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2023 DIGILAW 712 (ALL)

Dharamvir v. State of U. P.

2023-03-16

RAJIV JOSHI, SIDDHARTHA VARMA

body2023
ORDER : 1. A First Information Report was lodged by one Rampal on 24.05.1995 stating that the accused had gone to the house of Vidyasagar and had searched for him and thereafter one of them had hit him by a sword which had resulted in such an injury that Vidyasagar could not stand. The first informant resultantly had gone out to search for a vehicle to carry Vidyasagar to get medical aid. In the First Information Report, it was stated that Rampal along with Ramdayal had gone to Sherpur where the first informant and Ramdayal (Vidyasagar’s brother-in-law (behnoi)) had met the Gram Pradhan and Ramavtar Kurmi and they had narrated to them about the incident. 2. The further case of the First Informant is that when the first informant and Ramdayal could not get any vehicle they went back to the house of Vidyasagar where it was found that he had died and, therefore, they approached the Police Station Katra, Sahjahanpur, to lodge a First Information Report. A chik FIR was prepared and handed over to the first informant. The police visited the spot and recovered the blood stained earth and plain earth. The police also recovered the cot on which Vidyasagar was sitting. 3. The police also prepared a spot map. Thereafter, a Panchayatnama was prepared and the body was sent for post mortem. 4. Upon the First Information Report being lodged which gave rise to Case Crime No. 90 of 1995, the police further investigated and took statements under Section 161 Cr.P.C. and, thereafter, submitted its charge-sheet on 23.06.1995. The Magistrate took cognizance of the matter and placed the case for trial before the Sessions Judge, who on 31.10.1996 framed charges against Baikunthnath, Dharamvir, Totaram and Ram Ashrey @ Nanhika. At the trial stage, the prosecution produced seven prosecution witnesses. The accused persons gave their statements under Section 313 Cr.P.C. and thereafter when the trial concluded and resulted in a conviction against the alive accused persons, namely, Ram Asre @ Nanhika and Dharamvir, under Section 302 IPC read with Section 34 IPC, the instant appeal was filed. 5. Before the High Court in Appeal, Shri Apul Mishra, learned counsel for the appellants has, therefore, argued that; I. On the date and time when Vidyasagar was attacked it was 07:30 pm in the evening of 24.05.1995. 5. Before the High Court in Appeal, Shri Apul Mishra, learned counsel for the appellants has, therefore, argued that; I. On the date and time when Vidyasagar was attacked it was 07:30 pm in the evening of 24.05.1995. Thereafter the First Information Report was lodged on 11:05 pm by P.W.-1 Rampal and, therefore, it was a very belated FIR. II. Learned counsel for the appellants has further argued that, in fact, Rampal was an illiterate person and, therefore, he had tried to get the assistance of Ramdayal and, therefore, he had waited for Ramdayal to come to the village of the deceased from where he was residing and that took some time. III. The FIR version given by Rampal was very different from the version of the other eye-witnesses namely, PW-2 and PW-3 who have actually assigned the role of assailing by sword to the appellant Ram Ashrey. IV. Learned counsel for the appellants states that when Rampal was accompanied by Ramdayal to village Sherpur where they had gone to fetch a vehicle then Ramdayal must have told that who had hit the deceased by sword yet he had chosen to narrate that it was not clear as to who had hit the deceased by sword while he was lodging the First Information Report. Learned counsel for the appellants states that definitely Ramdayal knew the name of Ram Ashrey as he has through out mentioned the name in his statement in the Court. V. Learned counsel for the appellants stated that Ramavtar whom the PW-1 and PW-3 met for the purposes of getting vehicle was never produced in the Court as witnesses. VI. While in the FIR it was stated that Urmila the sister of the deceased was present as an eye witness at the time of the incident, she was never produced as an eye witness in the Court. VII. The sword is a large thing which could have been recovered from either the possession of the assailants or it could have been found lying at the place of incident but the sword had never been discovered. VIII. The motive which the prosecution has attributed for the killing of Vidhyasagar that Vidhyasagar, who was a mason, had refused to work as mason for Totaram, Baikhund Nath, Ramashrey and Dharamvir could not be believed. IX. VIII. The motive which the prosecution has attributed for the killing of Vidhyasagar that Vidhyasagar, who was a mason, had refused to work as mason for Totaram, Baikhund Nath, Ramashrey and Dharamvir could not be believed. IX. Learned counsel for the appellants had argued that even if the case of