Yadubir and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Heard Mr. Bhagwati Prasad Nigam, learned counsel for the appellants, Ms. Madhulika Yadav, learned A.G.A. for the State and perused the lower court record.

Under challenge in the instant appeal is the judgment and order dated 9.1.1984 passed by IVth Additional Sessions Judge, Hardoi in Sessions Trial No. 67 of 1982 arising out of Case Crime No. 124 of 1981, Police Station Harpalpur, District Hardoi whereby all the fourteen accused persons were convicted and sentenced as under:--

"(i) Under Section 302 read with Section 149 I.P.C. imprisonment for life.

(ii) Under Section 307 read with Section 149 I.P.C. rigorous imprisonment for a period of four years.

(iii) Under Section 324 read with Section 149 I.P.C. rigorous imprisonment for a period of one year.

(iv) Under Section 452 read with Section 149 I.P.C. rigorous imprisonment for a period of one year."

For the offence under Section 323 read with Section 149 I.P.C., all the accused persons were acquitted.

All the sentences were directed to run concurrently.

During pendency of the instant appeal, appellant No. 1-Yaduvir, appellant No. 3 Sewa Ram, appellant No. 4 Atam Ram, appellant No. 5 Khusi Ram, appellant No. 6 Ram Kumar, appellant No. 9 Babu Ram, appellant No. 10 Kishan and appellant No. 12-Saidu have expired, therefore, the appeal so far as it relates to them, was abated. Now surviving appellant No. 2 Ram Autar, appellant No. 7 Siya Ram, appellant No. 8 Radhey Shyam and appellant No. 11 Ashok are before us.

The case of the prosecution, for the purpose of the instant appeal, may be summed up as under:--Complainant Lakhpat lodged an F.I.R. at 7:15 a.m. at Police Station Harpalpur, District Hardoi alleging therein that a long standing enmity was going on between his family and the family of Yaduvir of his village. On the date of incident, i.e. 8.5.1981 at about 5:00 a.m., when the complainant Lakhpat came out of his house to attend the call of nature, in the meantime, accused Yaduvir and Ram Autar, both sons of Khan Shah, armed with Kanta, Sewa Ram armed with gun, Atma Ram and Khushi Ram, both sons of Sewa Ram armed with Kanta, Ram Kumar and Siya Ram armed with country-made rifles, Radhey Shyam and Babu Ram armed with Kanta, Ram Autar armed with gun and Kishna and Ashok of village Mahitapur, who were son of Ram Chander armed with Kanta, Deshraj Yadav resident of Village Kulia armed with Kanta, Saidu Musalman son of Abbul resident of Village Karanpur Matini armed with Kanta came there. Yaduvir exhorted to kill them, but the complainant Lakhpat immediately ran into his house then all the accused persons chased him and trespassed into his house. In prosecution of their common object, they started firing with their respective firearms on the family members of the complainant and also started giving blows of Kantas. Sukhpal was lying on the roof of his house, he was killed there. Mangat Ram tried to hide himself in Bhusa but he was also killed there. Hearing the noise and sound of fires, Data Ram, Amarnath, Panna Lal, Awadhesh, Mahendra Singh and Jagdish also reached there and challenged the accused persons then the accused persons came out of the house and went away in the northern direction. In this incident, Soneshree wife of Sukhpal, Jeevit Ram son of the complainant and Raj Rani wife of the complainant have also received firearm and Kanta injuries. After leaving the dead body at the place of occurrence, the complainant went to the police station along with injured persons on bullock cart and lodged the F.I.R. of this case after getting the same scribed by one Sukh Dev son of Jai Jai Ram as the complainant himself was an illiterate person, who has put his thumb impression on the F.I.R.

After registration of the case, investigation proceeded. The inquest proceedings were conducted and the dead bodies were sent for postmortem. The postmortem on the body of Sukhpal was conducted on 9.5.1981 at 1:30 p.m. and on the same day at 2:30 p.m., the postmortem on the body of deceased Mangat Ram was conducted.

According to the postmortem report, the duration of death was about 1-1/4 days and following ante-mortem injuries were reported on the body of deceased Sukh Pal:--

"(i) Incised wound 8 cm x 1.5 cm x bone deep over right side of head, above and behind the right ear, situated obliquely, margins clean cut. Bone underneath cut down.

(ii) Incised wound 5 cm x 1.5 cm x bone deep over right ear, diving the right ear vertically, situated almost obliquely, margins clean cut.

(iii) Incised wound 11 cm x 2.5 cm x bone deep over right side of neck, just below over jaw, obliquely.

(iv) Incised wound 4 cm x 1.5 cm x muscle deep just below by the side and parallel to injury No. 3.

