State of U.P. vs Ram Krishna alias Ram Kishan and Another

M.C. Jain, J.—The State has come up in appeal against the judgment and order dated 1.5.1980 passed by Sri P. C. Saxena, the Sessions Judge, Pilibhit in S.T. No. A-78 of 1979 acquitting the two accused-Respondents Ram Krishna alias Ram Kishan and Ram Lal (brothers) of the charge of Section 302, I.P.C. and Section 302, I.P.C. read with Section 34, I.P.C.

The appeal was admitted on 1.12.1980 and bailable warrants were issued against accused-Respondents but the same could not be executed. Under order dated 2.9.1992, non-bailable warrants were again directed to be issued against them. But they could not be arrested and the Chief Judicial Magistrate, Pilibhit reported that both of them had disappeared after disposing of their movable and immovable property and were not at all available. Under the circumstances, we appointed Sri Apul Misra as amicus curiae to argue out the appeal on behalf of accused-Respondents.

We have heard Sri M. C. Joshi, learned A.G.A. on behalf of State in support of the appeal and Sri Apul Misra, amicus curiae for the accused-Respondents.

The incident took place on 11.11.1978 at about 9.00 a.m. in the fields of village Jaskaranpur, Police Station Bisalpur, district Pilibhit and the F.I.R. was lodged the same day at 10.15 a.m. by Ashwani Kumar P.W. 3 son of the deceased who claimed himself to be an eye-witness. Tilak Raj was the brother of the deceased Bodh Raj who had taken some land on lease from Gram Samaj in respect whereof a litigation was pending between Tilak Raj and accused-Respondents. Bodh Raj was doing pairvi for his brother in that case and on account of this litigation the accused-Respondents allegedly bore enmity against him (Bodh Raj). Bodh Raj resided in village Bisalpur and had land in village Jaskaranpur. He had sown paddy crop in his said land which was ripe for harvesting at the time of occurrence. He with his elder son Ashwani Kumar P.W. 3 went to the village Jaskaranpur early in the morning at about 5.30 a.m. on the day of occurrence and reached there at about 6.30 a.m. Witnesses Suleman C.W. 1 and Jhabbu C.W. 2 were in his employment and were assisting him in the said harvesting. At about 9.15 a.m., Anil Kumar P.W. 5 younger son of the deceased had also come there with the newspaper of that day. Bodh Raj laid down on the Payal spread on the ground and busied himself browsing the newspaper. Suleman was sent to the village to bring scale and weights. Ashwani Kumar P.W. 3 and Jhabbu were in the neighbouring field. As per the prosecution case, the two accused suddenly appeared there. Ram Krishna alias Ram Kishan was armed with banka and Ram Lal had a gandasa. They started assaulting Bodh Raj with their respective weapons. The attack was so sudden and furious that Bodh Raj could not even get up and died at the spot in that very posture. Ashwani Kumar P.W. 3, Jhabbu, Rajiv Kumar P.W. 4 and Ram Murti of Bisalpur allegedly witnessed the incident. The reason of presence of Rajiv Kumar P.W. 4 and Ram Murti at the spot was said to be that they wanted to purchase some land in that village and Bodh Raj told them about the availability of some land. They had, therefore, come to him. When they were at some distance from the place of occurrence, they heard cries and consequently rushed to the place of occurrence. They witnessed the incident and recognised the assailants whom they knew from before. Suleman C.W. 1 was allegedly returning from the village. Though he did not see the actual incident of murder, but saw the accused running away from the side of the place of occurrence with the weapons of assault in their hands. This was briefly the prosecution case.

On the lodging of the F.I.R., investigation was taken up as usual by S.O. Devendra Swarup Gautam P.W. 7. Reaching the spot, he, after completion of formalities, sent the dead body for post-mortem and took other steps related to the investigation which are not required to be related in detail.

Post-mortem over the dead body of the deceased was conducted by Dr. R. C. Maheshwari P.W. 1 on 12.11.1978 at 10.15 a.m. The deceased was about 50 years of age and about one day had passed since he died.

Three incised wounds were found on his person as ante-mortem injuries. One was in an area of 19 cms. x 5 cms. x bone cut extending from middle of jaw upto back of neck just below the left ear. Second one was of the dimension of 8 cm. x 2 cm. x muscle deep on the left neck about 1 cm. below the Injury No. 1 and the third one was of the dimension of 3 cm. x 0.5 cm. x muscle deep on the left neck about 2 cm. below Injury No. 2.

