State of U.P. vs Shyam Sunder and Others

S.K. Agarwal and R.S. Tripathi, JJ.—The impugned Government Appeal was earlier dismissed by a Bench of this Court. Against that order of dismissal the State preferred an appeal before the Apex Court and the Apex Court remanded the case back to this Court for the reason that the judgment was cryptic as it had not discussed the evidence on record at all. This is how the present Government Appeal again came up before us for hearing.

The Respondents in this appeal were acquitted by the trial court for the charges under Sections 302/34 and 323/34, I.P.C. by a judgment dated 1.10.1980.

The brief facts of the case are that Sita Ram was working as a servant with Rama Kant, the informant. In the morning at about 6.00 a.m. on 12.2.1979, Sita Ram went to the informant''s field for ploughing it. While he was busy in doing so, the four Respondents came there and asked him to join them as their servant. Sita Ram curtly declined their offer. He was threatened with dire consequences. He was told that his legs and hands will be broken if he did not accept their offer. Sita Ram ran away abandoning the job at the field to the house of the informant. He told all these facts to deceased Ram Dayal, father of Rama Kant, who advised him to go and lodge a report. According to his advice, Sita Ram proceeded to the police station and lodged a report which is Exhibit Ka-6. This report was lodged at about 11.30 a.m. on 12.2.1979. At about 4.00 or 4.15 p.m. on the same day when the informant along with his father Ram Dayal came to the market of Kauriya, they were accosted by these Respondents. Abuses were first hurled. Assault followed upon the informant and the deceased with lathis immediately thereafter. The heart burn was caused by the report lodged by Sita Ram, the servant, against them. On the alarm raised by the informant and the deceased Sita Ram, Shri Pal, Anil, Kalka Prasad and Satya Narain arrived at the scene of occurrence. When they tried to desist the Respondents from assaulting the said two persons, one of these Respondents also turned the heat on them and started belabouring Shri Pal and Ors. As a consequence Rama Kant, Shri Pal and Anil sustained injuries. Ram Dayal lost his life. Shri Pal and Anil were said to have wielded their lathis in defence of their person. It is further stressed that Respondent Shyam Sunder struck a lathi blow on the head of his fallen father and thereafter the assailants took to their heels. They were chased and at 4-5 steps Shyam Sunder was allegedly apprehended by the informant and his companions. Bloodstained lathi was recovered from his possession. He was tied. The dead body was brought to the house of the deceased on a cot. The accused was also brought there in the same condition. It is alleged that the deceased was being taken to the hospital who died before reaching there. Therefore, the body was kept at the house. The hospital is adjacent to the house of the informant. A report was prepared by the informant which is Ext. Ka-4 on record. He took it to the police station and handed it over to the S.I. who passed it on to the Head Constable for registration of the case. In this manner the case came to be registered at 6.40 p.m. Check report, Ext. Ka-8, was prepared. A recovery memo, Ext. Ka-5, was also prepared for the bloodstained lathi of Respondent Shyam Sunder.

The investigation in this case was entrusted to P.W. 8 S. P. Singh. After recording the statement of the informant he came to the spot at about 10.00 p.m. It is alleged that he had taken the dead body into his custody. Besides it no other progress in the investigation was made until the next morning. The inquest memo was prepared in the morning and the body was despatched through two constables to the mortuary for post-mortem, thereafter.

The post-mortem examination on the body of deceased Ram Dayal was conducted by P.W. 2 Dr. M. M. Lal on 14.2.1979 at 12.00 noon and following injuries were noticed during the autopsy:

An abrasion 1/2 cm. x 1/2 cm. on the back of inner part of the right wrist.

An abrasion 1 cm. x 1/2 cm. on the upper part of back of left hand close to middle line on the inner side.

An abrasion 0.4 cm. x 0.3 cm. on the right side upper part of nose 1.4 cm. below inner angle of right eye.

A contusion 2.8 cm. x 1 cm. on the outer part of right eye (on bony part) with defused swelling of right upper lid.

A contused wound 2 cm. x 0.5 cm. x bone deep on the left side top of head (vault) back part 5 cm. from left ear.

A contused wound 1.7 cm. x 1 cm. x bone deep on the left side vault of head 1.5 cm. above injury No. 5.

