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Allahabad High Court · body

2005 DIGILAW 924 (ALL)

State of U. P. v. Cheda

2005-05-10

body2005
M. C. JAIN, J. ( 1 ) THE State has lodged this appeal against the judgment of acquittal dated 29. 6. 1981 passed by sri B. K. Sharma, the then IV Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 106 of 1980. Chheda and 14, others (total 15 persons)-accused respondents were tried for committing various offences including rioting, murder, attempt to murder and causing hurt. ( 2 ) A brief reference to the factual position would suffice. The incident rook place on 17. 7. 1979 at about 6 P. M. in village Lidhaua, Police Station Katra, District Shahjahanpur and the F. I. R. was lodged on 18. 7. 1979 at 5 A. M. by Ram Swamp PW 5. One Chandra Kali lost her life in the incident having received gunshot injuries. The injured of the felon) were five others, namely, kamla Devi, Khem Karan. Rameshwar, Ram Singh and Chhidammi. The root cause of the incident was the uprooting of pegs (meant for tying cattle) by Chheda accused from the land situated in the eastern side of the house of the complainant. claimed by the prosecution side. Rameshwar injured had allegedly objected to it. He was allegedly assaulted by Chheda with lathi. Other accused allegedly joined him. Others coming to the rescue of Rameshwar were also targeted. Chandra Kali deceased was the mother of the complainant. Rameshwar, Ram Singh and ram Swarup complainant are brothers. Khem Karan is their uncle. Chhidammi is the son of knem Karan Kimla is the wife of Ram Singh. ( 3 ) THE inter se connection of the accused persons may also be noted. Har Dayal, Behari and raggu were alleged to be three brothers. Gulzan accused and one Munna were sons of Har dayal. Vir Pal, Ram Nath and Ram Khilauna accused are: the sons, of Gulzari accused. Jagdish and Ram Swamp accused, are the sous of said Munna. Dular was the son of Behari. Kallu and banwari accused are the sons of said Dular. Ajuddhi accused is the son of Raggu aforesaid, bhagwannu and Jamadar accused are the sons of Ajuddhi accused. Neetu Pirthi and Tilok were were brothers inter se, Chheda accused is the son of Pirthi. After the death of Pirthi, the mother of Chheda remarried with Neetu and by that remarriage Khayali and Kesari were born to Her. Ajuddhi accused is the son of Raggu aforesaid, bhagwannu and Jamadar accused are the sons of Ajuddhi accused. Neetu Pirthi and Tilok were were brothers inter se, Chheda accused is the son of Pirthi. After the death of Pirthi, the mother of Chheda remarried with Neetu and by that remarriage Khayali and Kesari were born to Her. Balak Ram and Shri Ram accused are the sons of said Khayali Prahlad, a resident of the same village Lidhaua was son of Behari. ( 4 ) RAM Nath, Ram Khilauna, Gulzari and Balak Ram accused also received injuries. ( 5 ) THERE was said to be earlier background of enmity between the two sides on the issue of taking auction of fishing and Bhasinda in a pond. There had been criminal litigation also between the two sides earlier. ( 6 ) THE accused Virpal was allegedly armed with spear, Ram Khilauna with a Kanta, Ram Nath and Jamadar had guns and rest were armed with lathis Ram Singh and Chhidammi were said to have used lathis in self-defence. The complainants mother Chandra Kali and his brothers wife kamala as also the complainant had allegedly come out of the house on the commotion. The reason for late lodging of the; F. I. R. given by the prosecution was that in the night, out of fear the complainant party did not go to the Police Station. In the morning, the complainant party started for the Police Station in a bullock cart with the injured persons but in front of the flour mill of Lala Krishan, Chandra Kali succumbed, to her injuries. Then, they took her dead body to the Policy Station where Ram Swarup lodged the F. I. R by oral narration. A case was registered and investigation started by S. I. Azhar Ali to be concluded by S. I. Murari Lal Sharma, PW 7, after preparation of inquest report and other necessary papers the dead body was sealed and sent for post mortem. ( 7 ) THE injuries of Khem Karan, Rameshwar, Ram Singh, Chhidammi and Kamla were examined on 18. 7. 1979. Kamla had received gunshot injuries which were simple. Chhidammi sustained an abraded contusion which was, simple, Ram Singh received punctured wound as also other injuries of blunt object. All of then were simple, Rameshwars injuries were in the form of contusions and punctured wound but all were simple. 7. 1979. Kamla had received gunshot injuries which were simple. Chhidammi sustained an abraded contusion which was, simple, Ram Singh received punctured wound as also other injuries of blunt object. All of then were simple, Rameshwars injuries were in the form of contusions and punctured wound but all were simple. Khem Karan received incised wound and other injuries of blunt object. His injuries were Kept under observation. ( 8 ) A cross F. I. R. was also lodged on 17. 7. 