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Allahabad High Court · body

2003 DIGILAW 185 (ALL)

Ram Chandra v. State Of Allahabad

2003-01-28

K.N.OJHA, M.S.JAM

body2003
M. C. JAM, J. ( 1 ) THE appeal was filed by two persons, namely, Ram Chandra and Hon Lal (real brothers) sons of Nanaku against judgment and order dated 10. 6. 1981 passed by Sri J. B. Singh I, the then V Additional Sessions Judge, Allahabad in S. T. No. 321 of 1979 convicting them under Section 302 I. P. C. read with Section 34 I. P. C. and sentencing both of them to undergo life imprisonment. Out of them, Ram Chandra expired during the pendency of appeal and such appeal has abated in respect of him under order dated 24. 9. 2002. Therefore, presently the Court is concerned only with the other appellant Hon Lal. ( 2 ) THE skeleton facts as per the F. I. R. and the evidence taken cumulatively may be set forth for appreciation of the discussion that has to follow. The incident occurred on 6. 4. 1978 at about 11. 00 a. m. in Village Tikuri hamlet of Mandhauka, Madkaini, Police Station Naini, District. Allahabad. The F. I. R. was lodged the same day at 12. 30 P. M. by Rama Nand P. W. 2 (eye witness ). The distance of the Police Station from the place of occurrence was four miles. The deceased was Smt. Shyampati Devi wife Gopi. Admittedly, she was the real aunt of the present appellant Hori Lal and his brother Ram Chandra (deceased appellant ). Her husband had died earher. Their father Nanaku used to look after the cultivation of the deceased before the consolidation proceedings took place. As a result of consolidation, she was allotted separate chak consisting of 10 bighas of agricultural land. For about 5 or 6 months before the occurrence, she had been expressing a desire that she would transfer half of her agricultural land to Rama Nand P. W. 2. grand son of her sister Daulati Devi and remaining half to the son of her daughter Shanti. She had also started her separate cultivation. Lalloo Ram P. W. 5 her son-in-law started living in the same village for looking after her cultivation. As a result, the two appellants became annoyed with her. With this background of strained feelings, the incident took place. ( 3 ) THE deceased appellant Ram Chandra with Karaull and the present appellant. She had also started her separate cultivation. Lalloo Ram P. W. 5 her son-in-law started living in the same village for looking after her cultivation. As a result, the two appellants became annoyed with her. With this background of strained feelings, the incident took place. ( 3 ) THE deceased appellant Ram Chandra with Karaull and the present appellant. Hon Lal with country made pistol arrived at the house of the deceased when she was lying on a cot in front thereof. At that time, Rama Nand P. W. 2 and Lalloo Ram P. W. 5 were doing thrashing work behind her house. Being attracted by abusing altercation, Lalloo Ram P. W. 5 followed by Rama Nand P. W. 2 reached the front side of the house of the deceased. In the meanwhile, the deceased appellant. , Ram Chandra inflicted Karaull blows while appellant No. 2 Hon Lal fired a shot on her. The deceased appellant No. 1 Ram Chandra had also thrown some hand grenade; Thereafter, both of them managed to escape. Shyampati Devi died at the spot. Rama Nand P. W. 2 lodged the written F. I. R. resulting in registering of the case and the investigation thereafter. ( 4 ) IT should also be related here that post mortem over the dead body of the deceased was conducted by Dr. A. B. Lal P. W. 4 on 7. 4. 1978 at 3. 15 P. M. The deceased was about 55 years of age and one and half day has passed since she died. The following antemortem injuries were found on her person: 1. Lacerated wound 5-1/2 x 3-1/2 x brain deep on the right side face with complete loss of right eye and its soket and fracture of the temporal right side. parietal right side. frontal sphenoid and ethmoid bones. Brain matter badly lacerated and coming out of the wound. 2. Lacerated wound 1/4 x 1/4 x bone deep at the nose just to the right of nose bridge. 3. Incised wound 2-1/2 x 1 x bone deep at the left side of lower jaw, cut at the level of lower lateral incisor and the lower left canine hanging with the cut gum. 4. Incised wound 2-1/2 long on the left cheek from angle of the mouth left side. The cause of death was shock and haemorrhage as a result of antemortem injuries sustained by the deceased. 