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Allahabad High Court · body

2019 DIGILAW 1295 (ALL)

Banarasi Ram Yadav v. State of U. P.

2019-05-13

ALI ZAMIN, B.K.NARAYAN

body2019
JUDGMENT : 1. Report of C.J.M. Allahabad dated 10.4.2018 which is on record indicates that appellant No. 1, Banarsi Ram Yadav in this appeal has died and in view of the above this appeal qua appellant No. 1, Banarsi Ram Yadav is dismissed as abated. 2. Heard Sri Rajiv Kumar Mishra, learned amicus curiae for Salig Ram Yadav A2 and Tulsi Ram Yadav A3 and Sri J.K. Upadhyay, learned A.G.A. appearing for the State-respondent. 3. This appeal has been preferred by Banarsi Ram Yadav (deceased A1), Salig Ram Yadav A2 and Tulsi Ram Yadav A3 against the judgment and order dated 6.7.1989 passed by 9th Additional Sessions Judge, Allahabad convicting and sentencing Banarsi Ram Yadav A1 and Salig Ram Yadav A2 for imprisonment of life under Section 302/34 and Tulsi Ram Yadav A3 for life imprisonment under Section 302 I.P.C. 4. The facts of this case may be stated briefly, as hereunder. 5. On 21.11.1985 at about 20:30 hours, PW-1 Sangru Ram Yadav (informant) gave a written report of the incident Ext. Ka1 at P.S. Sarai Inayat, district Allahabad stating therein that while he, his nephew-Laddu Yadav son of Nanku @ Shambhu Yadav and PW-3 Mauji Ram Yadav son of Ram Jatan Yadav residents of the same village as the first informant were returning from Allahabad on their bicycle to their home, Laddu Yadav was ahead of them while first informant and PW-3 Mauji Ram Yadav were behind him. As soon as they reached near the maize field of Sundar Yadav in village Jhunsi Kohna at about 7:30 p.m. Tulsi Ram Yadav A3, Banarsi Ram Yadav (deceased A1) and Salig Ram Yadav A2 who were also the residents of the same village suddenly emerged from the maize field of Sundar Yadav and stopped the bicycle of Laddu Yadav and on the exhortation of Banarsi Ram Yadav (deceased A1) and Salig Ram Yadav A2 to kill Laddu Yadav, Tulsi Ram Yadav A3 shot Laddu Yadav on his chest from his country made pistol. Upon receiving the gunshot wound, Laddu Yadav fell on the ground. On the noise made by PW-1 Sangru Ram Yadav and PW-3 Mauji Ram Yadav, all the accused fled towards the village. The noise made by the informant and PW-3 Mauji Ram Yadav attracted Suddhu Ram Yadav, his nephew-Sanatan Yadav and Man Bahadur Yadav etc. Upon receiving the gunshot wound, Laddu Yadav fell on the ground. On the noise made by PW-1 Sangru Ram Yadav and PW-3 Mauji Ram Yadav, all the accused fled towards the village. The noise made by the informant and PW-3 Mauji Ram Yadav attracted Suddhu Ram Yadav, his nephew-Sanatan Yadav and Man Bahadur Yadav etc. also who were going to answer the call of nature to the place of occurrence. It was a moon lit night and the informant and the other witnesses had seen the accused firing at the deceased and then running away from the scene of occurrence and had identified them in the moon light. He took his injured nephew-Laddu Yadav to Krishna Nursing Home with the help of his relatives and other villagers where he was declared brought dead. About 8-10 days before the occurrence, the accused had beaten Laddu Yadav on account of his having misbehaved with the accused's sister and had threatened Laddu Yadav with dire consequences. 6. On the basis of the written report Ext. Ka1, case crime No. 310 of 1985, under Section 302 I.P.C. was registered at P.S. Sarai Inayat, district Allahabad against the appellants by PW-6 Head Moharrir Harendra Nath Singh who on the basis of the written report Ext. Ka1 prepared the check F.I.R. Ext. Ka15 and recorded the gist of the prosecution case in the G.D. vide rapat No. 39 time 8:30 p.m. date 21.11.1985. 