State of U.P. vs Man Singh and Others

Arun Kumar, J.—These appeals are directed against a Division Bench judgmentdated 9.1.1992 of the Allahabad High Court allowing the appealsagainst the judgment of conviction passed by the IVth AdditionalSessions judge, Mainpuri, Uttar Pradesh. The High Court acquittedall the four accused who had been found guilty by the trial Court. Asa matter of fact the trial Court convicted six accused. All of them hadappealed to the High Court. During the pendency of the appeals, twoaccused viz., Raj Nath and Mansa Ram died and the remaining fouraccused were acquitted by the High Court. Hence, these appeals bythe State against the judgment of acquittal passed by the High Court.

Briefly, the facts are that on the morning of 6th January, 1978immediately after sunrise i.e. at about 7.00 a.m. Raja Ram left hishouse for his fields to start the diesel engine of his pumping set inorder to irrigate his field. He required help of at least three others for the purpose of starting the engine. He called his brother Kishan Lalto follow him alongwith two other persons so that the engine could bestarted. It has come in evidence that starting the diesel engine duringthe winter month of January requires quite an effort. Daya Ram(P.W.1), Kishan Lal (P.W.2) and Dev Dutt followed Raja Ram. Theywere about 15-20 paces behind Raja Ram. As Raja Ram, wasproceeding towards his field he passed by two "Noonars" (Tilas). Aswho died during trial) alongwith Dhyan Singh, Man Singh, MansaRam, Raj Nath, Ram, Naresh and Ram Saneshi suddenly emergedfrom behind the Noonars (tills i.e. big mounds of earth). They wereall armed with weapons; three had country made pistols while theothers had guns with them. Dhyan Singh accused exhorted hiscompanions "Sathiyo Raja Ram Sala aaj nekal na pai". Raja Ramwho was some paces ahead of the accused took to heels. Theaccused gave him a chase and started firing shots at him with theirfire-arms. Raja Ram on receiving gun shots fell down in the field ofone Balwant. When the accused persons reached near the body ofRaja Ram, they fired some shots in the air and some at Raja Ram.They also shouted "Bara Bahadur banta tha, aaj mar paya hai." Thefield of Balwant was by the said of a river which had knee deep water.The accused dragged the body of the Raja Ram to the river. Thebody of the deceased was tied with a rope and "tehmad" and wasdragged into the river where river was deep. The body of Raja Ramwas thrown into the river. Before throwing the body into the river, theaccused had severed the head of Raja Ram from the body.Thereafter all the accused went away.

Daya Ram (P.W.1), Kishan Lal (P.W.2) and Dev Dutt werestealthily following the accused. On the basis of the trial of blood theyreached the place wherefrom the tied body of Raja Ram was throwninto the river. They took out the headless body of Raja Ram from theriver. Raja Ram had his name tatted over his had which had beenerased. Daya Ram and Dev Dutt stayed there to keep a watch overthe dead body while Kishan Lal left for Police Station, Alas to make areport. Kishan Lal lodged the F.I.R. at the Police Station, andthereafter returned to the place where the dead body was lying.

The motive behind the murder is alleged to be that accusedSadho Singh (since deceased) and Dhyan Singh alongwith otherswere being prosecuted in a case u/s 307 I.P.C. in respectof an assault on one Ram Prakash. Daya Ram (P.W.1) in thepresent case was the prosecution witness in the said case. About amonth prior to the incident of murder of Raja Ram, all the accused ofthe present case had gone to the house of Daya Ram where in thepresence of Raja Ram (deceased), Kishan Lal and Dev Dutt, theyasked Daya Ram not to be a witness in the case u/s 307IPC and asked him to file an affidavit that no such incident took placein his presence. Daya Ram repelled the suggestion and replied in thenegative. Raja Ram (deceased) uttered "Hum Thok Kar Gavahidilwayengai". The accused persons then went away holding out athreat to Raja Ram.

