State of U.P. vs Hira Lal and Another

R.C. Deepak, J.—The State of U.P., after seeking the permission, has filed this Government appeal against the judgment and order dated 28.2.1984, passed by Sri V. P. Kalra, learned Sessions Judge, Non-metropolitan Area, Kanpur in Sessions Trial No. 273 of 1982 u/s 302/34, I.P.C., Police Station Sikandra, district Kanpur Dehat whereby he acquitted the accused Hira Lal and Ramesh.

The brief facts of the case are that Ananti Kori and Smt. Nanhi are said to be a married couple. Sita Ram, Lala Ram and Gaya Prasad are their sons. Ananti Kori had already died. Smt. Nanhi remarried Ram Kishen resident of Sikandra, district Kanpur Dehat. She came to Ram Kishen alongwith her three minor sons. Ram Kishen brought them up and also got their marriages solemnized. It is further disclosed that before re-marrying Smt. Nanhi, Ram Kishen had married two women, that his first wife died issue-less, but he procured two daughters named Ganga and Sukh Dei from his second wife. Both of them are married. Sukh Dei is living at her parental house with her husband Hira Lal for the past 8/9 years. A daughter named Mangal Dei was born out of the wedlock of Ram Kishen and Smt. Nanhi, who is married to Chhotey Lal. Six/seven years ago, Ram Kishen had sold his 1-1/2 beegha land. Thereafter, he had executed a Will deed of his entire property in the name of his above three sons. The execution of this Will deed annoyed Hira Lal and his family members and they developed enmity against them. He also put pressure upon Ram Kishen to give some share of his property to him, but he did not agree, that at the time of the marriage of Sita Ram, Hira Lal and his son abused and threatened Ram Kishen of dire consequences in case some share would not be given to them. It is alleged that in the intervening night of 8/9.7.1981, Hira Lal with kulhari and his son Ramesh with kanta made the assault upon Ram Kishen, who sustained injuries. On alarm, the informant and others reached there. They tried to apprehend them, but they escaped from there. Ram Kishen was managed to carry to the hospital wherein he died.

Regarding the above occurrence, Sita Ram lodged the first information report (Ext. Ka-1) registered as Case Crime No. 121 of 1981 u/s 302, I.P.C. at Police Station Sikandra, district Kanpur Dehat against Hira Lal and Ramesh. The investigation into the case was carried by Sub-Inspector Ram Swaroop (P.W. 10). He visited the place of occurrence, took the dead body into his possession, prepared the inquest (Ext. Ka-8) on the dead body. He sent the dead body in sealed cover for post-mortem examination. He prepared the site plan (Ext. Ka-14), recorded the statements of the witnesses, effected the arrest of the accused and also recovered a dharia, the weapon of offence at the pointing of Ramesh. Dr. D. Bhatnagar (P.W. 5) conducted the post-mortem on the dead body of the deceased and he found that the deceased was an old man of 65 years and of average good muscular body. His death had taken place about 1-1/2 days earlier. Eyes were closed. Mouth was open. Tongue was protruding. Rigor mortis had passed off from upper limbs and was present in the lower limbs. Post-mortem staining was present. Abdomen was distended. He found only one ante-mortem injury of 22 cm. x 5 cm. across the right side of face extending from right side of nose behind the right year to the occipital region which was bone deep.

On internal examination, the above-named Medical Officer found that right temporal and occipital bone were fractured under the ante-mortem injury noted above. Membrane were congested below injury No. 1. Brain was liquified. There was fracture at the base below injury No. 1. First two cervical vertebrae was fractured under injury No. 1. Spinal cord was not opened and no abnormality was found in the thorax, pleura, larynx, lungs, pericardium. Heart was empty and weighed 150 grams. There was also no abnormality in the vessels or in the abdomen. Buccle cavity on the right side and pharynx were incised under injury No. 1. Four oz semi digested food was found present in the abdomen. Large and small intestines were half full with gases. Gall bladder was normal and weighed 112 grams and was half full. No abnormality was found in the pancreas and spleen as also kidneys and organs of generation. The bladder was half full.

In the opinion of Dr. Bhatnagar, death was due to shock and haemorrhage due to ante-mortem injury noted by him. The post-mortem examination report is Ext. Ka-2.

After the completion of the investigation, the Investigating Officer submitted the charge-sheet (Ext. Ka-19) against the accused.

The charges were framed against the accused, who pleaded not guilty and claimed to be tried.