4. Incised wound 2-1/2 long on the left cheek from angle of the mouth left side. The cause of death was shock and haemorrhage as a result of antemortem injuries sustained by the deceased. On conclusion of the investigation, charge-sheet was laid against the appellants who were tried. The trial culminated into their conviction and sentence as stated above. ( 5 ) THE defence was of denial and of false implication due to enmity. ( 6 ) AT trial, the prosecution, in all examined 10 witnesses. Bindeshwari P. W. 1 was examined as regards motive for the commission of this crime whereas Rama Nand P. W. 2 and Lalloo Ram P. W. 5 were produced as eyewitnesses. Dr. A. B. Lal P. W. 4 had conducted autopsy on the dead body of the deceased and Devendra Pratap P. W. 6 was the Investigating Officer. The rest were formal witnesses. The appellants also examined two witnesses in defence. Shailendra Prasad Pandey, Oath Commissioner D. W1 proved the affidavit of Rama Nand P. W. 2 through which he had sworn that he had not witnessed the occurrence at all. Aditya Prasad Dwivedi, Advocate D. W. 2 proved the Vakalatnama through which he was engaged by Rama Nand P. W. 2. ( 7 ) WE have heard Sri R. N. Upadhyay, learned Counsel for the appellant Hon Lal in support of the appeal and Sri Shekhar Yadav, learned Additional Government Advocate from the side of the State in opposition of the appeal. The record of the lower Court has also been summoned before us which has been carefully examined. ( 8 ) THE first argument of learned Counsel for the appellant is that there could hardly be any motive on the part of the appellant Hon Lal or with his deceased brother (appellant No. 1 Ram Chandra) to commit this crime. It has also been urged that no independent witness of the village has been examined. Another main argument of the learned Counsel for the appellant is that there is apparent material conflict, between the medical evidence and ocular testimony as also the case initially set up in the F. I. R. lodged by an alleged eye-witness Rama Nand P. W. 2. ( 9 ) TAKING up the question of motive first it is pertinent to state that motive is not evidence in a case. ( 9 ) TAKING up the question of motive first it is pertinent to state that motive is not evidence in a case. But it is desirable that when prosecution comes up with a motive, it should be proved or at least tested by the court for satisfying the judicial mind as to the authorship of the crime alleged to have been committed by the accused. In the instant case Bindeswari P. W. 1 has been examined on motive aspect. He is the husband of the sister of the deceased. Admittedly, the deceased appellant Ram Chandra was the son and present appellant Hon Lal is the son of Nanaku, brother of Gopi, husband of the deceased. The testimony of this witness is that earlier to consolidation operations, Nanaku (father of the two appellants) used to cultivate the land of Gopi. After the death of Gopi, ten bighas land was allotted as separate chak in favour of the deceased Shyampati Devi wife of Gopi and the appellants felt hurt by it as she started getting it cultivated herself through Mahabir and thereafter by Inder. Rama Nand is the grand son of the witneses Bindeshwari P. W. 1 and he testified that five or six months before her murder, Shyampati Devi had been expressing a desire that she would transfer half agricultural land to Rama Nand who has also been examined as P. W. 2 and half to the son of her daughter Shanti Devi born to her from her (deceaseds) former husband Ram Prasad. Shanti Devi was also earlier married to one Mallu by her father Ram Prasad, but was later on married with Lalloo. According to this witness, two appellants were apprehensive on the expression of desire by Shyampati Devi of settling her land in the manner aforesaid. The submission of the learned Counsel for the appellants is that they could not gain anything by murdering Shyampati Devi, because her daughter Shanti Devi was alive and in case of her death, she was to succeed to her estate. In this view of the matter no benefit was going to accrue to the appellants by murdering Shyampati Devi. The argument is not without substance. Shanti Devi daughter of Shyampati Devi being alive the two appellants could not succeed to the land of Shyampati Devi on her death and as such they could have no motive to eliminate her. In this view of the matter no benefit was going to accrue to the appellants by murdering Shyampati Devi. The argument is not without substance. Shanti Devi daughter of Shyampati Devi being alive the two appellants could not succeed to the land of Shyampati Devi on her death and as such they could have no motive to eliminate her. Obviously, the motive assigned by the prosecution against the appellants for commission of this crime is infirm and like a square peg in round hole. ( 10 ) IT is also true that no independent witness has been examined by the prosecution in support of its case. The two eye witnesses, namely, Rama Nand P. W. 2. and Lalloo P. W. 5 are closely related to the deceased. Rama Nand is the grand son of her sister and Bindeshwari P. W. 1 whereas Lalloo Ram P. W. 5 is her son in law. We note from the testimony of Rama Nand P. W. 2 that the house of Mahabir is situated in the south at a distance of 30 paces from the house of the the deceased Shyampati Devi. It is shown also in the site plan and there are