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Allahabad High Court · body

2017 DIGILAW 163 (ALL)

RAMMOO v. STATE OF U. P.

2017-01-12

ALOK KUMAR MUKHERJEE, BHARAT BHUSHAN

body2017
JUDGMENT : (Delivered by Hon'ble Bharat Bhushan, J.) 1. Challenge in this Criminal Appeal is judgment and order dated 11.11.1983 passed by Special Judge (E.C.Act) Banda in Sessions Trial No. 52 of 1983 (State versus Rammoo and another) under sections 302 read with section 34 Indian Penal Code (in short, IPC), arising out of Case crime no. 8 of 1982 Police Station (in short, P.S.) Raipura, District Banda whereby appellants have been convicted under Section 302 read with Section 34 IPC and sentenced to undergo imprisonment for life. 2. Prosecution story, in brief, is that deceased Udhav Prashad @ Chunku son of informant Ram Bhawan (PW-2) confined some cattle belonging to appellant Rammoo Brahmin to cattle pound Raipura after damage of his crops by cattle. Appellant-accused Rammoo possessed a house at Madnahar where he used to keep criminal elements. The incident of impounding of cattle and depositing them in cattle pound created animosity between Rammoo and deceased Udhao Prashad @ Chunku. On 14.2.1982 at about 4.30pm informant Ram Bhawan (PW-2) his deceased son Udhao Prasad, Heeralal (PW-4)and Bhoora (PW3) were cutting green fodder from their fields, at a distance of two miles from the village. Suddenly appellant Rammoo, Kailash, late Chunkeni and late Jagman emerged from Arhar field of Natthu Kalar. Late Chunkeni and Jagman were holding single barrel guns, while appellant Kailash and Ramoo were armed with Pharsa (spear) and Lathi respectively. Chunkeni hailed deceased Udhao Prasad and questioned him as to why cattle belonging to Rammoo were impounded and deposited in cattle pound. Udhao Prasad simply explained that cattle belonging to Rammo were damaging his crops and therefore, he deposited in the cattle pound. Appellant Rammoo instigated Chunkeni to avenge his humilation. Whereupon Chunkeni shot deceased Udhao Prashad who fell down and died instantaneously. Prosecution further says that Ram Bhawan, father of the deceased, and his companions challenged the desperadoes but accused person branished their fire arm weapon extending threats. It is stated that in order to deter informant and his companions, co-accused Jagman also opened fire. Informant as well as witnesses got frightened and could not go near the accused persons who thereafter left the place of occurrence. 3, Prosecution says that deceased Udhao Prashad died immediately. Some other folks namely Sahdev, Amarnath etc. also reached the place of occurrence. They also witness the incident. Informant as well as witnesses got frightened and could not go near the accused persons who thereafter left the place of occurrence. 3, Prosecution says that deceased Udhao Prashad died immediately. Some other folks namely Sahdev, Amarnath etc. also reached the place of occurrence. They also witness the incident. Informant Ram Bhawan dictated the First Information Report (in short, FIR) (Ex Ka-2) to one Ramphal and thereafter lodged it at Police Station (in short P.S.) Raipura, District Banda at 6:10pm i.e. within 100 minutes of incident at a police station, which was 9 K.M. away from the the place of occurrence. A chick report (Ex Ka-3) was carved out by police personnel and requisite entry was made in the general diary (in short G.D.) (Ex Ka-4) and thereafter Investigating Officer Amardev Singh (PW-7) left for place of occurrence for investigation after making relevant entries (Ex Ka-7) in the G.D. of police station. It is stated that statement of informant Ram Bhawan and village Chaukidar Bhuttoo, who had accompanied informant were recorded by the investigation officer (in short, I.O.) before departing for place of occurrence. 4. I.O. reached the place of occurrence in the same night, however, he could not prepare inquest report due to paucity of light. Therefore, two constables Rampal Singh (PW-6) and Kripal Singh were stationed with cadaver of deceased while I.O. tried to apprehend the accused persons but failed. 5. Next day i.e. 15.1982 at about 6:30am inquest proceedings were initiated in presence of witnesses. Inquest report (Ex Ka-9) was prepared. Photolash (Ex.Ka-10), Challan Lash (Ex. Ka-11) and report for postmortem of cadaver of deceased was sent along with all relevant papers to mortuary through constable Rampal Singh (PW-6) and Kripal Singh. 6. Other recovered articles were also taken into possession. Statements of other witnesses were recorded, and thereafter site plan (Ex. Ka-14) prepared and thereafter a charge sheet Ex. Ka 16) was submitted against Rammoo and Kailash. 7. It is pertinent to point out that main assailants namely Chukeni and Jagmal admittedly later on died in police encounter. 