Neck vein had been cut under the Injury No. 1 and the death had occurred as a result of shock and haemorrhage owing to the injuries sustained by the deceased.

Leaving aside the evidence related to the post-mortem, investigation and of other formal nature, the material witnesses were Ashwani Kumar P.W. 3, Rajiv Kumar P.W. 4 and Anil Kumar P.W. 5. In addition, as stated earlier, Suleman and Jhabbu were examined as C.W. 1 and C.W. 2 respectively.

The defence was of denial. It was, however, admitted by the accused that a case between them and Tilak Raj was fought in the court of Commissioner. They pleaded ignorance, if any appeal against the order of Commissioner was pending before the Board of Revenue. They contended that they were in possession of the land which was in dispute in that case. They did not know whether Bodh Raj was doing pairvi in that case for Tilak Raj. They also pleaded ignorance whether Bodh Raj and Tilak Raj were brothers.

Since the prosecution evidence did not commend itself to the trial Judge, he recorded acquittal. The submission of the learned A.G.A. is that it was a broad-day light murder and despite being trustworthy eye-witness account, the trial Judge fell in error in acquitting the accused persons. On the other, the argument of the learned amicus curiae is that the prosecution evidence, judged in the light of relevant circumstances, suffered from inherent improbabilities with conflict in ocular account and medical evidence. He, therefore, supported the finding of acquittal.

We have carefully examined the evidence on record and have bestowed thoughtful consideration to the reasons adopted by the trial Judge in coming to the conclusion in favour of the accused persons. We find that the finding of acquittal is perfectly sustainable and is not capable of being interfered with in appeal. We wish to indicate the solid grounds justifying the acquittal.

There was no quick igniting cause for the murder of the deceased by the accused persons. Ashwani Kumar P.W. 3 admitted in his cross-examination that there was no litigation pending between the deceased and the accused-Respondents and that the litigation actually was pending between his uncle Tilak Raj and the accused. It also came to be admitted by him that the ''patta'' from the Gram Samaj had also been taken in the name of Tilak Raj. It was also admitted by him that the appeal was filed in the name of his uncle. Therefore, the allegation that there was litigation between the deceased and the accused on the date of incident was not at all substantiated. Exts. Ka-15 and Ka-16 further showed that the case between the accused and Tilak Raj was pending before the Board of Revenue and not in the High Court as deposed by him. It clearly indicated as if the informant had no personal knowledge about the said litigation. Further, the accused-persons had won at the lower level and as such there could hardly be any reason for them to be aggrieved. Motive put forth by the prosecution side being not established, a very cautious scrutiny was required of the eye-witness account.

We agree with the trial Judge that the presence of the so-called eye-witnesses, out of whom two were the own sons of the deceased, was most doubtful. It came in the evidence that paddy crop had been harvested uptill 7.00 p.m. on the day immediately preceding the day of occurrence. The evidence was that thereafter the deceased went to his house at Bisalpur and left for the field the next morning at 5.30 a.m. The deceased and his son Ashwani Kumar P.W. 3 had allegedly come from Bisalpur together on cycle. No cycle of the deceased was, however, recovered by the Investigating Officer from the place of incident. It was improbable that when father and son had to reach back the field at 5 or 6 a.m. the following day, they would have gone back to Bisalpur at about 7.00 p.m., the previous day of the incident. The greater possibility was that the deceased did not come back to his house during the night and stayed either at the field itself or in the village Jaskaranpur so as to reach the fields early in the next morning. If he stayed on the field during the night, the possibility could not be ruled out that murder was committed during night when none could see and recognise the assailant(s) and when in the morning the murder was detected, it was thought to implicate the accused merely on suspicion because of the litigation pending between them and the brother of the deceased, the brother of the deceased having lost at the lower level. When the Investigating Officer had arrived at the spot, Tilak Raj was present. The harvested paddy had been entrusted to him. This being so, the possibility of false implication of the accused on the instance of Tilak Raj is heightened.

The presence of Ashwani Kumar P.W. 3 at the time of incident is belied by the description of ''banka'' given by him which was allegedly used by the accused Ram Krishna alias Ram Kishan. He also stated that ''banka'' had been used in a piercing way. The deceased did not sustain any piercing wound. He only sustained three incised wounds, meaning thereby that no punctured wound had been sustained by him.