killing was proved, it could not be said that it was a culpable homicide amounting to murder and, therefore, the accused could not have been punished for murder. To support his argument, learned counsel for the appellants has stated that it appears that there was a heated altercation between Baikhund Nath and Vidhyasagar and, therefore, just to conclude the argument, the four assailants had gone and in the heat of the moment the sword was used. X. Learned counsel for the appellants states that injuries on the body of deceased were not such which could be attributed to a sword. XI. Learned counsel for the appellants states that Ram Dayal had stated in his examination-in-chief that Ram Ashrey had inserted the sword in the body of Vidhya Sagar and this version, he says, did not match with the injury report. XII. Learned counsel for the appellants states that if the cross-examination of P.W. -3, namely, Ram Dayal, who was the brother-in-law of the deceased, is seen then it could easily be said that the story which was told by the first informant at the time of lodging of the first information report was absolutely a fallacious one as the P.W.-3 had stated that he had come to his in-laws place in the afternoon where he had met Vidhyasagar. Vidhyasagar had entertained the P.W.-3 and, throughout, Vidhyasagar was present with him. He further states that Vidhyasagar never went out of the house. He further states that Vidhyasagar had, till the evening when he died, remained at home. He does not corroborate the story that Vidhyasagar had gone and had verbal altercation with Baikuntnath. He also does not support the story that he was the one who had brought Vidhyasagar back from the place of verbal altercation and, therefore, learned counsel for the appellants states the whole story that Ram Dayal had brought Vidhyasagar from the location where the verbal altercation had taken place with Baikuntnath and Vidhyasagar is falsified. 6. Learned counsel for the appellants, therefore, states that this statement of Ramdayal absolutely falsifies the case of the prosecution. 6. Learned counsel for the appellants, therefore, states that this statement of Ramdayal absolutely falsifies the case of the prosecution. He states that there was no verbal altercation and Vidyasagar was not brought by Ramdayal and also there was no premeditation with regard to the commission of crime between the four accused. 7. At the time of the trial seven prosecution witnesses were examined. PW-1 was the first informant. He had narrated the story that Baikunthnath and Vidyasagar had verbal altercation, thereafter, Ramdayal the brother-in-law (Behnoi) of Vidyasagar had brought Vidyasagar back to his house. Subsequently, at 07:30 pm Baikunthnath and Totaram came in from the southern side of the house where Vidyasagar was residing and Dharamvir and Ram Ashrey came to the house from the eastern side of the house of Vidyasagar where Vidyasagar was sitting in the cot. He states that four of them had surrounded Vidyasagar and Vidyasagar tried to stand up but Baikunthnath, Totaram and Dharamvir held Vidyasagar from the back and thereafter he nowhere says that he had not seen as to who had actually assailed Vidyasagar with sword and, thereafter, he states that the four of them had run away from the eastern side. 8. PW-1 further states that he had gone to arrange for the vehicle for taking Vidyasagar for medical treatment but could not get any vehicle and, therefore, he come back to the village where he found that Vidyasagar had died. He, therefore, had proved the FIR. 9. The prosecution witness no. 2 Smt. Kalavati was the mother of the deceased. She had tried to give a motive for the murder and she had said that Vidyasagar was a mason. He had, before he died, worked as a mason in the house of the accused persons. The accused persons were not giving wages to the deceased and, therefore, Vidyasagar had refused to work and when he refused to work at the house of the accused, the accused had killed Vidyasagar. She also tells the same story as was told by PW-1 with regard to the fact as to how the assailants entered in the house and had killed Vidyasagar with a sword. 10. She also tells the same story as was told by PW-1 with regard to the fact as to how the assailants entered in the house and had killed Vidyasagar with a sword. 