8. Trial Judge charged both appellants under section 302 read with section 34 IPC on 29.6.1983. Appellant denied all the charges and claimed to be tried. 9 Prosecution adduced evidence of 7 witnesses during trial, namely, PW-1 Dr. 7. It is pertinent to point out that main assailants namely Chukeni and Jagmal admittedly later on died in police encounter. 8. Trial Judge charged both appellants under section 302 read with section 34 IPC on 29.6.1983. Appellant denied all the charges and claimed to be tried. 9 Prosecution adduced evidence of 7 witnesses during trial, namely, PW-1 Dr. Vedprakash Sharma, PW-2 Ram Bhawan (informant), PW-3 Bhura (stated eye witness), PW-4 Heera Lal (stated eyewitness), PW-5 Constable Prem Narain (recorded FIR), PW.6 Constable Rampal Singh (took cadaver for autopsy), and PW-7 S.I. Amardev Singh (I.O). The statements of appellants were recorded under Section 313 Cr.P.C. wherein they denied all the allegations and claimed false implication on account of previous enmity. 10. Special judge (E.C. Act) Banda found available evidence against the appellants sufficient for holding them guilty under section 302 read with Section 34 IPC. Therefore, they were convicted and sentenced to undergo life imprisonment by judgment and order dated 11.11.1983. This judgment is under challenge in this appeal. 11. Heard Sri Gopal Swaroop Chadurvedi learned Senior Advocate, assisted by Prashant Vyas holding brief of Shri Shishir Tandon appearing for appellant no. 1 Rammoo, Indra Kumar Chadurvedi, learned counsel appearing for appellant no.2 Kailash and Shri Syed Ali Murtuza, learned Additional Government Advocate (in short, AGA). 12. Learned Senior Counsel for the appellants has submitted that appellants have not been attributed any role in the murder of deceased Udhao Prashad. Submission is that deceased was done to death by Chukeni. Second shot was fired by Jagmal to keep the witnesses at bay but the entire evidence does not attribute any role to appellants in the stated crime. Learned Senior counsel for the appellants has further argued that in absence of any specific role, the mere presence of appellants Rammoo and Kailash would not be sufficient to convict them with the aid of section 34 IPC. Counsel for appellants has also claimed that in view of admitted animosity between the rival parties, the evidence of informant and any of the eyewitnesses should be discarded especially in the light of significant discrepancies in the prosecution evidence. Counsel for appellants has also claimed that in view of admitted animosity between the rival parties, the evidence of informant and any of the eyewitnesses should be discarded especially in the light of significant discrepancies in the prosecution evidence. Learned Senior counsel for appellant Rammoo has further submitted that identity of Rammoo has not been established by prosecution at the place of occurrence as eyewitnesses were at a considerable distance and prosecution evidence reveals that one of the miscreant had used clothes to muffle his face, therefore, it was incumbent upon the prosecution to establish the identity of all the criminals. 13. Per contra, Sri Murtuza has argued that animosity is admitted to both the parties, therefore, the evidence of PW-1 Ram Bhawan is highly credible. It would be virtually impossible for a father to implicate the innocent persons and spare the real culprits. He has also argued that testimony of PW-2 Ram Bhawan has been supported by the evidence of PW-4 Heera Lal. He has also argued that individually the appellants did not participate in the murder of the deceased. However, their role in the death of deceased is apparent. In fact, appellant Rammoo instigated Chukeni to seek revenge on his behalf. Chukeni in the wake of his exhortation, did precisely that. Therefore, the appellants can not escape from the responsibility of their act and both of them have been rightly convicted by the trial Judge with the aid of section 34 IPC. 14. The prosecution evidence indicates that deceased Udav Prasad alias Chunku son of PW-1 Ram Bhawan died on account of fire-arm injuries. The postmortem report (Ex.Ka-1) and testimony of PW-1 Dr. Ved Prakash Sharma establish the fact that deceased Udav Prasad sustained fire-arm injuries, resulting in his death. This medical report is in consonance with the story enshrined in chik report (Ex. Ka. 3) and testimony of PW-1 Ram Bhawan. The prosecution story says that deceased was shot dead by co-accused Chukeni on 14.2.1982 at about 4:30pm in the agricultural field where the deceased and informant Ram Bhawan were cutting green fodder. The medical report (Ex.Ka.-1) discloses one gun shot wound of entry 3cm x 2 ½ on abdomen left hypochondrium 6" above and left to umbilicus at 10 O'clock position. Irregular Margins everted. Blackening and tattooing present. During autopsy 6 pellets and 2 wadding were found from the cadaver. The medical report (Ex.Ka.