Besides examining the two eye-witnesses viz., Daya Ram(P.W.1) and Kishan Lal (P.W.2), the prosecution examined Dr.Devendra Prasad Misra (P.W.3) who had conducted post-mortemexamination on the body of the deceased on 8th January, 1978. Theremaining witnesses examined by the prosecution were the officialwitnesses. The Doctor opined that the death took place two daysprior to the examination. He gave details of various ante-mortem andpost mortem injuries found on the body of the deceased. Apart fromother details he deposed that the head and neck were missing fromthe body and an abrasion 6" x 4" cms was found on right arm frontmiddle. According to the doctor the death was due to shock andhaemorrhage on account of ante-mortem injuries.

Daya Ram (P.W.1) and Kishan Lal (P.W.2) are the eye-witnessesof the incident. They were persons who were followingRaja Ram along with one Dev Dutt in order to help Raja Ram to startthe diesel engine attached to the pump-set for purposes of irrigatingthe fields. The two eye-witnesses gave details of the incident as theywere following Raja Ram (deceased) 15-20 paces behind him.According to the eye-witnesses they had seen all the accusedsuddenly emerging from behind the "Noonars" (Tilas) armed withweapons, who started chasing Raja Ram firing gun shots at him dueto which he fell down in the field of one Balwant wherefrom the bodyof Raja Ram was dragged by the accused to the river. Beforethrowing the dead body into the river, the accused had severed thehead from the body and tied the body with rope and "tahmad". Afterthrowing the body into the river, the accused went away. The twoeye-witnesses alongwith Dev Dutt thereafter took the dead body ofRaja Ram out of the river. Kishan Lal (P.W.2) went the PoliceStation to file FIR while the other two stayed back to keep a watch onthe dead body. After lodging the FIR, the investigation started.

The accused persons were charged with offences underSections 148, 302/149 and 201 IPC. The accused persons pleadednot guilty. The trial took place. None of the accused examined anywitness in defence. The trial Court after examining the entireevidence on record, by a well considered judgment, came to theconclusion that all the accused persons were guilty of the offencesthey were charged with. It convicted all of them of the offences theywere charged with. Each of them was sentenced to two years'rigorous imprisonment for offence u/s 148 IPC and fouryears' rigorous imprisonment for offence u/s 201 IPC. For the offence u/s 302 read with 149 IPC each of them wassentenced to life imprisonment. The sentences were to runconcurrently.

All the six accused persons appealed to the High Court. TheHigh Court allowed the appeals and acquitted all of them. The HighCourt has noticed in its judgment that all the accused persons wereon bail, they were ordered to be set free.

After reciting the facts of the case and after noting thearguments advanced by the counsel for the appellants, the HighCourt had only this to say:

"We considered seriously over the plea of theappellants. Keeping in view all the circumstances the presence of both thealleged eyewitnesses at the time of incident isappearing doubtful to us on a/c of which theirevidence cannot be relied upon beyondreasonable doubt.

In our opinion the prosecution has notsucceeded in proving its case against theappellants beyond reasonable doubt due towhich their conviction cannot be uphold."

Strangely in a murder case involving seven accused persons,all having been convicted by the trial court, this is the onlycontribution of the High Court. From the observations of the HighCourt, it is clear that the High Court did not accept the evidence of theeye-witnesses. The very presence of the eye-witnesses at the timeof occurrence was considered doubtful by the High Court. This doubtwhich appears to have entered the mind of the High Court is basedon the argument advanced on behalf of the accused persons thatthere was fog at the time of occurrence and due to fog the eye-witnesseswho were said to be at a distance from the deceasedcould not have seen what was actually happening.

