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Allahabad High Court · body

2020 DIGILAW 449 (ALL)

Ram Kishore v. State

2020-02-10

ARVIND KUMAR MISHRA I, GAUTAM CHOWDHARY

body2020
ORDER : 1. Heard Sri Lallu Singh and Rahul Mishra, learned counsel for the appellants and Sri Rajiv Kumar Rai, learned A.G.A. for the State and perused the record. 2. By way of the instant appeal challenge has been made to the authenticity and veracity of the judgment and order of conviction dated 19.8.1993 passed by the IV Additional Sessions Judge, Fatehpur in S.T. No. 403 of 1992 State Versus Ram Kishore and others under sections 302/34 I.P.C. whereby the appellants have been convicted under sections 302/34 I.P.C. and sentenced to imprisonment for life in the first count. In the second count convicted and sentenced under section 201 I.P.C. for five years rigorous imprisonment. Both the sentences have been directed to run concurrently. 3. The facts relevant for adjudication of this appeal as gathered from the record, appear to be that some written report was presented by the informant Ram Saran, scribed by one Kishori Lal Pradhan addressed to the Station House Officer of Police Station Husainganj district Fatehpur with the allegations that the informant is the resident of village Latikpur within the police station Thariyon. The informant's brother Goverdhan had lent Rs. 500/- to Ram Kishore son of Maiku Lodh and on demand being raised for paying back the money, it was refused and dilly dallying tactic was adopted for the last for months. It so happened that Kishori Lal began to reside in village Kazipur within the police station Husainganj with his brother-in-law(Sarhu) Chheddu and used to visit his village occasionally. It was on Saturday 24th August, 1991, the informant's brother Goverdhan raised demand for the money whereupon his brother (Ram Kishore), Ram Kripal asked Goverdhan to accompany them to Kazipur where the money will be given to him, whereupon, the two brothers departed in the company with the deceased. When the deceased did not return, inquiry was made at Kazipur also, besides being made at several places but no trace of the deceased was made. While the process of search was on, the dead body of the informant's brother was found/traced in the western side lake of the village Hasanapur. Information of the same was given at the police station. It is gathered from the record that this written report was received at P.S. Husainganj at 3.30 p.m. and relevant note of the same entered in the G.D. Rapat No. 22 at 3.30 P.M. on 28.8.1991. Information of the same was given at the police station. It is gathered from the record that this written report was received at P.S. Husainganj at 3.30 p.m. and relevant note of the same entered in the G.D. Rapat No. 22 at 3.30 P.M. on 28.8.1991. The investigation ensued and the same was entrusted to the Investigating Officer R.B. Singh, the S.O. who after lodging of the report proceeded to the spot and prepared the inquest report and also prepared the relevant papers for sending the dead body for post mortem examination. 4. Dr. S.S. Banarjee, P.W. 4 conducted the autopsy on the cadaver of the deceased on 24.8.1991 at 3.00 P.M. The dead body was identified by Constable Ram Sukh and Constable Rajendra Prasad. Following ante mortem injuries were noted at the time of examination by the doctor on the cadaver of the deceased. 1. Firearm wound of entry 5 cm x 4 cm just behind left ear, bone deep, blackening around wound was present. On dissection there was fracture of temporal and occipital bone. 24 pellets and one wadding were present in the brain cavity. 2. Firearm wound of entry 3 cm x 2.5 cm left mid axillary line on left lateral aspect of abdomen 8 cm above iliac crest cavity deep. Blackening around wound was present. On dissection spleen and left kidney lacerated. Stomach and intestine perforated. About 1 lit. of blood present 33 pellets, 1 Tikuli and 1 wedding pieces recovered. 5. The post mortem examination report has been proved which is exhibit Ka-2. 6. Besides, he also prepared the site plan Exhibit Ka-10. These papers are exhibit Ka-4 to Ka-10. The further course of investigation from hence onward was taken over by the second Investigating Officer Ghanshyam Ahirwar on 9.9.1991. He recorded the statement of the wife of the deceased Yasodiya and Ram Raj and after completing the investigation filed the charge sheet Exhibit Ka-3. 7. Consequently, the case was committed to the court of Sessions from where it was transacted to the trial court of Additional Sessions Judge, Fatehpur, who in turn heard the prosecution and the accused on the point of charge under sections 302/34 and 201 I.P.C., charges explained to the accused but the same were denied by the accused and they opted for trial. Consequently, the prosecution produced in all seven witnesses. Consequently, the prosecution produced in all seven witnesses. Brief sketch of the same is ut infra:- P.W. No. 1 Ram Raj, is a witness of fact of last seen. Ram Saran, is P.W. 2 who is the informant and has proved the written report, which is exhibit Ka-1. Yasodiya, P.W. 3 is the wife of the deceased and star witness and she is the witness of fact of last seen, apart from proving the fact of the lending transaction (worth Rs. 500/-) between the deceased Goverdhan and Ram Kishore. 