1979 at 10 P. M. by Gulzari accused. The cross version was that Balak Ram and others were quarrelling with Ram Swarup, Rameshwar, Ram Singh and ram. Autar over partition. He (Gulzari) intervened but Ram Swarup, Rameshwar. Ram Singh and Ram Autar assaulted him with lathis. He fell down on the grounds. His sons Ram Khilauna and Ram Nath came rushing to his rescue but they were also assaulted by tathis and kanta. On shouts, the witnesses Ram Swarup (son of Munna Lal), Banwari (son of Dular) and Ajuddhi came and saved him and others on his side. ( 9 ) THE accused Ram Khilauna had received incised wound and other injuries of blunt object. Balak Ram too had received incised wound. Ram Nath had received blunt object injuries and so were the injuries of Gulzari. ( 10 ) THE investigation in the cross case, was also done by the same Investigating Officer S. I. Murari Lal Sharma, PW 7 who submited chargesheet in that case too. ( 11 ) THE prosecution in all examined seven witnesses out of whom Pothi Pw 2, Rameshwar PW 3, :ram Singh PW 4 and Ram Swarup PW 5 were the eyewitnesses. However. Pothi PW 2 turned hostile and did not support the prosecution case at all. According to him, he was not present on the clay of incident in his village and did not witness any incident. ( 12 ) THE defence was of denial. As per defence, the prosecution side was said to be the aggressor. ( 13 ) THE evidence of the prosecution did not find favour with the trial Judge who recorded acquittal. ( 14 ) WE have heard Sri R. S. Sengar, A. G. A. from the side of the State and Sri P. N. Misra from the side of accused respondents. ( 13 ) THE evidence of the prosecution did not find favour with the trial Judge who recorded acquittal. ( 14 ) WE have heard Sri R. S. Sengar, A. G. A. from the side of the State and Sri P. N. Misra from the side of accused respondents. According to A. G. A. , the evidence adduced by the prosecution was Wholesome, establishing the guilt of the accused respondents and the trial Judge was in error in recording acquittal. The record of the case is before us and we have carefully scrutinized the evidence on record. ( 15 ) IT is the basic principle of criminal law that the prosecution has to prove its case beyond reasonable doubt. To begin with the prosecution evidence should, therefore be tested on the anvil of probabilities keeping in view the attending circumstances. In the occurrence, one lady died of gunshot injuries on the prosecution besides another one suffering simple gunshot injuries, four others, namely, Ram Swarup, Ram Singh. Khem Karan and Chhidammi also received injuries on the prosecution side. Some of them were of blunt object and others of sharp edged weapons. It is also undisputed that on the side of the accused, too, there! were four injured, namely. Gulzari, Ram Khilauna, Ram Nath and Balak Ram accused. As we have noted above, the only independent witness Pothi PW 2 turned hostile and did not support the prosecution case. The other three eyewitnesses, namely; Rameshwar PW 3. Ram Singh : PW 4 and Ram swarup pw 5 are real brothers and one of them namely Ram his cross-examination that the accused persons went away after Swarup is the informant too. No doubt, Rameshwar and ram Singh are injured also. But that only guarantees their presence at the spot. ( 16 ) IT is to be taken note of that the F. I. R. is inordinately delayed which has not properly explained as rightly held by the ;trial Judge. The explanation offered was that the accused persons were lying in wait for the complainant party and for their fear, they could not go to lodge the F. I. R. in the night. This explanation could ;not answer the test of acceptability. In his deposition before the court, Rameshwar PW 3 stated that he did not know as to who was lying in wait in the way. This explanation could ;not answer the test of acceptability. In his deposition before the court, Rameshwar PW 3 stated that he did not know as to who was lying in wait in the way. Nor could he say as to how many persons were so lying in wait. He admitted that the complainant party did not start from the house itself in the night. He added that the information that the accused were lying in wait was given by ram Autar who had retrned from the city. He, however, admitted that ram Autar did not disclose as to how many persons were lying in wait and where. Admittedly, no incident occurred with Ram Autar. It is also significant to point out that ram Autar was co-accused in the cross F. I. R. On the other hand, ram Swarup pw 5 stated in his cross examination that ;ram Murti had ;come from the city in the evening and advised him not to go to the police station as the Rasta was blocked. He also stated that Ram autar had also informed about the lying of the accused in the way. The explanation offered for the late lodging of the F. I. R. coming through the testimony of these two eyewitnesses was too weak to be believed. Cross F. I. R. had been lodged by gulzari on the day of incident itself at 10 p. M. There was sufficient