police station Maharajganj, district Jaunpur.

The brief facts of the case are that on 10.11.1986 at 21.10 p.m., Sri Ram Siddh Pandey lodged the F.I.R. at police station Maharajganj, that on 10.11.1986 at 7.30 p.m. while he along with his brother Ram Achhiber, who was employed as a Consolidator in the Consolidation Department, Jaunpur, were coming from Gaddopur Bazar towards their quarter, accused Daya Ram Pandey, Ram Siddh Pandey. sons of Sri Ram Janak Pandey, Deena Nath Pandey, son of Deep Chandra Pandey and Deep Chandra Pandey along with two other unknown persons emerged. There was enmity on account of litigation regarding land between both the families. Ram Siddh and two unknown persons caught hold of Ram Achhaiber, Daya Ram Pandey and Deena Nath Pandey used their Kattas (country-made pistols). The complainant made an alarm on which P.W. 2, Ziledar Tiwari, P.W. 3, Harish Chandra Yadav and Devi Prasad Yadav (nephew of the informant) reached and saw the occurrence. Ram Achhaiber fell down and died on the spot due to the injuries.

On the basis of the written F.I.R., Chick Report was prepared at the police station and a case was registered in. G.D. The F.I.R. is Ext. Ka-1 and Chick Report is Ext. Ka-3. Copy of the G.D. entry is Ext. Ka-5. The Investigating Officer took the investigation of the case in his hand, recorded the statements of the witnesses, inspected the spot and prepared the site plan as Ext. Ka-11 and submitted the charge-sheet in the Court.

Bharat Singh has not been named in the F.I.R. He is said to be the driver of the tractor of Deep Chandra and it is said that his implication came out during the investigation. Thereafter, the charge-sheet was filed against him as well. The other unknown person could not be apprehended till date.

The post-mortem examination of the victim was conducted by Dr. L.C. Gupta, P.W. 5 on 12.11.1986 at 9.00 a.m. The doctor has found the following anti-mortem injuries at the person of the deceased:

One gun shot injury on the side in between lower part of right extreme ear outer angle of right eye away from right ear (wound of entries) oval 4 cm. x 2-1/2 cm. through and through with wound of exit on the lower 1/3 of left ear 6 cm. x 3-1/4 cm.

Lacerated wound on right side of forehead 2 cm. above to outer 1/4 cm. of right eye both side 1/2 cm. x 1/2 cm. x bone.

Lacerated wound on the left side of outer forehead 2 cm. from left ear side 1/2 cm. x 1/2 cm. x bone.

Three abrasions at a distance of 1/2 cm. and 3/4 cm. from laceration side from up to down 6 cm. x 1/2 cm., 5 cm. x 3/4 cm. and 6-1/2 cm. x 1/2 cm.

Abraded contusion to the left side of upper at mid chest 4 cm. above to nipple 2 cm. from midline in the area 10-1/2 cm. x 6-1/2 cm.

On internal examination the doctor had found fracture of 5th, 6th, 7th and 8th ribs of the deceased. The doctor had reported the death of the victim due to shock and hemorrhage as a result of anti-mortem injuries.

However, on committal of the case to the Court of Session, the learned Sessions Judge charged accused Daya Ram, Ram Siddh, Deena Nath, Deep Chandra and Bharat Under Sections 147, 148, and 302/149, I.P.C. for the murder of Ram Achhaiber on 10.11.1986 at 7.30 p.m. The charges were read over and explained to the accused persons in Hindi. They pleaded not guilty and claimed to be tried.

In proof of its case, the prosecution examined as many as 7 witnesses, out of whom P.W. 1, Ram Siddh, P.W. 2, Ziledar Tiwari and P.W. 3, Harish Chandra Yadav are the eyewitnesses. P.W. 4, Constable-272 Digvijay Nath Shukla took the dead body of the deceased in sealed condition for post-mortem.

P.W. 5, Dr. L.C. Gupta did not narrate the injuries of the victim in his statement and only gave the statement that the victim has suffered six injuries. Under the mandatory provisions of law, he was required to prove the injuries of the victim as a fact and should have stated the actual injuries along with the length and breadth, sheet of assault in his statement, but the learned Sessions Judge has recorded only short statement.

P.W. 6, Ram Janam Upadhya has prepared the Chick Report and made the G.D. entry.