8. Dr. S.S. Banarjee, P.W. 4 has conducted the autopsy and has proved it as exhibit Ka-2. Ghanshyam Ahirwar P.W. 5 was the subsequent Investigating Officer, he has proved the filing of the charge sheet exhibit Ka-3. S.I. R.B. Singh P.W. 6 is the first Investigating Officer who took over the investigation on 28.8.1991 and took several steps in furtherance of completion of the investigation. However, the investigation was taken over by another Investigating Officer from him. Constable Hakim Singh, P.W. 7 is the formal witness who has proved the entry made by him after the receipt of the written report in the concerned G.D. of date 28.8.1991 and has proved it as exhibit Ka-1. 9. The prosecution evidence was closed and the statement of the accused was recorded under section 313 Cr.P.C. wherein the case was stated to be false one and no evidence whatsoever was led by the accused-appellants. The court below after considering various aspects of the case and considering the nature of the case to be one based on circumstantial evidence scrutinized the relevant record and the vital circumstances of the case and recorded finding of conviction under sections 302/34 and section 201 I.P.C. and consequently, sentenced the accused to life imprisonment and rigorous imprisonment for five years respectively resultantly, this appeal. 10. Learned counsel Sri Rahul Mishra, for appellant No. 2 Ram Kripal claimed that it is a case of blind murder and no one knows as to how it occurred and a baseless, false concocted theory has been setup by the prosecution regarding existence of some money transaction having taken place between the deceased (Govardhan) and the brother of the present appellant to the ambit that some lending transaction worth Rs. 500/- took place whereby Ram Kishore, in fact, obtained on credit the above money from Goverdhan. 500/- took place whereby Ram Kishore, in fact, obtained on credit the above money from Goverdhan. There is nothing in the shape of consistent circumstances which may point out that the appellant ever participated at any moment of time in the commission of the crime. More so, assuming it to be that the money transaction had taken place between the deceased and the brother (Ram Kishore) of the appellant (Ram Kripal) and it was existing even then the present appellant Ram Kishore who is and was admittedly residing separately in separate house in the village at the time of the occurrence had no motive to commit the offence because the money transaction in question was exclusively between the two persons, the deceased and the accused Ram Kishore. Merely being real brother of the main accused (Ram Kishore) would not itself be sufficient to impute motivation to commit the crime. On the contrary, it would be highly conjectural to act on that aspect as Ram Kripal being interested in involving Govardhan, as such there is every possibility of false implication of the appellant Ram Kripal in this case. The testimony of the prosecution witnesses is on the face testimony of interested and partisan witnesses, they are not worthy of credit. There are various loopholes explicit and implicit in the prosecution story. There is no certainty as to what the witnesses of fact depose either circumstantial or as direct testimony that the accused appellants were ever seen around the place from where the dead body of deceased Govardhan was recovered and no whisper in that regard emerges from the entire testimony. The prosecution evidence on the point of the alleged presence of the accused on the spot at the relevant point of time gives rise to the fact that it is a case of false implication on the ground that enmity existed between the parties and hot altercation also took place while the chakbandi process was underway/followed in the village. The motive suggested is weak. There is no direct and clinching testimony on point showing fact that the money transaction in fact assumed graver objective for committing the murder of Govardhan. 11. The motive suggested is weak. There is no direct and clinching testimony on point showing fact that the money transaction in fact assumed graver objective for committing the murder of Govardhan. 11. So far as the proximity of the time gap between the last seen theory and the recovery of the dead body is concerned, admittedly the dead body was recovered on 28.4.1991 and the matter was reported around 3.30 p.m. the very same day however the last seen is stated to have taken place after 3.00 p.m. on 24.8.1991. No efforts made by the I.O. to collect the development that took place between the above period. 