(v) Incised wound 5 cm x 1 cm x muscle deep just below by the side parallel to injury No. (iv).

(vi) Incised wound 12 cm x 3 cm x bone deep over right side of neck lower part, situated obliquely and reaching upto front aspect, cutting all the soft tissue over right side and front of neck, margins clean cut.

(vii) Incised wound 5 cm x 2 cm x bone deep over right side lower jaw, near mandible angle, obliquely.

(viii) Incised wound 5 cm x 1.5 cm x bone deep on right side of chin, situated obliquely, mandible cut down.

(ix) Incised wound 2.5 cm x 0.5 cm x muscle deep over right upper lip, situated horizontally.

(x) Incised wound 7 cm x 3 cm x bone deep over back of right shoulder, obliquely situated.

(xi) Incised wound 4 cm x 2 cm x bone deep over back of right wrist joint, bone cut down.

(xii) Incised wound 2 cm x 0.5 cm x bone deep over back of left shoulder and backwards.

(xiii) Incised wound 3 cm x 1.5 cm x bone deep over back and root of left middle finger.

(xiv) Incised wound 1.5 cm x 1 cm x muscle deep over right side of chest, just below the middle of right.

(xv) Incised wound 1.5 cm x 0.5 cm x muscle deep over back and outer and lower aspect of left thigh.

(xvi) Abrasion 0.5 cm x 0.5 cm over back of chest left side of the middle."

Likewise on the body of deceased Mangat Ram, following ante-mortem injuries were reported by the doctor:--

"(i) Incised wound 6 cm x 2 cm x bone deep over right side of neck below the right ear, situated almost horizontally, margins clean cut and bone underneath (6-5) vertebrae was cut on right side.

(ii) Incised wound 2 cm x 0.5 cm x muscle deep over front of neck right side upper part.

(iii) Multiple black spots in an area of 15 cm x 11 cm over face, mostly on right side. Very few spots are separate measuring 0.1 cm x 0.1 cm x skin deep.

(iv) Multiple black sports in an area of 20 cm x 12 cm over right side of neck and upper chest. Almost together, very few separate measuring 0.1 cm x 0.1 cm x skin deep.

(v) Firearm wound of entry 3 cm x 2 cm x cranial cavity deep over left side, 2 cm above left ear, margins inverted and lacerated and blackened. Left parietal bone broken.

(vi) Firearm wound of entry 2 cm x 1.5 cm x muscle deep over front and outer aspect of left wrist joint passing through and through. Margins inverted and blackened.

(vii) Abrasion 2 cm x 1 cm over front aspect of right knee joint."

The cause of death of both the deceased persons was shock and hemorrhage as a result of ante-mortem injuries. Small intestine and large intestine were full of gases and faecal matter.

Injured Jeevit Ram, Smt. Raj Rani and Soneshwari were medically examined at P.H.C. Harpalpur on 8.5.1981 and their medical examination started from 8:00 a.m. and concluded at 8:40 a.m.

According to the medical examination report of Smt. Raj Rani, following ante mortem injuries were found on her person:--

"(i) Multiple gunshot injuries each 0.1 cm x 0.1 cm x skin deep on the face right side over cheek, nose, kips and chin, Margins inverted.

(ii) Multiple gunshot injuries each 0.1 cm x 0.1 cm x skin deep on the anterior aspect of upper half of right arm top of shoulder and chest (over sternum). Margins inverted.

(iii) Gunshot wound 1.2 cm x 1 cm x skin deep on the anterior aspects of right arm in the middle, margins inverted, bleeding present. Direction from below upwards."

All the injuries were simple, cause by firearm and were fresh in duration.

According to the medical examination report, following injuries were found on the body of Soneshwari:--

"(i) Incised wound 4 cm x 0.5 cm x scalp deep on the head left side 8 cm above left ear.

(ii) Incised wound 4.5 cm x 1.5 cm x .5 cm deep on the scalp over occipital region. Bleeding present."

In the opinion of the doctor, both the injuries were simple in nature and caused by sharp edged weapon and were fresh in duration.

On the body of injured Jeevit Ram, following injuries were found:--

"(i) Contusion 1.5 cm x 1 cm on the face left side 2 cm below eye.

(ii) Multiple gunshot injuries each 0.1 cm x 0.1 cm x skin deep on the upper half of chest middle and right side and below axilla. Margins inverted, direction from before backwards and slightly laterally.

(iii) Multiple gunshot injuries each 0.1 cm x 0.1 x skin deep on the anterio-medial aspect of right elbow. Margins inverted, direction from before back wards and slightly.