The first three injuries were abrasions and injury No. 4 was a contusion on the outer part of right eye with defused swelling. Injuries No. 5 and 6, one of which was a lacerated wound and the other a contused wound, proved fatal. They had caused enormous damage to the skull. Virtually it was exposed into two parts. Bones were crushed to pieces on the right side of skull. In the opinion of the Medical Officer Injuries No. 5 and 6 on the skull were responsible for the death. They were sufficient in the ordinary course of nature to cause death.

The injuries of Rama Kant were subjected to medical examination on 14.2.1979 at about 11.00 a.m. The other two injured, Shri Pal and Anil, were examined on 13.2.1979 at 4.00 p.m. and 4.15 p.m. The Medical Officer, who examined their injuries, was P.W. 1 Dr. B. P. Pant. Their injury reports are Ext. Ka-15, Ka-1 and Ka-2.

The prosecution in support of its case examined P.W. 4 Rama Kant and P.W. 6 Shri Pal as eye-witnesses of the incident. Both of them are injured witnesses. P.W. 5 Sita Ram was examined to prove the motive. Rest of the witnesses are formal witnesses. P.W. 3 Constable Jagatvir Tyagi escorted the dead body of Ram Dayal to the mortuary. He was not cross-examined by the defence. P.W. 7 M. M. Khan is the second I.O., who submitted the charge-sheet. P.W. 8 S. P. Singh is the first I.O., who initially took up the investigation.

The defence has denied the entire story of the prosecution as false and fabricated. In response to question No. 12 Shyam Sunder has come out with his defence version and also explained the reason for their false implication in the case. According to him a Neem tree stood in front of the house of Rama Kant. Because of this Neem tree a truck laden with bricks could not pass through that road and, therefore, he had taken his truck from in front of the house of Rama Kant. Rama Kant stopped his truck and extended threat that he will see this accused. He demanded compensation, which was not paid. He also abused the driver but he managed to take the truck upto his door. The informant, therefore, became angry. When he went to lodge the report of the present incident at the police station, he was lodged in the lock-up and his report was not registered. Police was in league with Rama Kant. It was friendly to him. His brother Hulas was taking Chat in the market. Anil Kumar came to the shop of Babu. He abused Hulas and plied lathi on him. In the meantime Sita Ram, Rama Kant, Ram Dayal and Shri Pal also came there. Ram Dayal was armed with a kanta and the rest had lathis. They also participated in the assault. When Hulas raised alarm, he and Rameshwar came to save him. These above said persons also assaulted Rameshwar and him. They plied lathi in their self-defence. The people present in the market separated them. They ran away from the spot. Rama Kant and Ors. did not arrest him there. When he along with Brajlal went to the police station for lodging his report, police lodged him in the lock-up and Brajlal was turned out from there. He was not subjected to any medical examination by S.I. present at the police station, despite his injuries being recorded in the General Diary. He had bleeding injuries.

After scrutinising the entire evidence, as earlier discussed brought on record by the prosecution in support of its case, learned Additional Sessions Judge ultimately came to the conclusion that (a) the prosecution has failed to prove the motive, (b) the registration of the F.I.R. by Sita Ram was a doubtful fact. It was not registered at the time on which the impugned F.I.R. in this case was claimed to have been registered, and (c) he had accepted the case of right of private defence of their person fostered by the defence and accordingly acquitted them.