12. There is no recovery of any sort whatsoever from any of the accused what to say about the appellants. Under the aforesaid attendant facts and circumstances of this case, possibility of some other committing the offence cannot be ruled out and it cannot be said that all the circumstances have been consistently established by the prosecution against the accused so as to establish the hypothesis of guilt. The circumstances proved do not give rise to any hypothesis of the guilt of the accused that he alone is the author of the crime to the exclusion of all others. The various links in the chain of circumstances are woefully incomplete in this case. 13. Surprisingly, the Investigating Officer being highly enthusiastic and zealous has perfunctorily investigated the case and filed the charge sheet, apart from other sections of Indian Penal Code, under section 364 I.P.C. as well. It means the act of abduction was also found proved against the appellants by the Investigating Officer but there is no evidence in regard to any abduction being made of the deceased Govardhan. 14. All the prosecution witness are highly interested and partisan witnesses and their testimony cannot be believed to be clinching one and in the absence of any independent corroboration from independent source the testimony becomes wholly unreliable. No one in fact saw the deceased in the company of Ram Kishore. There is no cogent evidence of fact of last seen and the proximity of the time between last seen and the day when the dead body was recovered is huge not properly explained. No one in fact saw the deceased in the company of Ram Kishore. There is no cogent evidence of fact of last seen and the proximity of the time between last seen and the day when the dead body was recovered is huge not properly explained. No one saw the appellants accused near or around the place of occurrence (lake) at any point of time after the alleged disappearance of the deceased Goverdhan from his house, which raises serious doubt and questions authenticity of the version of fact of accompaniment of the deceased by the accused Ram Kishore. Fact is that, no money transaction whatsoever took place between the deceased Goverdhan and Ram Kishore and a false story has been set up in order to falsely implicate the accused-appellants for no worthy reason except on account of the village enmity. All the circumstances as were required to be proved in such a case like the present one, based on circumstantial evidence have not been properly proved. The circumstances proved are weak, incomplete and inconsistent. Normally, in a case based on circumstantial evidence all the links in the chain of the various circumstances must be consistently interwoven to establish the guilt leading to the inevitable evidence that the accused was the perpetrator of the crime and to exclude every hypothesis except the guilt of the accused. 15. Learned counsel summed up that the conduct of the informant side is most unnatural. Assuming it to be that any such incident as last seen occurred on 24.8.1991 as alleged by the prosecution, then till the recovery of the dead body, the conduct of all the family members of the deceased was not natural as was expected in the wake of disappearance of the deceased Goverdhan from his house and that natural aspect has neither been appraised by the trial court nor established by the prosecution. 16. While replying to the aforesaid contention the learned A.G.A. Sri Rajiv Kumar Rai, vehemently claimed that it is a case based on circumstantial evidence for the reasons that no one saw the actual occurrence, the dead body was recovered on 28.8.1991 when alone the matter was reported by P.W. 2 Ram Saran. The occurrence has its genesis/origin in specific motive to commit the murder on account of fact that Rs. The occurrence has its genesis/origin in specific motive to commit the murder on account of fact that Rs. 500/- was obtained/borrowed by Ram Kishore earlier from the deceased Goverdhan and demand was raised by Govardhan for payment of the same, the evidence is overwhelming to the ambit that out of Rs. 500/- some money-say Rs. 200/- had been returned but Rs. 300/- remained to be paid. It so happened that Goverdhan was whisked away on 24.8.1991 after 3.00 p.m. by the accused Ram Kishore from his house, while the wife of the deceased (Goverdhan) was also present in the house. The deceased took his meal/lunch while Ram Kishore waited outside the house sitting on a cot. After the meal was over, Ram Kishore took the deceased (Goverdhan) in the name of paying back the money by asking him (the deceased) to accompany him upto Kazipur. Thereafter, no trace of the deceased could be made despite hectic search being made by the members of the family of the deceased. But prior to that it as emerged in the testimony of the prosecution witness particularly-P.W. 1 and P.W. 2 that Ram Kripal, the brother of the main accused Ram Kishore, who resided in a separate house