P.W. 7, Narendra Prasad Singh is the Investigating Officer. He has proved the investigation of the case and the police papers.

Coming to the eyewitnesses, there are three eyewitnesses in this case, namely, P.W. 1, Ram Siddh, P.W. 2, Ziledar Tiwari and P.W. 3, Harish Chandra Yadav as stated above.

In his statement Ram Siddh stated that he is brother of the deceased. The deceased was a Consolidator at Jaunpur. He came to the quarter of the informant at Gaddopur Bazar and said to visit the village. They were going together on the road, accused Daya Ram, Deena Nath, Ram Singh, son of Ram Janak Pandey, Deep Chandra and two other unknown persons met. Deep Chandra exhorted. It is to be noted that one Ram Siddh Pandey, son of Wishwanath is the informant and the brother of the deceased and the other Ram Siddh, and son of Ram Janak Pandey is an accused in this case. However, Ram Siddh and two unknown persons caught hold of the victim. The victim tried to rescue and went towards the Patri of the road. At this Daya Ram and Deena Nath fired. The victim fell down on the Patri of the road where small pieces of stones (Gitti) were lying. He made an alarm and on making his alarm, Ziledar Tiwari, Harish Chandra Yadav and Devi Prasad came and saw the occurrence. He also stated about the enmity. He further stated that it was a moon-lit night; he had a torch containing three cells with him. He saw the occurrence in these lights. He was cross-examined regarding enmity. In the cross-examination, he admitted that he was a teacher and used to go to the school at 10.00 a.m. and return at 4.00 p.m. in the evening. He further clarified that on the particular date, he was on leave. He further stated that Bharat was driver of the tractor of Daya Ram. He again admitted that he did not mention it in the F.I.R. that under what light, he saw the occurrence and further that he did not mention this fact in the F.I.R. that Bharat is a driver of Daya Ram. He further admitted that he did not mention it in the F.I.R. that the victim fell at Gitti.

P.W. 2, Ziledar Tiwari and P.W. 3, Harish Chandra Yadav corroborated the statements of the aforesaid witness. Ziledar Tiwari, however, admitted that he was of the village of the informant and the deceased. He further admitted that he had gone to the market to purchase some medicines. He stated that he did not know the name of the doctor, who had prescribed the medicines. He stated that he had gone to Gaddopur Bazar only to purchase medicines. It is to be mentioned here that the Investigating Officer stated that the witnesses did not state this fact to him. He stated that two fires were made, one by Daya Ram and the other by Deena Nath.

P.W. 3, Harish Chandra Yadav admitted that he was a teacher and had passed High School Examination from village Gaddopur in 1970 while the informant had passed High School Examination from the same school in 1969. He further admitted that his statement was recorded by the Investigating Officer after 12-13 days.

The most important witness in this case is P.W. 5, Dr. L.C. Gupta. Besides proving the actual injury, he also stated that on internal examination, he has found fractured, 5th, 6th, 7th and 8th ribs, which were not possible from the injuries which, had been caused at the person of the deceased. He stated that the fracture of these ribs were possible from crush by car, tractor or any other heavy vehicle. He stated that these injuries were not possible by ordinary fire. The Investigating Officer has proved the investigation as stated above.

The learned Sessions Judge after appreciating the entire evidence on record passed the order of acquittal against which order the present appeal has been filed.

The eye-witnesses may or may not be believed, a man may belie but the circumstances never. Ram Siddh Pandey, the informant is the brother of the deceased. He may or may not be an eye-witness, but if his brother has been killed and the accused persons are inimical, even if he has not seen the occurrence, he had to support the prosecution story.

P.W. 2, Ziledar Tiwari is a partisan witness. He has been surety in criminal case for the informant side. He has been witness with them against the accused persons. He stated that at the time of occurrence, he had gone to purchase some medicines. He did not know the name of the doctor, who prescribed the medicines. He did not state what the illness of his father was. He did not produce the prescription. He did not produce the receipts of the medicines. He did not state this fact to the Investigating Officer that he had gone to the market to purchase medicines. He did not state any other reason for his going to the market. If his going to the market is disbelieved, his witnessing the occurrence becomes doubtful.