(iv) Incised wound 4 cm x 1.5 cm x 1 cm deep on the lateral aspect of right elbow. Bleeding present.

(v) Incised wound 5 cm x 1.5 cm x .75 cm deep on the middle of posterio aspect of right forearm, bleeding present.

(vi) Incised wound 7 cm x 1 cm x .75 cm deep on the middle of posterior aspect of left forearm.

(vii) Incised wound 2 cm x .5 cm x .5 cm deep on the base of metacorpal bone of thumb left hand."

All the injuries were simple in nature. Injury No. (i) was caused by hard and blunt object. Injury No. (ii) and (iii) were caused by discharge from a firearm and raised by sharp edged weapon.

During the course of investigation, place of occurrence was inspected and its site plan was prepared. The bloodstained earth and plain earth was taken into possession. One tickli and dot, three empty cartridges, one ladder and bloodstained clothes of the three injured persons were taken into custody by the police and separate memos of these recoveries were prepared.

After concluding the investigation, charge sheet was filed against all the named accused persons.

As we have stated earlier that at present only four surviving appellants, namely, Ram Autar, Siya Ram, Radhey Shyam and Ashok are before us. Out of the said four appellants, appellants Siya Ram is alleged to be armed with country-made rifle while remaining three appellants were armed with Kanta.

The case of the defence was that they have been falsely implicated because of enmity. It was pleaded that actually dacoity was committed in the village and during course of dacoity, Sukhpal also reached at the house of the complainant and in the course of the said dacoity unknown miscreants have caused injuries and in the course of same transaction, two persons were murdered and three sustained injuries. It was only because of the enmity, the case of dacoity has been converted into offence of murder and due to enmity, all the appellants have been falsely implicated. It has also been suggested that the complainant was not present in the village. After the incident, he was called and subsequently an anti-timed F.I.R. was lodged.

In order to prove its case, prosecution has examined PW-1 complainant Lakhpat, PW-2 Jeevit Ram, injured eyewitness. PW-3 Mahendra Singh another eyewitness of this incident. PW-4 Dr. N. Ansari, who has medically examined the three injured persons. PW-5 S.O. R.K. Tiwari, Investigating Officer of this case and he has also proved the chik report and G.D. of this case as secondary evidence. PW-6 Dr. N.A. Khan, who has conducted postmortem on the two dead bodies. PW-7 Constable Bhairo Lal Pande, who along with Village Chaukidar Mahipal had taken the dead body in sealed condition for postmortem.

No evidence in defence was adduced on behalf of the appellants.

After appreciating the evidence on record, the trial court has convicted the appellants as above, hence the instant criminal appeal.

Submission of learned counsel for the appellants was that F.I.R. of this case was ante timed. None of the witnesses, produced by the prosecution, has seen the incident, which had taken place inside the house. The evidence of PW-1 Lakhpat was highly improbable. Likewise the evidence of PW-3 Mahendra Singh was also highly improbable. The evidence of PW-2 injured Jeevit Ram does not inspire confidence because he has not disclosed the name of the persons, who have caused injuries to him during investigation and for the first time before the Court, he has furnished their names. It has also been submitted that the conduct of Jeevit Ram appears to be highly suspicious. Further submission of learned counsel for the appellants was that the presence of Sukhpal and his wife at the house of the complainant Lakhpat was highly improbable because Sukhpal has a separate house in the same village adjacent to the house of appellant Ram Autar and in between the two houses their exists another house. So the presence of the dead body of Sukhpal in the house of the complainant makes the defence version probable that it was a case of dacoity and during course of dacoity Sukhpal and his family members came for the rescue of the family of the complainant wherein they have sustained injuries and Sukhpal died because of the injuries. But the trial court has not considered all these aspects in correct perspective and has convicted the accused persons.

Learned A.G.A. has submitted that all the three witnesses of fact have fully supported the case of the prosecution. Their evidence stands corroborated by the medical evidence and the trial court, by a reasoned judgment, has convicted the appellants and the finding of the trial court does not suffer from any illegality or irregularity, therefore, the appeal has no force and no interference is called for in the impugned judgment by this appellate court.

Now in the light of the rival submissions, the prosecution evidence has to be evaluated. First we will consider the medical evidence, which is in the form of evidence of Dr. N. Ansari and Dr. N.A. Khan and also in the form of three medical examination report and two postmortem reports, the details of which have already been stated in the earlier part of the judgment.