7. The investigation of the case was taken up by PW-4 Ram Mishra who was posted as S.H.O. at the relevant point of time at P.S. Sarai Inayat. He conducted inquest on the body of de-ceased-Laddu Yadav in Krishna Nursing Home on 22.11.1985 at about 6-8 a.m. and after completing inquest, prepared inquest report and other related documents namely photo lash, challan lash, specimen seal Ext. Ka4 to Ext. Ka7, letter addressed to C.M.O. Ext. Ka9 and letter addressed to R.I. Ext. Ka10. He then got the dead body of Laddu Yadav sealed and dispatched for post-mortem examination. After completing inquest proceedings, he inspected the place of occurrence at the instance of PW-1 Sangru Ram Yadav and prepared its site plan Ext. Ka1. He then took into possession the bicycle of deceased-Laddu Yadav and PW-3 Mauji Ram Yadav and after inspecting the same, handed over the bicycle of PW-3 Mauji Ram Yadav to him and prepared the memo of supurdgi Ext. Ka12. Ka1. He then took into possession the bicycle of deceased-Laddu Yadav and PW-3 Mauji Ram Yadav and after inspecting the same, handed over the bicycle of PW-3 Mauji Ram Yadav to him and prepared the memo of supurdgi Ext. Ka12. The supurdgi of the bicycle of Laddu Yadav was given to PW-1 Sangru Ram Yadav and memo of supurdgi nama Ext. Ka2 was prepared by him on the spot. He also inspected the bicycle of PW-1 Sangru Ram Yadav and had thereafter given it in his supurdgi and prepared the memo of supurdgi Ext. Ka3. 8. The investigating officer after completing the investigation filed charge-sheet against all the accused before C.J.M. Allahabad on 10.12.1985 Ext. Ka13. It may be noted that Banarsi Ram Yadav A1 was arrested on 25.11.1985 while the other two appellants had surrendered before the Court and then sent to jail. 9. Since the offence mentioned in the charge-sheet was triable exclusively by the Court of Sessions Judge, C.J.M. Allahabad committed the accused-appellants for trial to the Court of Sessions Judge, Allahabad where case crime No. 310 of 1985 was registered as S.T. No. 226 of 1986, State vs. Banarsi Ram Yadav and Others and made over for trial from there to the Court of 9th Additional Sessions Judge, Allahabad who charged Banarsi Ram Yadav (deceased A1) and Salig Ram Yadav A2 under Section 302/34 I.P.C. while charge under Section 302 I.P.C. was framed against Tulsi Ram Yadav A3. 10. The prosecution in order to prove its case examined as many as seven witnesses out of whom PW-1 Sangru Ram Yadav, real uncle of the deceased, PW-2 Man Bahadur Yadav and PW-3 Mauji Ram Yadav were examined as eye-witnesses of the occurrence while PW-4 S.H.O. Ram Mishra, the investigating officer of the case, PW-5 Constable Mukut Bihari Mishra who had taken the dead body of Laddu Yadav from Krishna Nursing Home to Medical College admitted for post-mortem examination, PW-6 Constable Harendra Nath Singh, who had prepared the check F.I.R. and the relevant G.D. entry and PW-7 U.S. Sinha who had conducted the post-mortem on the body of the deceased on 22.11.1985 Ext. Ka20 were produced as formal witnesses. 11. The accused-appellants in their statements recorded under Section 313 Cr.P.C. denied the prosecution case as false and alleged false implication. They examined Shyam Narayan Pandey and Dr. Jagdish Chandra as DW-1 and DW-2 in their defence. 12. Ka20 were produced as formal witnesses. 11. The accused-appellants in their statements recorded under Section 313 Cr.P.C. denied the prosecution case as false and alleged false implication. They examined Shyam Narayan Pandey and Dr. Jagdish Chandra as DW-1 and DW-2 in their defence. 12. Learned 9th Additional Sessions Judge, Allahabad after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record both oral as well as documentary, convicted all the three appellants and awarded aforesaid sentences to them. 13. Hence this appeal. 14. Sri Rajiv Kumar Mishra, learned amicus curiae appearing for the appellants has submitted that no one had seen the incident and after the body of Laddu Yadav was discovered, the written report of the incident was scribed on the dictation of PW-1 Sangru Ram Yadav who is the real uncle of the deceased after due deliberations and consultations with the police falsely implicating the appellants due to previous enmity. He next submitted that out of three witnesses of fact produced by the prosecution during the trial to establish the charge framed against them, PW-3 Mauji Ram Yadav had failed to support the prosecution case at the trial and was declared hostile on the request of the D.G.C. (Criminal) and PW-2 Man Bahadur Yadav having categorically deposed that he had left the scene of the occurrence before the incident had taken place, the recorded conviction of the appellants on the basis of the evidence of solitary witness-PW-1 Sangru Ram Yadav without seeking corroboration from any other evidence is per se illegal and unsustainable in the eye of law as PW-1 Sangru Ram Yadav being the real uncle