in the same village also joined Ram Kishore on way with the deceased. This fact of last seen is unimpeachable. Thus, the complicity of both the accused being real brothers having strong motive against the deceased in not returning the money lent by the deceased to Ram Kishore was the deciding factor for committing the murder of the deceased Goverdhan. The theory of last seen has been proved by both P.W. 2 and P.W. 3 against both the appellants, and it cannot be doubted from any stretch of imagination. The various links in the chain of circumstances have been consistently proved and these circumstances inevitably point of guilt of the accused beyond shadow of doubt. There is no reason for false implication and leaving the real culprit at wisdom. 17. So far as the Investigating Officer is concerned, he has rightly conducted the investigation and recorded the statement and has rightly filed the charge sheet against the accused in view of the proved facts and circumstances. There is no reason for false implication and leaving the real culprit at wisdom. 17. So far as the Investigating Officer is concerned, he has rightly conducted the investigation and recorded the statement and has rightly filed the charge sheet against the accused in view of the proved facts and circumstances. This being so the onus to disprove the various facts pertaining to the accompaniment of the deceased by both the accused can be discharged under section 106 of the Indian Evidence Act, 1872. But this burden has not been discharged even in the least. 18. Now, the disappearance of the deceased from his house in company with the accused is a fact specially within the knowledge of both the accused and they alone are required to disprove this fact by a reasonable explanation as to at what point of time they departed the company with the deceased. This explanation is altogether missing and in the absence of any such explanation explicit or implicit, the only hypothesis that emerges from the circumstances proved that the accused are guilty of the charge, thus leaving aside every hypothesis of crime being committed any other person but the accused. Not only this but also suggestion has been made by the defence in that regard that there was someone else who could have committed the murder. 19. Also considered the rival submissions. 20. We may proceed upon the material to co-relate the entire story say exhibit Ka-1. The description of the background of the incident and the incident of last seen as claimed by the prosecution is very much detailed in the report. The written report was lodged after the dead body of the victim was recovered from a huge water body in village Hasanapur on 28.8.1991. It describes the incident in the shape that some time prior to 24.8.1991 Rs. 500/- was demanded by Ram Kishore from Goverdhan understood in terms of some loan and the money was given by Govardhan to Ram Kishore, on demand being raised for return of the money, the same was prolonged and not returned for the last four months prior to the incident, the deceased began to reside with his brother-in-law Chheddu at village Kazipur within police station Husainganj. On 24.8.1991 Goverdhan demanded from Ram Kishore the money whereupon Ram Kishore and his brother Ram Kripal asked him to accompany them to Kazipur where the money will be given and took away with them the deceased but the deceased did not return and on search being made no trace of the deceased was found. The search for trace continued from the day of disappearance (24.8.1991) and, it so happened that the dead body of the deceased Goverdhan was recovered from the lake at village Hasanapur. It was only after recovery of the dead body that the information was given to the police station Husainganj. It is noticeable that the case was lodged at case crime No. 181 of 1991 under section 364 I.P.C.302/201 I.P.C. and the investigation was commenced. Particular to take note of the fact that the Investigating Officer recorded the statement of the various witnesses and in particular the statement of P.W. 1 and P.W. 3 to the effect that both the accused being the real brothers somehow whisked away the deceased Goverdhan and thereafter the dead body of the deceased (Goverdhan) was recovered from a pond/lake in village Hasanapur. 21. In the backdrop of the aforesaid asserted facts, we may scrutinize the testimony of the witnesses of fact, but before proceeding with the same certain aspects of the case which are admitted to both the sides need be referred for convenience. It is admitted case that there is no eye account testimony of the occurrence by which the two firearm wounds (as per PMR) were caused to the deceased, therefore, it is a case purely based on circumstantial evidence. 