We have scrutinised the prosecution evidence very carefully, especially the evidence of P. Ws. 4, 5 and 6. So far as P.W. 4 is concerned, we find that he is a hard-core criminal. He had been in close affinity with the police and had appeared in number of cases for the concerned police station. He was harassing the village people and taking forcible possession of their properties with impugnity. There was hardly any person in the village who could dare to resist him or withstand his atrocities. The evidence in this regard is, in abundance, available to us from his own deposition and we have no reason to doubt this fact that he was using his muscle power and his proximity to the police to the hilt against his fellow villagers. From his evidence and from the statement of P.W. 5 Sita Ram and the I.O. P.W. 8 S. P. Singh, it is abundantly clear that this F.I.R. Ext. Ka-6 lodged by Sita Ram was lodged exclusively on his own and Raghuvir had no occasion to play any role or advised him to go and lodge the report. We have examined Ext. Ka-6 carefully and closely. It is apparent that the Respondents threatened him to leave the field and that from his own assertion in the F.I.R. it was revealed that he ran away leaving the yoked plough at the field and straightaway proceeded to the police station. Therefore, the version now brought forth before the Court by these two witnesses, P. Ws. 4 and 5, that Sita Ram first came to the house of the informant and on the advice of Ram Dayal went to the police station to lodge his report. This in our opinion is a complete concoction in order to create a motive against the Respondents for the murder in the case. The police had played a very mischievous role in the entire episode. It is apparent from the evidence of P. Ws. 4, 5, 6 and 8. According to this witness P.W. 4, Shyam Sunder struck a lathi blow upon Ram Dayal when his brother, his son Shri Pal and his servants Sita Ram and Kalka reached the spot. So according to the F.I.R. this Respondent Shyam Sunder allegedly had given only one lathi blow upon the head of the deceased. Subsequently, during the trial both these eye-witnesses have tried to wriggle out from the rigmarole in which they were placed by the post-mortem examination report. According to post-mortem examination report, injuries No. 5 and 6 were fatal and had caused extensive damage underneath these injuries. Each one of them individually could be responsible for the death. They could be the result of independent lathi blows. In order to reconcile this medical inconsistency, this witnesses has now started saying that Shyam Sunder gave two lathi blows upon the skull of the deceased. It had also come in their evidence that from the very outset he, Shri Pal, Anil Kumar and his father were possessing lathi and danda. This witness apparently has no sanctity for truth. He himself was accused in large number of cases but he did not have the courage to admit them. He had denied any knowledge of all these cases but the tenure of his denial leaves hardly any room for doubt so far as this Court is concerned that this witness had a criminal history. He was apparently helping the police station as a pocket witness. For the police he was virtually a pocket witness of the concerned police station. It is undisputedly clear from his evidence. From his evidence, it is also apparent to us that Sita Ram''s report could not be taken down at 11.30 a.m. as alleged by the prosecution. Initially in the examination-in-chief, this witness had stated that he tied the Respondent, Shyam Sunder, with a rope and brought him in that very condition to his house, but in cross-examination the witness had completely been shattered. So much so that he had to admit that Respondent Shyam Sunder was never tied with a rope. He was brought to the house by holding his hand and this accused never made any attempt to run away from the spot or to call his companions to free him from their clutches. He himself made no effort to free. All these facts and circumstances when read in their totality leave no room for doubt that this witness is not telling the truth. This witness concealed the true genesis of the marpit. They were possessing lathi from the very beginning is a factor that creates a doubt in our mind that they might themselves be the aggressors. Sita Ram''s statement that he was asked by the Respondents to leave the job of the informant and join them may be true and enraged by that when the Respondents again tried to pursuade Sita Ram they might have assaulted some of them as the defence suggests.

The medical examination of Rama Kant was conducted on 14.2.1979 at 11.00 a.m. There is absolutely no explanation about the delay when the dispensary was adjacent to the house of the informant. This witness was not sent for his medical examination for two days. The I.O. claimed that he reached the spot that very day at about 10.00 p.m. In the G.D. entry, Ext. Ka-9, there is no mention of his injuries whereas the injuries of Shyam Sunder accused were noted down therein. The I.O. claimed that his statement was recorded at the police station before he proceeded to the spot. We find it wholly false. Thus, we find it difficult to swallow that he was having any injuries at the time when he went to lodge his report at the police station. His injuries are superficial in nature. Injury No. 1 was a scabbed abrasion 1 cm. x 1 cm. on back of right forearm 2 cm. below right elbow, and the second injury was an abraded (scabbed) contusion 2 cm. x 1 cm. on outer part right leg 1.5 cm. above lateral melleous. Right leg with traumatic swelling. He was advised X-ray for injury No. 2 but conspicuously enough no radiological report of his was brought on record. His injury was, therefore, self-suffered.

So far as other two injured Shri Pal and Anil Kumar are concerned, they do not stand on any better footing. They were sent for medical examination nearly 24 hours after the occurrence i.e., on the next day. Both the injuries of Shri Pal were on left arm above the wrist joint and on the middle and lower part of the left arm. No colour of the contusion was noted down by the Medical Officer in order to fix the time. However, the opinion given by him about the duration is about one day. Anil Kumar was examined at 4.15 p.m. on 13.2.1979. He had a swelling 6 cm. x 5 cm. on the back of the palm and another swelling 6.5 cm. x 4 cm. on the back and outer side of the right forearm just above the right wrist joint. The duration was given as above one day and its nature was simple. The prosecution did not furnish any explanation for their delayed examination.