Perusal of the evidence of two doctors and medical examination report and the postmortem report suggests that accused persons had used firearms and sharp edged weapon to commit this offence. The postmortem reports also suggest that at the time of incident, the deceased had not attended the call of nature as the intestines were found to be full with gases and faecal matters. The medical examination report of the three injured also suggests that they have received gunshot injuries and also injuries by the sharp edged weapon. The time of incident stands fully corroborated by the duration of the injuries reported by the doctor and the duration of death reported by the doctor, who has conducted postmortem on the bodies of the two deceased. So the homicidal death of the two deceased persons, Sukhpal and Mangat Ram at the time and by the weapon as alleged by the prosecution stands established. Likewise the three injury reports also establishes that in the same incident, these persons have sustained injuries by the arms and at the time as claimed by the prosecution.

Now we come to the ocular testimony. It is an admitted fact that the complainant side and appellants were at daggers drawn. There was long standing enmity between the two parties. It has come in the evidence that several cases under Section 307 I.P.C. were lodged from the side of the complainant against the appellants and likewise, several cases were registered against the complainant side from the side of the appellants. Accused persons of different caste have been made accused and it has come in the evidence that they all belong to the rival party. PW-1 complainant Lakhpat in his evidence has furnished the details of the cases which were lodged from his side against the appellants. In his cross examination, he has admitted that some cases were also lodged from the side of accused appellants against his family members. He has admitted in his cross examination that the house of Sukhpal is situated towards east of the house of Ram Autar and the house of Ram Autar has been shown in the site plan which is situated towards south of the house of the complainant and in between two houses, there is a house of one Data Ram and thereafter the house of appellant Yaduvir, Ram Autar. Towards east of the house of Ram Autar, the Investigating Officer has mentioned in the site plan the other Aabadi of the village of Mahtapurwa. According to the evidence of PW-1 complainant Lakhpat after the house of Ram Autar towards east, there is house of Phulwari and after the house of Phulwari, the house of Sukhpal is situated. He has stated that Panna Lal and Sukhpal resides in the same house. PW-1 complainant Lakhpat in his evidence has also furnished the inter se relationship of the injured and the deceased. Deceased Mangat Ram was son of complainant Lakhpat. Deceased Sukh Pal was his cousin, who was son of Sunder Lal. PW-2 Jeevit Ram was his son and injured Raj Rani was his wife. Injured Soneshwari was wife of Sukhpal. According to the evidence of PW-1 Lakhpat, at about 5:00 a.m., when he came out of his house to go to attend the call of nature then he saw all the appellants armed with their respective weapons rushing towards him then he immediately rushed inside his house and from the hole of Tatiya he ran away from his house and he came back inside the house only after the accused persons made good their escape. So he is not a witness of whatever occurred inside the house in his absence but his evidence is to the effect that all the appellants trespassed into his house, chasing him and thereafter they went away from his house. When he came to the house then he found two dead bodies and the injured persons. He has also stated that when he came inside the house then he found that Mangat Ram and Sukhpal were lying dead and Soneshwari, Raj Rani and Jeevit Ram were in injured condition. PW-2 Jeevit Ram has stated that he was given blow of Kanta by Yaduvir and Ram Autar son of Khan Shah. He has also stated that he was fired at by Ram Autar son of Indal but these details were neither mentioned in the F.I.R., nor these details were disclosed by the witnesses to the Investigating Officer under Section 161 Cr.P.C. He has stated that the accused persons came inside. He was given blows and two accused persons caused him injuries and remaining accused went towards his brother. In the meantime he ran away from the place of occurrence and came back inside his house after about an hour. He hide himself in the bushes of Behaya for about an hour. In his cross examination, he has stated that after sustaining the injuries, he became unconscious but he regained senses when Mangat Ram was attacked. He has nowhere stated that in his presence any of the accused used the ladder and went on the roof of the house and caused injuries to Sukhpal. In the instant case, it transpires from the prosecution evidence that injured Soneshwari was also present with her husband Sukhpal and none of the prosecution witnesses examined by the prosecution has stated that any of the appellants have caused injuries to Sukhpal rather the prosecution evidence is absolutely silent on the point as to how Sukhpal was murdered. The presence of injuries to Soneshwari suggests that she was also present with him. So Smt. Soneshwari, who was an injured witness was the best witness on this point but she has been withheld by the prosecution. PW-1 Lakhpat and PW-3 Mahendra Singh have not seen the incident that took place inside the house. Admittedly PW-3 Mahendra Singh is resident of village Mahatapur and his village was situated at a distance of about one furlong from the helmet of Mahtapur where this incident has taken place. It has been suggested that village of these witnesses is at a distance of about one mile from the place of occurrence. He has stated that he was sleeping in his Khalihan. He heard the noise. He rushed from his Khalihan towards the said place. On the way, he met with other witnesses. Noise was coming from the house of Lakhpat. They challenged the accused persons and the accused persons threatened them not to interfere otherwise they will face the same consequences. Subsequently on the pressure of the villagers, accused persons made their good escape. However, this witness has stated that he remained at the place of occurrence till the Investigating Officer came to the place of occurrence at about 9:00 a.m. But he has nowhere stated that during this period, he met with PW-2 Jeevit Ram. While according to the evidence of PW-1 complainant Lakhpat when he came into his house after the incident Jeevit Ram was there. He has nowhere stated as to how Jeevit Ram sustained injuries in this incident nor this witness met with PW-2 Jeevit Ram during the period he remained at the place of occurrence. Perusal of his evidence shows that none of the persons, who were present inside the house told him that PW-2 Jeevit Ram has also sustained injuries. So virtually the evidence of PW-3 was not wholly reliable and if suffered from various infirmities but the trial court has not evaluated his evidence in correct perspective. The evidence of PW-2 was also not reliable because he has not seen the incident that took place inside the house. The accused persons have come with a definite defence that virtually dacoity was committed in their house during which the injured persons have sustained injuries and the death of two persons were caused and only because of the enmity, a false case has been concocted against them. Law is settled on the point that while the prosecution is obliged to prove its case beyond reasonable doubt but the accused persons are required to show that their defence was probable. Only on the preponderance of probability, the defence case has to be considered. On this legal aspect, reference may be made to the pronouncement of Hon''ble the Apex Court in the case of M. Abbas Vs. State of Kerala reported in , (2001) 10 SCC 103 wherein Hon''ble the Apex Court in paragraph No. 10 has held as under:--