P.W. 3, Harish Chandra Yadav is a teacher and friend of the informant. The informant is also a teacher. He stated that the school is closed at 4.00 p.m. From the school, he went to the house through market. He stayed in the market up to 7.30 p.m. ordinarily; it cannot be believed that in the month of November, a person will stay unnecessarily in the market till 7.30 p.m. He directly came from his official duties to the place of occurrence. Thus, the presence of these two witnesses becomes doubtful. Their presence also becomes doubtful in view of the fact that it is not mentioned in the F.I.R. that the victim was assaulted from butt of the country-made pistol. It is not there in the F.I.R. that to rescue himself, the victim went towards the Patri of the road. It is also not there in the F.I.R. that the victim fell at the Gitri. The F.I.R. does not disclose that the assault was made by fire. The mere allegation is kattesemaare. There is nothing in the F.I.R. that the kattas were fired. In view of the injuries of the victim, these wordings appeared to be deliberate because there is only one firearm injury. Two fires are said to have been made. Both fires are said to have hit the victim, but the fire-arm injury is only one. Besides it, there are two lacerated wounds and number of abrasions and contusions. These injuries are not possible to have been caused by firearm. Therefore, it appears deliberate. It was not written in the F.I.R. that the accused persons made fires by katta and assaulted by katta.

As stated above, there is nothing in the F.I.R. how the injuries Nos. 2 to 6 have been caused. These are not possible to have been caused by fire-arm. There is no explanation of these injuries in the F.I.R. Then in the Court, the prosecution wanted to explain that the victim fell at gitri. By injury No. 1 which is an injury hit through and through, a man will immediately fall down and by a single fall lacerated wound at the right side, then again lacerated wound at the left side of the forehead and several abraded contusions at the left side of upper mid chest and then abraded contusions at the right side of the face is not possible.

Even if for the sake of arguments, it is taken that these injuries are possible by fall, and then also the fracture of 5th to 8th ribs is not possible by mere fall. It is to be remembered that the fire is said to have been made while two persons were catching. If after fire, the two persons catching leave the victim, and then also the fall cannot be with such force to cause fracture of 4th to 8th ribs. The doctor has also stated that these fractures are not possible by mere fall. The fractures are possible if the body is crushed under some vehicle. Thus, it appears that injury No. 5 along with the fractures has been caused by some heavy blunt object. Nobody could explain how these injuries were caused.

The medical evidence is totally in contradiction with the ocular testimony of the witnesses. The witness Ram Siddh is said to be with the victim from the time of exhortation to the running of the accused persons. At least, he should have seen how these injuries were caused and if he also had no explanation to offer for these injuries, it can be safely said that nobody did see the occurrence.

In view of the above facts that the oral evidence is totally contradictory with the medical evidence, both could not be reconciled, it is to be held that the witnesses did not see the occurrence. This finding is also corroborated from the fact that, although Bharat was known from before as the driver of other assailants, but he was not named in the F.I.R. It Is also not there that one assailant was the driver of Deep Chandra. His name has been introduced subsequently. If the witnesses are not prepared to spare even the driver of the assailant, why they will spare the main accused, who were highly inimical to them. The other developments as made in the case, particularly the presence of light, torches, falling on gitti also belie the presence of the witnesses on the spot. The case of the prosecution is of two fires that too after catching hold but the fire-arm injury is only one. At least. One person said to have fired has falsely been implicated. It is also not known when two persons went to kill the victim, what was the necessity of catching hold. These two persons could have immediately fired without endangering the other assailants to be inflicted of injuries in the process of catching hold. When they have already gone to kill, what was the necessity for Deep Chandra to have exhorted. There is nothing in the F.I.R. and the statements of the witnesses what was the weapon with other accused persons. No person will go without any weapon. Weapon is necessary at least to defend, if there is counter attack. These facts show false Implication of innocent persons. It appears that in the night somebody fired at the victim and when he fell down, they gave some blows at the chest by heavy object, which caused the death of the victim.

The learned Sessions Judge has taken a very'' considerate and just view. It is to be remembered that this is a Government appeal and the finding of the learned Sessions Judge is to be set aside only when it is perverse and reasonably such a view could not have been taken by a prudent man as has been taken by the learned Sessions Judge. If two views are possible and the view taken by the learned Sessions Judge may also be correct, then also his finding cannot be disturbed in appeal.

In view of the above discussions, we do not find any incorrectness in the finding recorded by the learned Sessions Judge, rather on facts, the judgment and findings recorded by the learned Sessions Judge is sound enough and doesn''t call for any interference.

The appeal deserves to be dismissed and is accordingly hereby dismissed.