time for deliberations and concoctions to rope in innocent persons too in the F. I. R. lodged by the prosecution after inordinate delay next day at 5 A. M. ( 17 ) IT is next to be noted that the root couse of the incident was to be found in the issue of possession over the land towards the east of the house of the complainant party. The complainant party claimed possession over the said land while according to defence, it was Chheda accuse who was in possession over the same. Several circumstances were lined up to deslodge the claim of possession made by the complainant side. The complainant party claimed possession over the said land while according to defence, it was Chheda accuse who was in possession over the same. Several circumstances were lined up to deslodge the claim of possession made by the complainant side. Though the house of the complainant party was adjoining to the disputed land, but there were no regular door in the eastern wall of the complainants house, meaning there by that the house of the complainant was separated from the eastern complainant and two doors in the southern side in the house of the complainant and two doors in the southern side. They were regular doors. Obviously if the eastern land belonged to the complainant, there would have ordinarily been a door to that side too. It was in the testimony of the Investigating officer S. I. Murare Lal Sharma, PW 7 that the eastern wall was simply lying in demolished condition. Rameshwar denied that eastern wall had fallen down and they started coming out from that side as also the fact that the prosecution side tried to take possession over the eastern land by breaking the eastern wall. The absence of a regular door in the eastern side indicated the absence of title or use of eastern land in question in favour of the complainant party. From the side of the accused, there was statement of everyone that the eastern land was of chheda accused. The defence case was that between the branches of Neety, Pirthi and tilok there was a partition of ancestral land and in that partition, the meddle land came to Tilok in which the house of the present complainant party was constructed: that the western land came to Neetu and the eastern land came to the share of Pirthis branch to which Chheda belonged Rameshwar nearly admitted that to the west of the house of the complainant party was the land of Neety. Ram Swarup complainant also admitted in paragraph 12 of his statement that to the west of their house, the sons of Neetu had made constructions in land, though he stated that it was to the house of Kalloo and Tursam. He also stated that it was to the west of the house of Kalloo and tursam. He also stated that the said land was with Neetu from before he acquired the age of descretion. He also stated that it was to the west of the house of Kalloo and tursam. He also stated that the said land was with Neetu from before he acquired the age of descretion. So, the possibility of the eastern land being of Chheda accused could not be ruled out. About the land of complainants house, the claim of Rameshwar was that it was taken from munshi Lal but there was no document in this behalf. As per Rameshwar PW 3, Sri Ram and rishi Pal were two sons of Munshi Lal. It is a matter of record that none of these two heirs of munshi Lal came forward to support the claim of the prosecution. We are in agreement with the trial judge that the statements of the three prosecution witnesses on the question of possession could not be accepted under these circumstances. The circumstances strongly indicated that the eastern land was in possession of Chheda accused. ( 18 ) AS to the actual occurrence, the testimony of three eyewitnesses (real brothers who are obviously to be termed as interested) suffers from inherent improbalities and incongruities. The prosecution story was that when Rameshwar came. Chheda assaulted him and when Khem Karan came, he was also assaulted. When Chhidammi and Ram Singh came, they were likewise assaulted. The circumstances being indicative of the fact that actually Chheda was in possession of the disputed eastern land, it could justifiably be inferred that these persons wanted to disturb his possession one after the other and he inflicted simple injuries on their persons acting in self-defence of right of property. And all those who joined him also exercised the same right. According to the prosecution, it was chheda who started the assault and it was at his instance that others came and joined in the assault. ( 19 ) RAMESHWAR PW 3 testified that he was beaten by Chheda accused with lathi. He did not say that anyone else inflicted injury on his person. Medical examination indicated that there were two punctured wounds on his body which could have been caused only some sharp pointed weapon. The story as given by rameshwar PW 3 does not explain his punctured wound. As noted above, there were admittedly injuries on the persons of four accused. Medical examination indicated that there were two punctured