The reason given by Anil Kumar P.W. 5 for his presence at the spot was also not plausible. He was a student of first year of intermediate. The day of incident was not a holiday. Therefore, ordinarily he would have gone to his college. The reason given by him for undertaking journey to Jaskaranpur was that he came to deliver the newspaper and also to ask his father to go to his house to take his meals. If the deceased and Ashwani Kumar P.W. 3 came from the house in the early morning on that very day without bringing meals for them, they must have gone to their house sometime later in the day for lunch. Then there was no necessity for Anil Kumar P.W. 5 to have come to remind them to go to the house for meals. The deceased could have gone through the newspaper at the house itself. There was hardly any necessity or occasion for Anil Kumar to travel all the distance of Jaskaranpur missing his classes simply to deliver the newspaper to the deceased. The trial Judge rightly inferred that the theory of newspaper was introduced simply to make the presence of Anil Kumar to appear a little more probable and in an attempt to show that the incident had taken place in day light after the break of the day as alleged.

The statement of Anil Kumar was that soon after the arrival of accused near the deceased, Ram Krishna alias Ram Kishan assaulted the latter with ''banka'' and the deceased at once cried, but thereafter the two accused made assault again with their respective weapons at about same place where the ''banka'' had caused the first wound. That would suggest that the deceased had received two ''banka'' and one ''gandasa'' injuries. In his cross-examination, however, he made a different statement that Ram Krishna alias Ram Kishan gave the first blow and thereafter Ram Lal gave a ''gandasa'' blow and further that soon after when Ram Krishna alias Ram Kishan fled from the place of the occurrence, Ram Lal gave another blow meaning thereby that one ''banka'' and two ''gandasa'' injuries had been given to the deceased.

In our opinion, Ashwani Kumar P.W. 3 and Anil Kumar P.W. 5 were rightly disbelieved by the trial Judge.

The testimony of Rajiv Kumar P.W. 4 also could not inspire confidence. Actually he had no business to be present at the time of the incident. He tried to say that he wanted to purchase some land in the said village and in respect of the said purchase his talks were going on with one Ashraf who had been introduced by the deceased. Therefore, on the day of occurrence, he was first going to the deceased before finalising the deal with Ashraf. In the cross-examination, he stated that he wanted to purchase about one or two acres of land which was being sold at the rate of Rs. 6,000 to Rs. 7,000 per acre, but he had only a sum of Rs. 1,000 or Rs. 2,000 as spare money with him. When he was further questioned that it was not possible for him to purchase any land, he tried to wriggle out by saying that, in fact, the amount for the purchase was to be paid by Ram Murti and he was simply to look after the cultivation of the said land. He had a small biscuit shop at Bisalpur and had no experience of cultivation. It also came in the evidence that after this incident, no land was purchased by him or by Ram Murti in this village. He was, therefore, a got up witness.

Jhabbu, C.W. 2 stated that the murder did not take place in his presence. Suleman C.W. 1 also so stated, but simultaneously made a faint attempt to connect the accused-Respondents with this crime by saying that he saw them running away from the place of occurrence when he was returning from the village. According to him, he could see only the back of the assailants who were fleeing away from the place of occurrence. He tried to say that their faces were some time visible when they turned towards their back side. There could hardly be any reason or occasion for them to look behind when no one was chasing them.

The result is that the testimony of witnesses Ashwani Kumar P.W. 3, Rajiv Kumar P.W. 4 and Anil Kumar P.W. 5 could not be relied upon. The evidence of Suleman C.W. 1 and Jhabbu C.W. 2 was equally worthless to prove the accused-Respondents to be the assailants.

There is yet another sterling feature emerging from the medical evidence which strikes at the bottom of the prosecution case. The three incised wounds sustained by the deceased were on the left side in close proximity of one another. It appears that all the three injuries had been caused by the same weapon in quick succession. The doctor stated that three injuries could be caused by three assaults made by the same weapon. The victim was attacked all of a sudden off the guard. It does not have the attraction of logic that two assailants would and could cause three incised wounds to the deceased by the two different types of weapons in close proximity of each other. In fact, the seat and nature of the injuries sustained by the deceased are consistent with the hypothesis that he was attacked all of a sudden with three blows struck in quick succession leaving no time to the deceased even to stand or to change side to ward off the blows. It could be because that he was asleep in the night when he was attacked.

For the discussion made hereinabove, agreeing with the finding of acquittal recorded by the trial Judge, we dismiss this appeal.

Sri Apul Mishra amicus curiae, who has argued the appeal for the accused-Respondents, shall get Rs. 1,000 (Rupees one thousand only) as his fee.

A copy of this judgment shall be sent to the lower court for incorporating necessary entries in relevant Register and reporting compliance to this Court within two months.