of the deceased was highly interested in securing the conviction of the appellants in view of the admitted previous enmity. He next submitted that the prosecution case does not corroborate the manner of assault as spelt out in the F.I.R. because the postmortem report of the deceased Ext. Ka20 does not indicate the presence of blackening or charring around the solitary fire-arm wound found on the body of the deceased, although the prosecution case is that the deceased had been shot by Tulsi Ram Yadav A3 after stopping his bicycle from a very close range. Ka20 does not indicate the presence of blackening or charring around the solitary fire-arm wound found on the body of the deceased, although the prosecution case is that the deceased had been shot by Tulsi Ram Yadav A3 after stopping his bicycle from a very close range. He next submitted that no blood having been found at the place of incident by the investigating officer and PW-1 Sangru Ram Yadav having failed to show the investigating officer his bloodstained clothes and the failure of the investigating officer to seize the bloodstained cot on which deceased was allegedly taken to the hospital from the place of incident, are circumstances which indicate that the incident had not taken place at the place mentioned in the F.I.R. He lastly submitted that such being the state of evidence, neither the recorded conviction of the surviving appellants nor the sentence awarded to them can be sustained and are liable to be set aside. 15. Per contra Sri J.K. Upadhyay, learned A.G.A. submitted that the complicity of the surviving appellants in committing the murder of Laddu Yadav is fully established from the evidence of RW-1 Sangru Ram Yadav. Evidence of RW-2 Man Bahadur Yadav corroborates the presence of all the three accused-appellants at the crime scene as he had deposed that he had seen them running away from the place of incident after he had reached there on hearing the noise made by RW-1 Sangru Ram Yadav and others. Moreover there is no law which lays down that a conviction cannot be recorded on the basis of evidence of a witness who is a relative of the deceased. The only safeguard which the Court is required to ensure while appreciating the evidence of a relative witness is that his evidence should be evaluated with great care and if upon a careful perusal of his evidence the Court comes to the conclusion that he has given a correct version of the incident then the evidence of such witness is not liable to be rejected merely on the ground of his being the relative of the deceased. He next submitted that the failure of the investigating officer to collect the blood from the place of incident or the blood stains on the cot on which the deceased was carried to the hospital or to seize the bloodstained clothes of PW-1 Sangru Ram Yadav are mere irregularities committed by the investigating officer during the course of investigation which will not enure to benefit of the accused-appellants. He lastly submitted that the conviction of the appellants recorded by the Learned Trial Judge is based upon cogent evidence and the sentence awarded to them is supported by relevant considerations. This appeal lacks merit and is liable to be dismissed. 16. The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubt or not? 17. Record shows that the incident had taken place on 21.11.1985 at 7:30 p.m. within the limits of village Jhunsi Kohna near the maize field of Sundar Yadav. It is alleged by the prosecution that Tulsi Ram Yadav A3 had shot Laddu Yadav on his chest from his country made pistol after stopping his bicycle on which he was returning to his home. The incident was allegedly witnessed by PW-1 Sangru Ram Yadav, PW-2 Man Bahadur Yadav and PW-3 Mauji Ram Yadav. The F.I.R. of the incident was registered on the same day at 20:30 hours at PS. Sarai Inayat. The postmortem on the body of deceased-Laddu Yadav was conducted by PW-7 Dr. U.S. Sinha in S.R.N. Hospital on 22.11.1985 at 3:30 p.m. who had also prepared his post-mortem report Ext. Ka20. PW-7 Dr. U.S. Sinha in his statement recorded before the trial Court deposed that he had noted one gunshot wound of multiple entrance over an area of 2" x 2" x thoracic cavity deep situated on the left side of chest in all around the left nipple each wound measuring 1/8" x 1/8." The cause of death