22. In this case, the various links in the chain of evidence should be specific and must be consistently interwoven so as to point out and establish invariably the guilt thus proving the case within the four corners of circumstantial evidence case and lastly, the various links in the chain of circumstances being proved consistently must be of nature leaving aside every hypothesis of innocence but the one proposed to be proved against the accused that they alone committed the offence to the exclusion of all others. 23. While considering the case on meritorious count we come across the testimony of the prosecution witnesses of vital facts-say-the last seen in the shape of P.W. 1 Ram Raj and P.W. 3 Yasodiya. 23. While considering the case on meritorious count we come across the testimony of the prosecution witnesses of vital facts-say-the last seen in the shape of P.W. 1 Ram Raj and P.W. 3 Yasodiya. To be specific, the testimony of P.W. 3 Yasodiya direct, is cogent and consistent on the point of the specific day i.e. 24.8.1991 when the last seen episode occurred. She has come out with the description that it was around 3.00 p.m. when her husband Goverdhan returned home from market along-with Ram Kishore and took his noon meals while Ram Kishore was sitting outside the house on a cot. Thereafter on the pretext of giving money to the deceased, Ram Kishore took the deceased with him and proceeded to Kazipur. At this place there is no mention of another co-accused say Ram Kripal that he was either present on the spot or he accompanied the deceased along-with Ram Kishore at the starting point the house of Goverdhan from where the last seen theory commenced as emerging in the testimony of P.W. 3, but the clue is supplied by the testimony of P.W. 1 Ram Raj regarding fact of accompaniment of Ram Kripal with the deceased. The magnitude of his statement shows that while sitting at his house he saw Ram Kishore and Goverdhan coming together whereas while so proceeding Ram Kripal who resides in another house of the village joined them. This specific piece of testimony of P.W. 3 and P.W. 1 when taken as a whole goes to cumulatively establish fact of 'last seen' of causing disappearance of both the accused with the deceased at a particular point of time on 24.8.1991, but we have reasonable doubt regarding the fact of such participation in the incident by co-accused Ram Kripal particularly on the point as to from where Ram Raj saw Ram Kripal joining the deceased and Ram Kishore, because there is no site plan prepared of the place from where Ram Raj in fact saw the house of Ram Kripal and it cannot be said with certainty that Ram Raj was either in front of the house of Ram Kripal or the house of Ram Kripal was near his house within the visibility of this witness. In the absence of any such direct testimony about the exact position of the respective houses of Ram Raj and Ram Kripal, we may conclude, in so far as the point of presence of Ram Kripal in the act of joining the accused is concerned the same is rendered most suspicious, and this is a vital link in the chain of circumstances, thus rendering this act of participation in the crime by Ram Kripal becomes doubtful. Therefore, Ram Kripal can not be considered to have participated in the incident of last seen thus this part of evidence cannot be given credence. More so, the witness P.W. 1 Ram Raj is also a family member/relative of the deceased. There are certain reasons for this witness being interested in falsely involving the real brother of the main accused (Ram Kishore) in the incident. Therefore it is not safe to believe the theory of last seen to have been reasonably established and proved as against the another co-accused Ram Kripal. However, in so far as the fact of last seen against the main accused Ram Kishore is concerned then we have before us not only the testimony but also the circumstances of this case, which innocuously and inevitably lead us to the conclusion that Ram Kishore in fact took with him Goverdhan to his house and from there he took him to Kazipur and this piece of testimony is virtually unassailable and unimpeachable. P.W. 3 Yasodiya has not been challenged even in the least manner about the very fact of presence of Ram Kishore at the house of Goverdhan. Similarly, there is no challenge to the act of accompaniment as has been alleged against the accused Ram Kishore. Not only this much, but also the fact of accompaniment had a motive and that motive also stood proved and has not been challenged even in the least and in particular P.W. 3 Yasodiya by the defence particularly by the accused Ram Kishore. For that count without unnecessarily scrutinizing threadbare dealing with fact of last seen and also on the ancillary aspects of the case we may unhesitatingly hold that in this case prosecution has been able to prove and establish the fact of strong motive to commit the crime against the accused Ram Kishore and each link on the chain has been reasonably established. Theory of last seen and the very motive behind the crime have been proved and established beyond doubt. Now the last seen stood unassailably established against the accused Ram Kishore along-with