-1) discloses one gun shot wound of entry 3cm x 2 ½ on abdomen left hypochondrium 6" above and left to umbilicus at 10 O'clock position. Irregular Margins everted. Blackening and tattooing present. During autopsy 6 pellets and 2 wadding were found from the cadaver. Doctor has opined that death was due to shock and hemorrhage as a result of ante-mortem injury. He has affirmed the possibility of death having been caused on 14.2.1982 at 4:20pm. 15. PW-1 Dr. Ved Prasad Sharma found following injuries on the person of deceased :- (1) Gun shot wound of entry 3cm x 2 ½ cm on abdomen left hypochondrim 6" above and left to umblicus at 10 O'clock position. Irregular margins everted. Blackening and tatooing present. Direction left to right (oblique) 8" small intestine protruding through the wound. He recovered 6 pellets from the dead body and sealed the same. In his opinion the death was due to shock and haemorrhage and as a result of ante mortem injury. He has stated that there was possibility of the death having been caused on 14.2.1982 at 4.30 P.M." 16. Aforesaid evidence is in consonance with the original prosecution story. There is nothing on record to suggest that deceased died in any other manner. In fact, no such claim has been made on behalf of appellants. Therefore, we have no hesitation to conclude that deceased Udai Prasad died due to homicide. 17. Second question arises as to who was responsible for the murder of deceased Udai Prasad. Even this question is easy to answer. For example, FIR itself claims that co-accused Chukeni shot dead deceased Udhav Prasad. Later on, co-accused Jagman also fired shot from his single barrel gun in order to keep the eyewitnesses at bay but his weapon did not cause any injury either to deceased Udhav Prasad or any witness. The FIR does not disclose any active role in the murder of deceased as far as appellant no. 1 Rammoo and appellant no. 2 Kailash are concerned. Evidence demonstrates that both of them were present at the place of occurrence at the time of murder. Rammoo was holding lathi while Kailash was armed with Pharsa but there is not whisper about their any overt act as far as death of deceased Udhav Prasad alias Chinku is concerned. 1 Rammoo and appellant no. 2 Kailash are concerned. Evidence demonstrates that both of them were present at the place of occurrence at the time of murder. Rammoo was holding lathi while Kailash was armed with Pharsa but there is not whisper about their any overt act as far as death of deceased Udhav Prasad alias Chinku is concerned. The FIR says that appellant Rammoo asked Chukeni to avenge him but Rammoo did not use his own stated weapon or was any attack was made by appellant Kailash, holder of Pharsa. 18. PW-2 Ram Bhawan, father of the deceased, has given similar story. He has stated that on the date of occurrence, appellants Rammoo, Kailash, late Chukeni and Jagman emerged from Arhar field of Nathu Kalar. Chukeni hailed deceased Udhav Prasad who went to have conversation with him. Chukeni questioned deceased Udhav Prasad about impounding and deposition of cattle to cattel pound. PW-1 Ram Bhawan stated that Rammoo instigated Chukeni to avenge his insult. The prosecution has produced three eyewitnesses in support of this story. PW-3 Bhura has refused to support the prosecution story in this regard. He has denied the allegation that appellants participated in the murder of deceased Udav Prasad but this statement can be ignored for the simple reason that PW-3 Bhura was said to be at his residence at the time of murder of Udav Prasad. This fact has been conceded by PW-3 Bhura himself. It is, therefore, clear that evidence of PW-3 Bhura in this regard is merely based on hearsay. He has neither supported the prosecution case nor he has been able to clear accused persons because he was admittedly not present on the spot at the time of stated crime. 19. PW-4 Heera Lal is admittedly son of his real brother Inder Pal, meaning thereby PW-4 Heera Lal is nephew of Ram Bhawan (informant) and was cousin of deceased Udhav Prasad yet the evidence given by PW-4 Heera Lal creates doubt about the vacacity of prosecution evidence. 20. PW-4 Heera Lal has testified that on the day of occurrence, four persons emerged from Arhar field of Nathu Kalar but he could recognize only three persons. He has specifically named only Jagman, Chukeni and Kailash. Accordingly, Jagman and Chukeni were armed with single barrel guns and appellant Kailash was holding Pharsa but he disputed the presence of appellant Rammoo. 21. He has specifically named only Jagman, Chukeni and Kailash. Accordingly, Jagman and Chukeni were armed with single barrel guns and appellant Kailash was holding Pharsa but he disputed the presence of appellant Rammoo. 