according to him was the gunshot wound and according to his opinion the death had occurred about one day before the post-mortem examination. Upon internal examination of the deceased's body, he had noticed thoracic cavity was full of blood, lung and heart punctured by shots. Stomach full with pasty food. Bladder empty and NAD. Upon internal examination of the deceased's body, he had noticed thoracic cavity was full of blood, lung and heart punctured by shots. Stomach full with pasty food. Bladder empty and NAD. Six small pellets were recovered from heart and left lung and sent to S.S.P. Allahabad through C.M.O. Allahabad in a sealed envelope by him. 18. Thus, from the perusal of the medical evidence on record, it transpires that the deceased had died as a result of gunshot wound which was received by him about a day before the postmortem examination which was conducted on 22.11.1985 at about 3:30 p.m. 19. It has been contended by the learned amicus curiae that the medical evidence on record does not corroborate the time of incident mentioned in the F.I.R. According to the medical evidence, the deceased had died at around 3:30 p.m. while as per the prosecution version, the incident had taken place at 7:30 p.m. Moreover the post-mortem report of the deceased does not indicate the presence of any blackening, charring or tattooing around the fire-arm wound which totally falsifies the prosecution claim that the deceased was shot by Tulsi Ram Yadav A3 from a very close range. The aforesaid irreconcilable conflict between the medical evidence and the ocular version on record totally belies the claim of RW-1 Sangru Ram Yadav of being the eyewitness of the occurrence. 20. The aforesaid submission of the learned counsel for the appellants has been rebutted by Sri J.K. Upadhyay, learned A.G.A. by arguing that it has come in the cross-examination of RW-1 Sangru Ram Yadav that the deceased was shot by Tulsi Ram Yadav A3 from a distance of 2-3 paces which means at least 6-7 feet and hence absence of blackening, charring and tattooing around the fire-arm wound does not indicate any discrepancy between the medical evidence and the ocular version. 21. 21. Upon perusal of the cross-examination of RW-1 Sangru Ram Yadav, we have found that he on page 20 of the paper book in his examination-in-chief has deposed that when he, deceased and RW-3 Mauji Ram Yadav reached near the maize field of Sundar Yadav, all the three accused-appellants suddenly emerged and stopped the bicycle of Laddu Yadav and on the exhortation of Banarsi Ram Yadav (deceased A1) and Salig Ram Yadav A2 to kill him, Tulsi Ram Yadav A3 shot at Laddu Yadav on his chest as a result of which he fell on the ground and died then and there. In his examination-in-chief, he has not mentioned the distance from which the shot had been fired at the deceased. But RW-1 Sangru Ram Yadav in his cross-examination on page 30 of the paper book has deposed that at the time of the incident, Tulsi Ram Yadav A3 was at a distance of 2-3 paces or 1 metre and when Tulsi Ram Yadav A3 had shot Laddu Yadav after coming out of the maize field of Sundar Yadav he had got down from his bicycle and was standing holding it. Tulsi Ram Yadav A3 had shot at the deceased by extending his arm. Thus, according to the facts deposed by RW-1 Sangru Ram Yadav in his cross-examination, it can safely be inferred that the deceased had been shot by Tulsi Ram Yadav A3 from a very close distance probably less than 4 feet and in the aforesaid contingency, the absence of blackening, charring and tattooing around the fire-arm wound found on the body of the deceased does indicate a discrepancy between the medical evidence and the ocular version regarding the manner of assault. 22. Our attention has been invited by Sri J.K. Upadhyay, learned A.G.A. to the evidence of PW-7 Dr. U.S. Sinha in which he after referring Modi's Medical Jurisprudence has deposed that there was no hard and fast rule about when and from what distance blackening, charring and tattooing may be caused after a shot is fired from country made pistol. 23. Upon going through the evidence of RW-2 Man Bahadur Yadav and PW-7 Dr. U.S. Sinha, we do not find that the absence of blackening, charring and tattooing around the fire-arm wound conclusively demolishes the prosecution case that the shot was fired from a distance of 2-3 paces. 