wounds on his body which could have been caused only some sharp pointed weapon. The story as given by rameshwar PW 3 does not explain his punctured wound. As noted above, there were admittedly injuries on the persons of four accused. All the three prosecution witnesses of fact, Rameshwar PW 3, Ram Singh PW 4 and Ram Swarup PW 5 admitted it. However, the prosecution F. I. R. did not explain the injuries of these four accused. In the F. I. R. did not explain the injuries of these four accused. In the F. I. R. there was no mention whatsoever that anyone from the prosecution side used any weapon in self-defence against any of the accused persons, much less that they actually inflicted bodily injuries on any of them. Improvement was made at the trial stage when prosecution witnesses started claiming that ram singh and Chhidammi used lathis in their self-defence. Rameshwar and Ram Swarup also started claiming that Ram Singh and Chhidammi were carrying unusual lathis, i. e. . Ram Singh was carrying a Nagphani lathi while Chhidammi was carrying gulai lathi. Nothing of the kind was mentioned in the F. I. R. and it was obviously an improvement at the trial stage as an unsuccessful attempt to explain the injuries of four accused persons. Ram Singh PW 4 himself did not give this special description of lathi, though he stated about the use of lathis by him and Chhidammi in self-defence. So, the injuries on the persons of the four accused were not explained even though an improvement was attempted at trial stage. This factor also gave a serious jerk to the prosecution case and probabllized the plea taken by the defence. The prosecution, rightly speaking, had suppressed the genesis and origin of the occurrence, not presenting the true version. We should state that the injuries sustained by the accused respondents were not insignificant or superficial which could be ignored. ( 20 ) INTERESTED testimony of the three witnesses did not find support from any independent evidence. It may be stated at the risk of repetition that the only independent witness Pothi PW 2 turned hostile. We should state that the injuries sustained by the accused respondents were not insignificant or superficial which could be ignored. ( 20 ) INTERESTED testimony of the three witnesses did not find support from any independent evidence. It may be stated at the risk of repetition that the only independent witness Pothi PW 2 turned hostile. It could not be accepted that Ram Singh and Chhidammi using lathis could gave caused as many as 21 injuries to the four accused persons out of which some were of blunt object and some of sharp edged weapon. It is evident that ram Khilauna received as many as 11 injuries including two incised wounds. As per prosecution, he was armed with a Kanta. If Ram Khilauna was armed with a Kanta, it was difficult to believe that he could receive so many injuries on his body. Further, in case of ram Nath accused, as per the prosecution story he was carrying a gun with him. It spills beyond comprehension that he, armed with a gun, could have received six injuries on his person. One would not dare come near him while he had a weapon like gun. Rameshwar PW 3 admitted in his cross-examination that the accused person went away after firing. It suggested that the injuries had been received by she members of both the sides before firing. The circumstances indicated that the members of the accused party did not have fire arm with they) at the time of when they were being assulted by the complainant side. The person or persons carrying firearm must have appeared at the spot after the assault had already started and continued for some time. Firing was the end of the fight. Two innocent females of the prosecution side received shots as they happened to be at their door following the shouts and commotion. though not participating in the incident. Though cross F. I. R. was silent about the firing, but the speaking circumstances revealed from the prosecution evidence gave the clue that in all. probabilities, the prosecution side was the aggressor and it has to blame itself for the fallout. It was also shrouded in doubtful circumstances as to who out of the accused fired the shot or shots which injured the two ladies and took the life of one of them. probabilities, the prosecution side was the aggressor and it has to blame itself for the fallout. It was also shrouded in doubtful circumstances as to who out of the accused fired the shot or shots which injured the two ladies and took the life of one of them. If a gun had falsely been shown with Ram Nath, it could falsely be shown with Jamadar accused respondent also. ( 21 ) IN view of the above discussion, we agree with the finding of acquittal recorded by the learned trial court on thorough analysis of the evidence and Concomitant circumstances. The acquittal is based on the voice of record and does not call for any interference in appeal. ( 22 ) THE appeal is hereby dismissed. ( 23 ) CERTIFY the judement to the lower court. . .