21. He has further claimed that he was cutting fodder from his own farm at the time of incident. He claims to have been only 15 paces away from the accused persons. He did witness summoning of Udhav Prasad by Chukeni. He has supported the prosecution story saying that Chukeni fired at Udhav Prasad and Udhav Prasad fell down. They challenged miscreants but Chukeni threatened them and co-accused Jagman opened fire in the air to deter them. He has conceded that he could failed to catch assailants because of terror. This witness has stated that deceased Udav Prasad died on account of single fire-arm injury. But this witness has also specifically asserted in the examination-in-chief itself that he did not recognize appellant Rammoo. He has reiterated during cross-examination that fourth man had covered his face with cloth and only his eyes were visible. Prosecution has produced three witnesses in support of its story, out of which two witnesses have not supported the presence of appellant Rammoo at the place of occurrence at the time of crime. PW-4 Heera Lal is, in fact, interested witness to say the least being cousin of Udhav Prasad yet he refused to give unflinching support to the story of involvement of appellant Rammoo in the stated crime. 22. The testimony of PW-4 Heera Lal creates further problem for prosecution. The prosecution story as well as testimony of PW-1 Ram Bhawan say that a report was lodged on the same day at about 6:10pm in the night and that he was questioned by I.O. The submission on behalf of prosecution is that I.O. reached at the village of occurrence at 7:30pm and at the place of occurrence at about 8:00pm. This fact has been asserted by PW-1 Ram Bhawan and similar statement has been given by P-7 Amar Deo Singh(I.O.), who testified that he reached the place of occurrence on the same night but could not prepare inquest report on account of paucity of light. On the next day, inquest proceedings were initiated at 6:30am on 15.2.1982 and completed by 8:30 am. Cadaver was dispatched for autopsy in the morning. On the next day, inquest proceedings were initiated at 6:30am on 15.2.1982 and completed by 8:30 am. Cadaver was dispatched for autopsy in the morning. PW-6 Ram Pal Singh has supported testimony of I.O. by saying that cadaver of deceased was handed over to him and his companion Kripal Singh at 8:30pm on 15.2.1982 and that he took cadaver to Karvi lockup and thereafter, Karvi Hospital. Doctor was not present, therefore, postmortem was conducted on 16.2.1982 at about 10:20am. The extract of G.D. (Ex.Ka-7) also discloses that I.O. left for place of occurrence on 14.2.1982. 23. All said documents and prosecution evidence claim that I.O. reached the place of occurrence on 14.2.1982, but failed to conduct inquest proceedings due to paucity of light. Surprisingly this story is not supported by PW-4 Heera Lal, stated eyewitness. He claims that he met I.O. on the next day i.e. 15.2.1982 somewhere around 9:00am-10:00am. He claims that I.O. sent him to village for summoning the witnesses for inquest proceedings. He denied the suggestion that cadaver was sent for autopsy in his absence. The story of Heera Lal is different. He claims to have met I.O. on 15.2.1982 at about 9:00am-10:00am. then he went to village for summoning witnesses for inquest proceedings, meaning thereby the inquest proceedings started after 10:00am. This conclusion is contrary to the original prosecution story which says that cadaver was dispatched for autopsy by 8:30am. This discrepancy has not been explained by prosecution. If Heera Lal was despatched by I.O. to village for summoning inquest witnesses at 10:00am on 15.2.1982, then it was impossible to conclude inquest proceedings at 8:30am. This creates serious flaw in the prosecution version and evidence. We are convinced that this is deteriminal to the prosecution case. 24. But aforesaid discrepancy is not only problem for the prosecution, another fatal piece of evidence is enshired in paragraph-3 of testimony of PW-4 Heera Lal wherein Heera Lal, cousin of Udhav Prasad, has given another significant adverse blow to the prosecution case. He has testified in paragraph-3 of his deposition that after murder of Udhav Prasad, he along with informant stayed at the place of occurrence after murder for another half an hour (½ hour). Then this witness PW-2 Ram Bhawan informant (father of deceased) went to their village in next half an hour (½ hour). He has testified in paragraph-3 of his deposition that after murder of Udhav Prasad, he along with informant stayed at the place of occurrence after murder for another half an hour (½ hour). Then this witness PW-2 Ram Bhawan informant (father of deceased) went to their village in next half an hour (½ hour). This witness has stated that they called village Chaukidar at his residence, then village Chaukidar went to secure the cavader lying at considerable