several members in his family. The house of Chaubey is also nearby and 12 or 14 members are there in his family. Adjacent in the south is the house of Benchu Lal which is only at a distance of about 12 paces from the house of Shyampati Devi. The house of Benchu is also shown in the site plan. Then there is the house of Suraj Deen in the north of house of the deceased Shyampati Devi at a distance of ten paces. It is also depicted in the site plan. There are five or six members in his family. In the west of the house of the deceased at a distance of 20 paces the house of Inder is situated as stated by Rama Nand P. W. 2. He also stated that he had enmity only with Suraj Deen out of the persons named above. But the truth of the matter is that no inhabitant of any of above houses has been examined in support of the prosecution case who could be termed to be independent. The incident is said to have taken place at about 11. He also stated that he had enmity only with Suraj Deen out of the persons named above. But the truth of the matter is that no inhabitant of any of above houses has been examined in support of the prosecution case who could be termed to be independent. The incident is said to have taken place at about 11. 00 a. m. in broad daylight and naturally some of the inhabitants of the nearby houses could be produced who could have rendered either direct or res gestae evidence in support of the happening. None was named either in the F. I. R. Instead, we find that Benchu Lal P. W. 3 was examined as a witness of collection of blood stained and simple earth from the place of occurrence by the Investigating Officer at the time of preparation of the Panchayatnama of the dead body of the deceased. It is gleaned that he disturbed the entire prosecution case. His clear version is that on the date of occurrence he had reached his field at about 4. 4. 30 a. m. to harvest the crop. Adjacent to his field was the field of Ram Chandra and Hon Lal appellants. By the time he was harvesting the crop, he found both the appellants also at their field with other members of their family for harvesting the crop. It was on getting information regarding the murder of Shyampati Devi that he had left his field for the spot and at that time the two appellants were harvesting crop in their field and they also reached the spot ahead of him on getting information of the murder. If the two appellants were harvesting crop in their field and Benchu Lal P. W. 3 got information there regarding the murder, then it falsifies the prosecution case that they were the culprits who committed the murder. Regard being had to the fact that they had also almost simultaneously left their field for the spot when Benchu Lal P. W. 3 had also so left his field for hurrying to the spot. So absence of independent witnesses and the revelation made by Benchu Lal P. W. 3 in his cross examination gives a serious jerk to the prosecution case shaking its very foundation branding the appellants as the culprits of the crime. So absence of independent witnesses and the revelation made by Benchu Lal P. W. 3 in his cross examination gives a serious jerk to the prosecution case shaking its very foundation branding the appellants as the culprits of the crime. ( 11 ) WE also see merit in the argument that there is yawning gap between the recital of the F. I. R. (First version of the prosecution case) and the evidence adduced in the court. We are also of the clear view that there is apparent material conflict between the ocular testimony and medical evidence. Let us make our meaning clear. As per the F. I. R. version, at the exhortation of Ram Chandra appellant Hori Lal appellant had fired on Shyampati Devi from close range and she died of said injury then and there. The F. I. R. was lodged by Rama Nand P. W. 2 and he and Lalloo had allegedly reached the spot on hearing the abuses emanating from the door of Shyampati Devi deceased. In the post mortem report, Doctor conducting the autopsy, namely, Dr. A. B. Lal P. W. 4 did not find any firearm injury on the person of the deceased. There was no evidence of any firearm injury having been sustained by her. Instead she had sustained two lacerated wounds and two incised wounds as detailed on page No. 3 of the judgment. Doctor opined that lacerated wounds could have been caused by bomb blast and incised wounds by sharp cutting weapon. However, he clarified in his cross examination that the lacerated wound detailed as ante mortem injury No. 1 could not have been caused by a small splinter of bomb, but lacerated wound at serial No. 2 could have been caused by a small splinter of bomb. To render their testimony in tune of medical evidence, Rama Nand P. W. 2 and Lalloo P. W. 5 gave a different version in their statements and in their testimonial assertions before the court. Rama Nand P. W. 2 (informant) started saying that he had seen pistol in the