23. Upon going through the evidence of RW-2 Man Bahadur Yadav and PW-7 Dr. U.S. Sinha, we do not find that the absence of blackening, charring and tattooing around the fire-arm wound conclusively demolishes the prosecution case that the shot was fired from a distance of 2-3 paces. Thus the aforesaid discrepancy between the ocular version and the medical evidence, in our opinion is not irreconcilable. But to us, it appears that the role of exhortation assigned by him to Tulsi Ram Yadav A3 is afterthought object thereof being to rope in his entire family. No overt act of any kind has been attributed to him. It is also noteworthy that there is absolutely no evidence on record indicating that there was any prior concert and a common meeting of minds before the attack which is the most essential ingredient of Section 34 I.P.C. No motive has been scribed to Tulsi Ram Yadav A3 by the prosecution for exhorting Banarsi Ram Yadav A1 who alone had the motive to commit the offence. In our opinion, Tulsi Ram Yadav A3 did not require any instigation or exhortation to fire at the deceased because of his direct enmity with the deceased. Hence the learned trial Judge was not at all legally justified in convicting Salig Ram Yadav A2 under Section 302 I.P.C. by invoking the aid of Section 34 I.P.C. Thus, the evidence of PW-2 Man Bahadur Yadav to the extent it purports to implicate Tulsi Ram Yadav A3 does not appear to be trustworthy. However his evidence with regard to the complicity of Tulsi Ram Yadav A3 in the incident is throughout consistent and clinching. 24. The contention of the learned amicus curiae that no reliance should have been placed by the learned trial Judge on the evidence of PW-1 Sangru Ram Yadav who was the uncle of the deceased-Laddu Yadav, hence highly interested witness in securing their conviction, for convicting Salig Ram Yadav A2 and Tulsi Ram Yadav A3 is also without any merit. The law is settled that the evidence of a witness who is a relative of the deceased cannot be discarded merely on the ground of his being a relative of the deceased, if the Court after a careful scrutiny of the evidence of such a person comes to the conclusion that he has given a correct version of the incident. The law is settled that the evidence of a witness who is a relative of the deceased cannot be discarded merely on the ground of his being a relative of the deceased, if the Court after a careful scrutiny of the evidence of such a person comes to the conclusion that he has given a correct version of the incident. In the present case, we have already found the evidence of PW-1 Sangru Ram Yadav to be consistent and reliable qua Tulsi Ram Yadav A3 and hence it is not liable to be discarded merely on the ground of his being the uncle of the deceased. 25. The failure of the investigating officer to collect plain and bloodstained earth from the place of occurrence, take possession of bloodstained cot on which the deceased was allegedly taken to the hospital from the place of incident and the omission on the part of PW-1 Sangru Ram Yadav to show his bloodstained clothes to investigating officer, are in our opinion, mere irregularities which do not affect the core of the prosecution story, rendering it unreliable. 26. As far as the evidence of Shyam Narayan Pandey DW-1 and Dr. Jagdish Chandra DW-2 who were examined by the accused during the trial is concerned, the learned trial Judge has given cogent reasons for not placing any reliance on their evidence and we do not find any reason to take a different view. 27. Thus, in view of the above, appeal succeeds and is allowed in part. The recorded conviction of and the awarded sentence to Tulsi Ram Yadav A3 are confirmed while Salig Rain Yadav A2 is acquitted of all the charges framed against him. Salig Ram Yadav A2 is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. However, he shall comply with mandatory requirements of provision of Section 437-A Cr.P.C. 28. Tulsi Ram Yadav A3 is on bail, C.J.M. Allahabad is directed to take him in his custody and send him to jail forthwith for serving out the remaining part of his sentence. 29. Sri Rajiv Kumar Mishra, learned amicus curiae for Salig Ram Yadav A2 and Tulsi Ram Yadav A3 shall be paid a sum of Rs. 15,000/- towards his remuneration. 30. There shall be however, no order as to costs.