In our view, this factor which seems to have prevailed with theHigh Court in acquitting the accused persons was totally extraneous,being based on conjectures. It is rather contrary to the evidence onrecord. Therefore, in our view, the decision of the High Court cannotbe sustained. The theory of fog was introduced before the HighCourt for the first time. It is not based on any evidence. In any casethe said theory could not be introduced because the presence of fogleading to the vision of the eye-witnesses being blurred was neverput to the eye-witnesses. The eye-witnesses were never asked in thecross-examination as to whether there was fog at the time of theincident, and if so, did it construct the eye-witnesses from watchingthe occurrence. When this aspect was never put to the witnesses, itcannot be said on the basis of mere imagination that the vision of thewitnesses was obstructed by fog and they could not have seen theoccurrence. The High Court completely erred in accepting this anddoubting the version of eye-witnesses for this reason alone. Thebasic fact about the presence of fog leading to blurring the vision ofthe eye-witnesses without being put to witness during their cross-examinationcould not have been taken into consideration. It was thewitnesses who were in best position to say whether there was fog atthe relevant time or not and whether the fog, if present, was enoughto prevent the eye-witnesses from watching the scene of occurrence.The High Court was not justified in basing its decision on the theoryof presence of fog. On the other hand it is to be seen that both theeye witnesses gave detailed account of the incident. There is hardlyany discrepancy in the version of the incident given by the twowitnesses. Without actually witnessing the incident the witnessescould not have given such details of the occurrence. In our view theeye witness account of the occurrence inspires confidence and thereis no reason to cast any doubt on the same. It is a case of brutalmurder of a person by a gang of seven persons. The details of themurder available on record in the shape of eye witness account of theincident, medical evidence, mutilated body of the accused with neckand head severed, leave no doubt about the involvement of theaccused-respondents in the crime.

The High Court failed to appreciate that the dead body of RajaRam was taken out from the river by Daya Ram, Kishan Lal and DevDutt almost immediately after the accused persons had left the sceneafter throwing the dead body into the river. The immediate recoveryof the dead body by these persons completely establishes theirpresence at the scene of occurrence and the fact that they hadwitnessed the entire incident. When the dead body was immersed inwater and was lying in the river bed, it would have been impossible totake it out immediately unless the persons who took out the deadbody had seen the dead body being thrown into the river. Theinstantaneous recovery of the dead body of Raja Ram from the riverby the eye-witnesses, including Dev Dutt shows that they had seenthe spot where the dead body had been thrown into the river and for the reasons alone, they could have it out, otherwise locating thedead body in the river bed would have been quite an effort and timeconsuming. This aspect completely establishes the presence of theeye-witnesses on the scene of occurrence and the fact that they hadseen the occurrence.

Another important fact to be kept in view is that the accusedpersons were seven in number and they were all armed with gunsand pistols whereas the three viz., Daya Ram, Kishan Lal and DevDutt, belonging to the victims party, were totally unarmed. This wasthe reason that they had to conceal themselves and they could notcome out in the open before the accused persons in order to makeany effort to save the deceased. Coming out in the open would havebeen fatal. The conduct of these three was quite natural. Normallynobody would venture or have the courage to go near the accusedpersons who were armed with fire-armed and who were firing gunshots at their target. In any one would have tried, he would have metthe same fate. They must have been anxious to take the dead bodyof the deceased with them and for that reason they hid themselves inthe Arhar fields and remained there till the accused left the place ofoccurrence to take out the dead body. The trial court after closelyexamining the evidence of Daya Ram (P.W.1) and Kishan Lal (P.W.2)noted that both were consistent in their version of the occurrence andthere was no material discrepancy in their statements. It found thatevidence of the two eye-witnesses was genuine.

For all these reasons we are unable to sustain the judgment ofthe High Court which is under appeal. Accordingly the same is setaside. The judgment of the trial Court is upheld. We uphold theconviction of the accused persons and the sentence imposed onthem by the trial court. We are informed that out of the six accusedpersons, two died during the pendency of appeal before the HighCourt, the remaining accused persons be taken in custody to undergothe sentence as awarded by the trial Court.

The appeals are allowed accordingly.