hand of Hon Lal and Karauli (a sharp edged weapon) with Ram Chandra and that Ram Chandra had thrown a ball like object on Shyampati Devi which had produced sound. According to him, he had seen that Shyampati Devi had sustained injury near her eye. Rama Nand P. W. 2 (informant) started saying that he had seen pistol in the hand of Hon Lal and Karauli (a sharp edged weapon) with Ram Chandra and that Ram Chandra had thrown a ball like object on Shyampati Devi which had produced sound. According to him, he had seen that Shyampati Devi had sustained injury near her eye. There is nothing in the F. I. R. lodged by him that Ram Chandra had thrown a ball like object on the victim which had hit her eye. He also admitted that he had not mentioned in the F. I. R. that Hon Lal had a Karauli in his hand. Though he admitted himself to be the author of the F. I. R. Ext. Ka-1 in his examination in chief, but tried to disown it also in his cross examination and started saying that he had not written in his report that on exhortation of Ram Chandra, Hori Lal had fired on Shyampati Devi from close range. He coined another theory that report that he went to lodge at the police station was not taken down and in the evening Daroga made him to write another report which is Ext. Ka 1. Obviously the Daroga could hardly have any reason or purpose of getting scribed by him a different F. I. R running counter to the post mortem report. The evidence of Lalloo P. W. 5 is still at variance that he saw Ram Chandra striking Karaull blows on Shyampati Devi on her face and then on her eye and further that Hori Lal fired at her with a pistol. According to him when he and Rama Nand tried to apprehend the appellants, Ram Chandra threw a ball like object producing sound. He also testified that it was a banging sound which attracted him and Rama Nand to the spot. ( 12 ) THERE is yet another factor which shows the fickle character of Rama Nand P. W 2 and indicates that he is a wholly unreliable person who can say anything carelessly. When the trial was in progress before V Additional Sessions Judge, Allahabad, he filed an application with affidavit on 24. 9. 1980 through Sri A. P. Dwivedi D. W. 2 (engaged by him as a counsel ). The affidavit was sworn before Sri Shailendra Prasad Pandey. D. W. 1, Oath Commissioner. When the trial was in progress before V Additional Sessions Judge, Allahabad, he filed an application with affidavit on 24. 9. 1980 through Sri A. P. Dwivedi D. W. 2 (engaged by him as a counsel ). The affidavit was sworn before Sri Shailendra Prasad Pandey. D. W. 1, Oath Commissioner. Herein, he sworn that he had not witnessed anything. While in witness box before the court, he admitted his signatures on the application affidavit and vakalatnama, but came up with the excuse that one Kishan Sardar, his neighbour, had made him to consume liquor at his house and on the pretext of procuring some loan for him from Chaka block had obtained his signatures thereon. He admitted that he had no enmity with Kishan, Sardar. It is difficult to place reliance on the testimony of a person with character like him, who has a wavering mind and can shift his stand with no regard to truth or consistency,. What he stated in the F. I. R. is at great variance as from the testimony delivered by him in the Court. His version as eye witness is not reconciliable with that of the other eye-witness Lalloo P. W. 5 The recital of the F. I. R. as also the statements before the Court made by these two eye witnesses are also marked in conflict with one another. ( 13 ) DOUBTLESS, Shyampati Devi was the victim of violence. But it goes without saying that the Court of law is to be guided by the legal evidence produced before it. One could not be could be found to be guilty on surmises. Infirm, conflicting and unreliable evidence cannot form the foundation for conviction. ( 14 ) RESULTANTLY, our conclusion based on above discussion is that there are unpatchable holes in the prosecution version and in the evidence adduced in the court. The conviction recorded by the trial Court cannot be sustained. The appeal deserves to be allowed. The appeal is hereby allowed. The conviction and sentence passed by the trial court are set aside. The appellant Hon Lal is acquitted. The appeal has already abated in respect of other appellant Ram Chandra because of his death. The conviction recorded by the trial Court cannot be sustained. The appeal deserves to be allowed. The appeal is hereby allowed. The conviction and sentence passed by the trial court are set aside. The appellant Hon Lal is acquitted. The appeal has already abated in respect of other appellant Ram Chandra because of his death. ( 15 ) LET a copy of this judgment along with record of the case be immediately sent to the court below for needful compliance under intimation to this Court within two months from the date of receipt. Appeal allowed. . .