distance but surprisingly Heera Lal and Ram Bhawan, both close relatives of deceased Udhav Prasad, went to their own residences and spent whole night at their residences. This witness has stated that they went to Police Station next day in the morning about 9:00am. This testimony is very important. As stated earlier that Heera Lal is not ordinary witness but was cousin of deceased Udhav Prasad and nephew of Ram Bhawan (PW-2). He has completely demolished the prosecution story without realising it. If informant PW-2 Ram Bhawan and PW-4 Heera Lal went to Police Station on 15.2.1982 at 9:00am, then lodging of FIR on 14.2.1982 at 6:10pm becomes doubtful and ante-timed. In fact, it creates doubt about every document created by I.O. subsequent to murder of deceased Udhav Prasad. If informant and PW-4 Heera Lal lodged FIR on 15.2.1982 after 9:00am, then varacity of inquest report and entries of G.D. of Police Station become vitiated and tainted. This statement of PW-4 Heera Lal knocks bottom of prosecution case. It is pertinent to point out that prosecution has produced three witnesses of fact. PW-3 Bhura has not supported the prosecution version at all. He has claimed that he was not present at the place of occurrence that leaves only two witnesses, namely, PW-2 Ram Bhawan and PW-4 Heera Lal, both of them, close family members of deceased Udav Prasad. Both claimed to be present at the place of occurrence yet their testimony is totally contrary to each other. These discrepancies are not minor in nature. They affect the very root of prosecution case. If evidence of Heera Lal is accepted, then whole prosecution story and evidence of PW-2 Ram Bhawan, evidence of police personnel and official documents created subsequent to murder of deceased Udhav Prasad become unrealiable and untrustworthy. The credibility of prosecution evidence has taken sighnificant hit. 25. This contradictions indicate that an attempt was made to creat and manufacture evidence. If evidence of Heera Lal is accepted, then whole prosecution story and evidence of PW-2 Ram Bhawan, evidence of police personnel and official documents created subsequent to murder of deceased Udhav Prasad become unrealiable and untrustworthy. The credibility of prosecution evidence has taken sighnificant hit. 25. This contradictions indicate that an attempt was made to creat and manufacture evidence. The genesis of prosecution story becomes doubtful. There is no doubt that deceased Udhav Prasad was murdered but whether his assassination was witnessed by stated eyewitnesses is doubtful. 26. It is pertinent to point out that out of two surviving appellants, appellant Rammoo has not been recognised by two witnesses of fact, out of three. Appellant Kailash was allegedly holding Pharsa, which is sharp edged weapon. No sharp eged injury was found on the person of deceased who died on account of gunshot wound. The blackening and tattooing indicate that deceased was shot by close range. We believe that presence of witnesses on the spot is doubtful. Their testimonies are not credible. The genesis of prosecution story is shrouded with mystery. Attempt to create and manufacture evidence is palpable. We believe that it is not safe to rely upon prosecution evidence. Under the circumstances, we have no option but to set aside the impugned judgment and order. 27. It is pertinent to point out that appellants were not convicted on account of their overt act. They were convicted with the aid of Section 34 IPC, as stated above. We do not believe that their presence on the spot has been established by trustworthy evidence. Even for argument sake, it is accepted that they were present on the spot, still there is no evidence to demonstrate that they shared the intention of late Chukeni to murder the deceased Udhav Prasad. We are convinced that the evidence of prosecution is not reliable and, therefore, impugned judgment and order of trial court is liable to be set aside. 28. In the circumstances, this criminal appeal is allowed. The impugned judgment and order 11.11.1983 passed by Special Judge (E.C.Act) Banda in Sessions Trial No. 52 of 1983 (State versus Rammoo and another) arising out of Case crime no. 8 of 1982 P.S. Raipura, District Banda is set aside and appellants Rammoo and Kailash are acquitted of charge under Section 302 read with Section 34 IPC. They need not surrender if they are on bail. 8 of 1982 P.S. Raipura, District Banda is set aside and appellants Rammoo and Kailash are acquitted of charge under Section 302 read with Section 34 IPC. They need not surrender if they are on bail. Their bail bonds are cancelled and sureties are discharged. 29. Office is directed to certify this judgment to the concerned court through Sessions Judge, Banda within 15 days. The trial court shall, thereafter, report compliance of the judgment within one month.