"10..................... Where an accused sets up a defence or offers an explanation it is well settled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities."

In the case of Krishnan Vs. State of Tamilnadu reported in , (2006) 11 SCC 304 Hon''ble the Apex Court in paragraph No. 15 has held as under:--

"15........................... The burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a preponderance of probability (vide Partap v. State of U.P. , (1976) 2 SCC 798; Salim Zia v. State of U.P. , (1979) 2 SCC 648; and Mohinder Pal Jolly v. State of Punjab , (1979) 3 SCC 30."

Now we will consider whether the defence version was probable or not. PW-1 complainant Lakhpat in his evidence has admitted that house of deceased Sukhpal was situated at a different place wherein he lived, how he came at the roof of the house of the complainant along with his wife has nowhere been explained. Admittedly he was cousin of the complainant. Since he had a separate house, therefore, natural conduct has to be considered and the natural conduct was that a person would sleep with his wife in his own house. If the prosecution claims against such natural conduct then the prosecution was obliged to furnish the explanation for such unnatural conduct. But in the entire prosecution evidence, there is no iota of evidence on the point as to how Sukhpal and his wife reached at the house of the complainant while on the contrary, the appellants have come with a definite defence that it was a case of dacoity and hearing the noise, Sukhpal and his wife came for the rescue of complainant side, who were his family members and they were assaulted by the unknown miscreants and this false case has been concocted because of the on going enmity. A very strong enmity between the two parties is an admitted fact. The non examination of Soneshwari wife of Sukhpal also gives rise to an adverse inference against the prosecution in the peculiar facts of this case and provides extra strength to support the defence story. Submission of learned counsel for the appellants has force that if she would have been examined then she would have furnished the reason as to how she came at the roof of the house of complainant from her own house, which was situated away from the place of occurrence.

The trial court has failed to appreciate these aspects in correct perspective and has held the prosecution evidence to be reliable while the same was absolutely silent as to how Sukhpal was murdered. The evidence of PW-2 regarding murder of Mangat Ram also does not appear to be wholly reliable as he has stated that after receiving the injuries, he became unconscious but when he realized his mistake then he has stated that he regained his senses when Mangat Ram was attacked. Perusal of the evidence shows that Jeevit Ram was the complainant and injured in some of the cases under Section 307 I.P.C. in which appellants side was accused. So if the incident had taken place as alleged by the prosecution then the appellants would have preferred not to spare Jeevit Ram, who was an injured witness against them in a case under Section 307 I.P.C., therefore a critical and close scrutiny of the prosecution evidence clearly shows that the defence version was probable and this conclusion entitles the appellants to the benefit of doubt.

In view of the discussion made above, this appeal deserves to be allowed and is hereby allowed. The judgment and order dated 9.1.1984 passed by IVth Additional Sessions Judge, Hardoi in Sessions Trial No. 67 of 1982 is hereby set aside. The accused appellants are acquitted of the charges levelled against them. They are on bail. They need not surrender. Their bail bond is cancelled and sureties discharged.

Office is directed to certify this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.