To prove its case, the prosecution examined as many as 10 witnesses. Sita Ram (P.W. 1), Smt. Nanhi (P.W. 2), Lala Ram (P.W. 4) and Sukh Lal (P.W. 6) are the witnesses of fact and the remaining are formal ones.

The accused did examine no witness in defence.

Considering the evidence on record and the circumstances, the trial court passed the order of acquittal against which the present Government appeal has been filed already referred-to-above.

Heard Sri P. S. Pundeer, learned State counsel for the State-Appellant, Sri R. K. Sachan, learned Counsel for the accused-Respondents and perused the record.

It has vehemently been argued by the learned State counsel that there is evidence on record and the prevailing circumstances against the accused-Respondents to have committed the murder of the deceased Ram Kishen, but the trial court failed to appreciate the cognizable evidence and passed the order of acquittal. The order of acquittal is against the weight of evidence, therefore, the order of acquittal be set aside and the accused-Respondents may be convicted for an offence punishable u/s 302, I.P.C.

On the other hand, learned Counsel for the accused-Respondents has strongly contradicted the arguments of the learned Counsel for the State and argued that there is no evidence at all to indicate that the accused-Respondents committed the murder of Ram Kishen. The trial court has thoroughly gone through the evidence on record and the circumstance and reached at a right conclusion that there is no evidence to convict the accused-Respondents for the commission of the murder of Ram Kishen. The order of acquittal is justified and convincing and no interference in the same is warranted.

Sita Ram (P.W. 1) and Lala Ram (P.W. 4) are real brothers. Smt. Nanhi is their mother. The motive suggested for the commission of the murder of Ram Kishen is that he had executed a Will deed of his entire property in favour of Sita Ram, Lala Ram and Gaya Prasad has not been disputed. The execution of this Will deed annoyed the accused-Respondents to eliminate Ram Kishen, is the only motive shown for his elimination, but a question arises whether by eliminating Ram Kishen the accused-Respondents would be entitled to inherit his property when he had already disposed of the same by way of a Will deed in favour of his sons, specially when the Will deed was not cancelled. Therefore, this motive appears to be very weak.

Now to examine whether any of the witnesses have actually seen the occurrence or not? The prosecution witnesses Sita Ram and Lala Ram are real brothers and Smt. Nanhi is their mother and the widow of Ram Kishen. Their statements indicate that they have seen the accused standing nearby the cot of the deceased with kulhari and dharia, but none appears to have seen making any assault. The statement of Smt. Nanhi discloses that there was cloudy night and in the cloudy night the visibility of the moon/the only source of light was not clear. This fact has also not been denied that the accused-Respondents were not residing in the house where the deceased was. Therefore, in case their presence was seen there, it may not be presumed that they have made assault upon the deceased, specially when there is solitary incised wound on his body and it is alleged that these two accused-Respondents were armed with kulhari and dharia and had made assault upon him. The prosecution has allegedly recovered a dharia at the pointing of accused-Respondent Ramesh. Daya Ram (P.W. 8) and Ram Babu (P.W. 7) are the witnesses of recovery, but they have turned hostile, therefore, there is no evidence on record to suggest that a dharia was recovered at his pointing. Not only this, in the first information report, a kanta has shown in the hand of accused-Respondent Ramesh, but a dharia is said to have been recovered. It has come up in the evidence that the kanta and dharia are different weapons. Smt. Nanhi has not specified that Ramesh was holding a dharia, but she has stated to the effect that a long iron weapon was in his hand. This fact is very relevant to mention here that in the first information report it has been alleged that the deceased was assaulted with the weapon, but in the evidence it has been shown that the accused-Respondents were standing near the cot of the deceased and Ramesh told that the work was finished, but this portion that Ramesh told that "work was done" has not been mentioned in the first information report. The prosecution witness Sukh Lal (P.W. 6) reached the place of occurrence and he saw that there was crowd. Ram Kishen was lying on his cot and he did not see even the presence of the accused-Respondents there. There is no other evidence to indicate that accused-Respondents caused injury to the victim.

The trial court appears to have examined the evidence on record and the prevailing circumstances of the case while passing the order of acquittal. The order of trial court appears to be justified and convincing and we are of the view that no interference in the same is warranted.

The present Government appeal lacks merit and is liable to be dismissed and the same is dismissed.

The personal and surety bonds of the accused-Respondents are hereby cancelled and their sureties are discharged.

The trial court''s record be sent back.