Shri Pal in his deposition u/s 161, Cr. P.C. did not state to the I.O. that he had plied his weapon in his self-defence. Anil Kumar was not examined during trial. In the circumstances, there is much room to conclude that these injuries could be manipulated also if the police is so compromising and friendly with the complainant Rama Kant about which we have hardly any doubt in our mind. It was so explicit from the statement of P.W. 4 Rama Kant himself that no other inference flows than the one that we have derived.

At this very juncture, we find it necessary to refer to the injuries of the defence. Respondent Hulas had suffered 7 injuries including an incised wound on the skull. Rest of the injuries, No. 2 a contusion, No. 3 a swelling, Nos. 4 and 5 were traumatic swelling, No. 6 is tenderness on the right index finger and middle finger of right foot, No. 7 was also a traumatic swelling. The seat of these injuries and their dimensions indicate that they were genuinely suffered. These injuries were medically examined by D.W. 2 Dr. O. P. Singh as a private case on 14.2.1979 at 4.00 p.m. in his capacity as Medical Officer-in-Charge, Mala Hospital, Gola Gokaranath Khera. The other injured on the side of the defence is Rameshwar Dayal. He was examined by the same doctor at 4.30 p.m. Five injuries were found on his person. Injury No. 1 was a lacerated wound 4 cm. x 1/2 cm. x bone deep on the left side of scalp. No. 2 was an abraded contusion 6 cm. x 4 cm. on the right side of the forearm on its back 10 cm. above the elbow joint. The colour of skin was found to be bluish. Injury No. 3 was also a contusion 3 cm. x 1 cm. on the right delbis muscle 2 cm. below top. Colour of the skin was noted to be bluish. Injuries No. 4 and 5 were traumatic swellings of the dimension of 8 cm. x 4 cm. and 6 cm. x 4 cm. One was on the right scapula and the other on the right knee joint. These injury reports are Exts. Kha-2 and Kha-3.

The prosecution had completely failed to explain the incised injury on the scalp. Both these injured had suffered at least two injuries on their scalp. Both of them were bone deep. No person of ordinary prudence would suffer these injuries either himself or through any friendly hand. In the circumstances, looking to the seat of the injuries, their dimensions and the nature, we are of the opinion that these injuries are genuine and the explanation offered for their injuries by the prosecution does not stand scrutiny. These persons had suffered larger number of injuries than the prosecution. Insofar as injuries of Shyam Sunder are concerned, despite his injuries being noted in the G.D. Ext. Ka-9 he was never sent for medical examination by the local police. We are unable to comprehend any plausible reason for its not doing so. This clearly was not done in order to negate the defence case that this accused had come to the police station for registering his F.I.R. which was not registered and he was lodged in the lock-up and ultimately booked in this case in collusion with the informant P.W. 4 Rama Kant. We have examined very carefully the statement of P.W. 5 Sita Ram on motive. In our opinion, the findings returned by the learned Sessions Judge that this witness, P.W. 5, a vagabond, was himself involved in large number of criminal cases. So much so that he had to abandon his parental village and settle at village Saldha. Here also his criminal activities were detrimental to the society and probably under the pressure of the police he abandoned that village and took the shelter of the informant Rama Kant. Probably, it was the reason that these Respondents asked him to leave the village. The fact that the informant P.W. 4 Rama Kant had occupied several houses forcibly without any legal registration is indicative of the fact that this witness was assisting him in his wrongful pursuits. All such activities of his were regularly overlooked by the police. This witness ultimately had denied that he had seen the occurrence. The prosecution deliberately did not declare him hostile when he said so. Initially upto the stage of 161, Cr. P.C. he was an acknowledged eye-witness. In the facts and circumstances discussed above, we are not inclined to place any reliance upon his testimony. He was given up as an eye-witness for apparent reasons.

So far as P.W. 6 Shri Pal is concerned, his testimony does not stand in any better footing than the testimony of P.W. 4 Rama Kant. In a number of cases he was involved along with P.W. 4 Rama Kant. These cases include dacoity and murder and this witness had clearly evaded or feigned ignorance to such facts. Some of those facts were clearly admitted by P.W. 4 Rama Kant. In his 161, Cr. P.C. statement this witness never stated that he plied lathi in self-defence. Here in the trial court for the first time he came out with the case that he also plied lathi in self-defence when he was attacked. We find it to be an afterthought.