the motive. Now the point is to be explained by Ram Kishore himself as to where he took the deceased with him after he departed with the deceased from his house and this particular aspect became a fact within the special knowledge of accused Ram Kishore. Thus this particular fact is a state of thing or mental condition of which the accused is conscious and in this case 'fact in issue' is disappearance and consequent death of Goverdhan. We may observe that burden of proof of special and particular fact if found to be within the knowledge of any person then the person whosoever he may be is required to prove that fact. 24. We have carefully perused the entire statement of accused Ram Kishore recorded under section 313 Cr.P.C. wherein no specification in shape of reasonable explanation of this particular fact has come. At the time of arguing this appeal no explanation is forthcoming on this point. Argument has been raised to the ambit that in this case the time gap between the last seen and the time of recovery of the dead body is huge and it indicates that the offence might have been committed by anyone else. But the contention raised is merely based on imagination for the reason that the doctor has deposed, inter alia, with an explanation that the death of Goverdhan might have taken place any time after 3.00 p.m. on 24.8.1991 up to the time of recovery of the dead body (which day is 28.8.1991). In between that span of time fact of death has been affirmed and there is no one else who can be imputed to have any interest in committing the murder of the deceased nor any such circumstance is found emerging, surprisingly not a single suggestion on this point has been given by the defence as to who else could have been the interested person to have the animus to commit the offence. 25. 25. Upon consideration of the aspect of investigation, we may observe that it cannot be said that the I.O. was somehow interested in availing conviction of the accused and with that motive in mind he carried out unfair investigation and filed the charge sheet against the accused. Consequently, the contention raised in that regard are hereby not accepted by us. Moreover, no evidence or circumstance exist in this case to think of argument that the investigation of this case was shoddy. 26. We may conclude that the trial court while analyzing/scrutinizing the various facts and circumstances of the case vis-a-vis the testimony of P.W. 1 and P.W. 3 wrongly recorded the finding of conviction against the accused Ram Kripal that he too was involved in carrying away/abducting Goverdhan in the company with Ram Kishore. The case of Ram Kripal as observed above becomes doubtful and for the reason aforesaid his complicity in the offence has becomes dubious and we can observe with ease that he (Ram Kripal) being the real brother of Ram Kishore, has been falsely implicated in this case. We may add here that he had no strong motive to commit the murder and he resided separately from his brother Ram Kishore. At that point of time when the alleged disappearance of the deceased was caused by Ram Kishore, merely a bold statement in the form that Ram Kripal also accompanied his brother Ram Kishore and Goverdhan on way while they were proceeding towards Kazipur would not be suffice to believe the theory of last seen as against him though proved beyond doubt against Ram Kripal. 27. Consequently, in so far as the finding of conviction in respect of appellant co-accused No. 2 Ram Kripal is concerned, finding of conviction recorded under section 302/34 I.P.C. and section 201 I.P.C. against him is set aside and he is exonerated of both the charges, accordingly he is acquitted of the same. He is stated to be on bail. His personal bond is cancelled and sureties are discharged. 28. However, in so far as the case of another appellant No. 1 Ram Kishore is concerned his case stands proved in totality qua the charges and he has been rightly convicted by the trial court and this finding of conviction recorded under sections 302/34, and section 201 I.P.C. are hereby affirmed by us. 29. 28. However, in so far as the case of another appellant No. 1 Ram Kishore is concerned his case stands proved in totality qua the charges and he has been rightly convicted by the trial court and this finding of conviction recorded under sections 302/34, and section 201 I.P.C. are hereby affirmed by us. 29. Consequently, this appeal in so far as it relates to the conviction and sentence of accused Ram Kishore; under aforesaid sections of the Indian Penal Code is concerned, is hereby dismissed whereas the case of the appellant No. 2 is accepted and his claim for exoneration is allowed. Thus, this appeal is partly allowed in terms aforesaid. 30. Appellant Ram Kishore is on bail, his personal bail bonds are cancelled he be taken into custody forthwith to serve out the sentence imposed on him by the trial court. 31. A copy of this order be certified to the court concerned.