10. PW-3 Ramdayal who is the brother-in-law (behnoi) of Vidyasagar in his cross-examination in chief stated that at around 07:00 pm, he had gone to the crossing where Vidyasagar and Baikunthnath were having altercation and had brought Vidyasagar back to his home and at around 07:30 pm accused persons had come and had killed Vidyasagar. However, as has been pointed out by the counsel for the appellants that in the cross-examination, the PW-3 had given an absolutely different statement which is being reproduced here as under: ^^ftl le; yk'k dh lhy dh xbZ rks ml le; jkf= FkhA ?kVuk okys fnu eSa nksigj dks viuh llqjky esa vk x;k FkkA fo|klkxj feys FksA f[kyk;k fiyk;k] ckrphr dhA fo|klkxj us esjs lkFk [kkuk ugha [kk;kA jksVh [kkbZ FkhA eSaus tc [kkuk [kk;k rks fo|klkxj ekStwn FkkA eq>s ugha /;ku dh fo|kjke esjs ikl fdruh nsj jgkA ?kj ls dgh ugha x;kA 'kke dks mldh e`R;q gks xbZA eSaus nl feuV [kkuk [kk;kA fo|klkxj ?kj esa jgkA 'kke rd ?kj ij jgkA 'kke dks ?kVuk gks xbZA^^ 11. PW-4 was the doctor who had conducted the post mortem. PW-5 was the Sub-Inspector, Jagbeer Singh Tomar who had done the initial investigation. PW-6 was the Sub-Inspector who had further conducted the investigation and the PW-7 was also an Investigating Officer. 12. The doctor, PW-4 had given a medical report which was proved by him and the report was never challenged by any of the prosecution in which he had given the following injuries: i. At the left shoulder on the back side there were injuries by a sharp weapon within an area 15cm X 12cm. He had stated that on the back of the left shoulder there were three injuries: 1. 3cm X 7cm. 2. Small injury 1.5cm X 1cm deep. 3. 12cm X 4cm deep till the bone. 13. Further it was found that at the time of post mortem, the bone had fractured and the ribs were also fractured. 14. Under Section 313 Cr.P.C. the defence had denied having committed the crime. 15. 3cm X 7cm. 2. Small injury 1.5cm X 1cm deep. 3. 12cm X 4cm deep till the bone. 13. Further it was found that at the time of post mortem, the bone had fractured and the ribs were also fractured. 14. Under Section 313 Cr.P.C. the defence had denied having committed the crime. 15. Learned A.G.A. opposed the appeal and stated that when there were eye witnesses, there was no reason to come to any other conclusion which had been arrived by the trial Court. 16. Having heard learned counsel for the appellants, Shri Apul Mishra and one learned A.G.A., Shri S.N. Mishra, we are of the view that the appeal deserves to be allowed. 17. We have closely scrutinised the evidence on record and the statements made by the witnesses. The sword was never discovered; a very important witness i.e. the sister of the deceased Smt. Urmila who was also the wife of Ramdayal never came to the witness box; there was definitely a great delay in the FIR. All these were such arguments from the side of the appellants which could be said that they could be interpreted both in favour of the accused and also against them. However, the arguments which would be analysed henceforth would make any person of prudence come to the only conclusion that the appellants were innocent. Firstly, when there was a sword being used the injuries could not be as wide as have been shown in the post mortem report. The first injury is of 7cm X 3cm. It is a very wide injury which could be caused only by an object which was not sharp. Definitely the injury of 12cm X 4cm also could not be caused by a sword which is a very sharp weapon. 18. Still further if the statement of Ramdayal is perused, we find that he states that assailants including Ram Ashrey had inserted the sword. He uses the word ‘ghop’ which means stabbing. That would mean that the sword is directly inserted in the body from the sharp end of the sword. How then the injuries which are 7cm and 12cm in the length were there cannot be explained. 19. Further the statement of Ramdayal in his cross-examination absolutely falsifies the case of the prosecution. He uses the word ‘ghop’ which means stabbing. That would mean that the sword is directly inserted in the body from the sharp end of the sword. How then the injuries which are 7cm and 12cm in the length were there cannot be explained. 19. Further the statement of Ramdayal in his cross-examination absolutely falsifies the case of the prosecution. Throughout the prosecution he has said that Ramdayal is the person who had gone to fetch Vidyasagar, the deceased, from the place where he had entered into a verbal altercation with Baikunthnath but in his cross-examination Ramdayal had given out a different picture and which was that when Ramdayal had come to his in-laws house in the afternoon and from that time and till the time vidyasagar was killed, Vidhyasagar never moved out of the house. Ram Dayal is the prosecution’s eyewitness. Also this witness cannot be disbelieved as he is not related by blood and therefore while he was giving this statement in his cross-examination he had divulged the truth. 20. Under such circumstances, we have no reason to believe that Dharamvir and Ram Ashrey had committed the crime and, therefore, we are of the view that the Appeal deserves to be allowed and Ram Ashrey and Dharamvir deserve to be acquitted. 21. Since Totaram and Baikunthnath had died during the Trial and the Trial had abated vis-a-vis them, there is no requirement to give any verdict with regard to their roles. 22. The Appeal is allowed. The appellants are acquitted. 23. The appellants if are not wanted in any other case may be released.