From the F.I.R., it is apparent that the informant party was larger in number. Although cleverly, the informant stated that initially he and his father was there when the assault on them was launched and on their alarm Shri Pal, Buddhi, his son Anil Kumar, his servant Sita Ram, Kalka, Satya Narain all came to the spot. From the facts and circumstances now available from the statements of P. Ws. 4, 5 and 6 we have hardly any hesitation to come to the conclusion that all of them were together and in all probability they assaulted the accused party first. The deceased being an old man aged about 65 years fell prey to their exercise of right of private defence by these accused persons. He could not manage to run away. He was also armed as stated by P.W. 4 with a danda. In these set of facts and circumstances, we are not inclined to accept the testimony of these witnesses on the factum of manner of incident. The prosecution has not come to court with clean hands. Undoubtedly, it had concealed the true genesis of the incident. Bad blood between the accused and the informant, though was undoubtedly in persistence, there is ample evidence for it though the witnesses have denied these facts but the tenor of their denial strengthens our belief in that direction. The F.I.R. in this case was not prepared in our opinion at the time as alleged by the prosecution. Neither it was registered at 6.30 p.m. The facts and circumstances occurring in this case establish beyond doubt that both the F.I. Rs. , the impugned F.I.R. and Ext. Ka-6 lodged by Sita Ram, were prepared side by side and Sita Ram''s F.I.R. was ante-timed by the police. This is apparent from the fact that despite the fact that the F.I.R. was registered at 6.30 p.m. and it was a case of murder, the S.I. came to the spot at 10.00 p.m. admittedly. Why no steps were taken promptly is wholly unexplained from the record. Even after coming at 10.00 p.m. except taking the dead body into custody, nothing in furtherance of the investigation was done by the I.O. He only stayed there all along the night. The inquest memo was prepared on 13.2.1979 in the morning. The dead body reached the headquarter at 8.15 in the morning on 14.2.1979. Post-mortem was conducted on the same day at 11.00 a.m. The papers were also received by the Medical Officer on 14.2.1979. From this it is clearly discerned that the police was in collusion with the informant and the dead body was despatched to the mortuary on 13.2.1979 in the evening and the papers were sent the next day. There is nothing on record to explain these circumstances though the defence did not cross-examine the witness P.W. 3 who escorted the dead body. But, however, in our opinion it was the duty of the prosecution also to provide an explanation for these laches. We have ourselves examined the papers. The inquest memo and the form 13, and these facts were discerned from these papers. According to inquest memo, it was commenced at 6.30 a.m. and it was concluded at 8.45 a.m. A close look into the inquest memo will reveal that initially it was 6.30 p.m. which by adding a tail at the end of the circle of ''P'' it was made a.m. In this inquest memo in its second page there is no reference as to who was the maker of the F.I.R., although on the front page in the column that pertains to the informant, Ram Kumar''s name is written there.

Thus, from all these discussions, it is evident beyond doubt that the F.I.R. was prepared during the day and all the investigative activities were undertaken after it was ready and sent to the police station any time during the day.

It has also come in the statement of the informant that one Bhagwan Deen was sent to the police station on a cycle before the informant himself proceeded with his written report and the accused to the police station. He also admitted that Bhagwan Deen was present at the police station when he reached there. However, the first I.O., P.W. 8 S. P. Singh denied this fact. The denial is easily understandable. This clearly indicates that some oral information was already communicated to the police station. The I.O. arrived at the scene of occurrence before registration of the case and the F.I.R. was prepared under him by the informant sometime during the night hours or after day break.

Thus, from a careful scrutiny of the prosecution evidence we have hardly any hesitation in coming to the conclusion that truth about the manner of incident was concealed by the prosecution and a coloured version was put forth in order to obviate their own misdeeds. We find substance in the defence version. Presence of Shyam Sunder at the police station at 6.30 p.m. in the form of admission made by P.W. 4 that he had sent in advance Bhagwan Deen on a cycle to the police station leaves hardly any doubt in our mind that Shyam Sunder had gone to lodge the report. It was probably not registered because police had already been taken into confidence and he was packed into the police lock-up. It is further established from the G.D. entry Ext. Ka-9 that failure of the prosecution to subject this accused to medical examination despite his injuries having been noted in the said G.D. further makes it clear and imperative.

In the light of the above discussions, we find that the accused have acted in the exercise of right of their self-defence and the learned Sessions Judge had not committed any error in coming to that conclusion. These witnesses though were injured, their testimonies are not above board and we are at a loss to place any reliance on their evidence. The defence version in our opinion has more teeth and bite than the prosecution. It is probable and truthful.

In the circumstances this appeal is dismissed.