BADRI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The appellants and one Tulsi Das were charged for offences under Sections 309 and 201 read with Section 149 of the Indian Penal Code, The appellants were also charged for offence under Section 148 and Tulsi Das for offence under Section 147. The Sessions Judges, Hamirpur acquitted the appellants and Tulsi Das of all the offences charged against them. The State preferred an appeal against the order of acquittal and the High Court partly allowed the appeal so far as the appellants were concerned and, setting aside the order of acquittal, convicted the appellants of offences under Section 302 read with Section 149 as will as Section 148 and sentenced each of them to suffer life imprisonment for the offence under Section 302 read with Section 149 and two years' rigorous imprisonment for the offence under Section 148 with a direction that both sentences should run conenrrently. The acquittal of the appellants for offence under Section 201 read with Section 149 was confirmed by the High Court and so also was the acquittal of Tulsi Das in respect of the charges preferred against him. Since the acquittal of the appellants in respect of offences under Section 302 read with Section 149 and Sec. 148 was reversed and the appellants were sentenced to rigorous imprisonment by the High Court, the appellants preferred the present appeal under Section 2 (a) of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970.

(2.) The incident giving rise to the prosecution in the present case took place in Village Aunta within the jurisdiction of Police Station Rath in Hamirpur District. It is clear from the evidence on record, and that was not disputed by either party, that there were at the material time two factions in this village, one consisting of followers of the previous Pradhan Bindaban and the other consisting of the followers of Ram Sevak who was Pradhan then in the office. There was considerable bitterness and enmity between these two factions and their mutual enmity had already taken twelve lives. The appellants belonged to the faction of Bindaban, while the deceased Chet Ram, who was also known as Karia, and his companions owed allegiance to the faction of Ram Sevak. The prosecution case was that an incident took place on 26th March, 1967 between appellants 1 and 2 and Tulsi Das on the one hand and one Maddu on the other in which the deceased Chet Ram and one Ram Das assisted Maddu by taking him to the Police Station and lodging a report against appellants Nos. 1 and 2 and Tulsi Das. This incident, according to the prosecution, roused the ire of the appellants and Tulsi Das which culminated in the attack on the deceased Chet Ram on the next day, that is 27th March, 1967. On that day at about 3 p. m. the deceased Chet Ram was returning from the house of one Vishwa Nath where he had gone for applying 'Holi Tilak'. He was accompanied by Ram Das, Ganga Din, Balli and Ghanshyam. On the way there was the house of one Laxmi with a courtyard. When these persons were near the house of Laxmi, the appellants and Tulsi Das appeared from the northern side. Appellants Nos. 1 and 2 were armed with guns, appellants Nos. 3 to 6 with spears, appellant No. 5 with a pharsa, appellant No. 4 with an axe and Tulsi Das with a lathi. The deceased Chet Ram was, at this point of time, a few paces ahead of his companions. Appellant No. 1 accosted the deceased Chet Ram and said that he would not let him escape and with these words he fired his gun. The shot hit the deceased Chet Ram whereupon he immediately ran into the court yard (Bakhri) of the house of Laxmi. The appellants and Tulsi Das chased him into the courtyard and appellants Nos. 1 and 2 fired their guns at him. The shot hit the deceased Chet Ram and he fell down. The other appellants then attacked him and gave him blows with the respective weapons in their hands. This was witnessed by Ram Das, Ganga Din, Balli and Ghanshyam who had followed the appellants and were standing at the entrance (pauri). Appellants Nos. 1 and 2 thereafter dragged the dead body of the deceased Chet Ram along the lane and dropped it in front of the house of one Buddhu carpenter. The other appellants also went along with them. Ram Das, Ganga Din, Balli and Ghanshyam too followed the appellants and they saw that after the dead body of the deceased Chet Ram was dropped in front of the house of Buddhu carpenter, appellant No. 5 gave two blows on the neck with his pharsa in order to make sure that Chet Ram was dead. In the meantime, one Khem Raj also arrived at the scene. Appellants Nos. 1 and 2 thereafter again removed the dead body and dragged it to village Tola where one Chaitu saw them and from village Tola they dragged the dead body to village Amgaon where, it appears, the dead body was thrown into the Bhaira Nala. Appellants Nos. 1 and 2 were, throughout this operation, accompanied by other appellants. Ram Das, according to the prosecution, went and informed Ram Dayal, father of the deceased Chet Ram, about this incident. Ram Dayal immediately left in search of the dead body of his son, but not finding it he returned disappointed. Thereafter he got a report of the incident written by one Mansa Ram and went to the Police Station Rath and lodged it at 5.30 p. m. on the same day. On receiving the First Information Report the investigating officer Agnihotri proceeded to village Aunta and started investigation. He recorded the statements of the witnesses. He noticed that there was a lot of blood in the court yard of Laxmi and there were also some pieces of broken teeth at that place. He also recovered nine pellets and three wads of cartridges from the place of the incident and found two pellets embedded in the door of Laxmi's house. He also noticed that there was a good deal of blood in front of the house of Buddhu carpenter. The dead body could not be traced on that day, but on the next day, Agnihotri, following the stains of blood and marks of dragging reached Bhajra Nala and found the dead body submerged in water held by two heavy stones. The Post-mortem examination of the dead body was thereafter performed by Dr. K. P. Mittal and after the report of the post-mortem examination was received, a charge-sheet was submitted against the appellants and Tulsi Das.

(3.) The case was tried by the Sessions Judge, Hamirpur. Before the learned Sessions Judge the prosecution examined several witnesses to prove the case against the appellants. Out of these witnesses, we need refer only to three, namely, Ghanshyam, Ram Das and Chandan, wife of Laxmi, who, according to the prosecution were eye-witnesses to the incident. The learned Sessions judge disbelieved these three eye-witnesses by adopting a rather curious process of reasoning. First he examined the prosecution story in regard to dragging of the dead body of the deceased Chet Ram. He held that the theory of dragging was not believable and gave four reasons for taking this view. Firstly, he thought that the dragging of the dead body from the court yard of Laxmi's house to Bhaira Nala was unnecessary. Secondly he could not appreciate why it was necessary for appellant No. 5 to give two pharsa blows on the neck of the deceased Chet Ram in front of the house of Buddhu carpenter. Thirdly, he felt that it was difficult, if not impossible, for two persons to drag the dead body upto a distance of four furlongs. And fourthly, he thought that if the dead body was dragged for such a long distance, there should be quite big post-mortem wounds on the dead body, but no such post-mortem wounds were found. He then proceeded to consider the evidence of the witnesses against the background of rejection of the story of dragging. So far as Ram Dayal is concerned, he dismissed the evidence of this witness on the ground that he was not an eyewitness, but at the same time relied on his evidence for the purpose of holding that there was enmity between the factions of Bindaban and Ram Sevak and the appellants belonged to the former faction while Ram Dayal, Ram Das and the deceased Chet Ram belonged to the latter and it was, therefore, not difficult to believe that Ram Dayal and Ram Das had falsely implicated the appellants. He observed that it was likely that when Ram Dayal lodged the report at Police Station Rath, he did not know who were the real assailants of the deceased Chet Ram, but implicated the appellants only because the latter belonged to a different faction than his. The evidence of Ghanshyam was discarded on the ground that he was a nephew of Ram Dayal and as such not a very reliable person. The evidence of Khem Raj was also rejected and the reasoning given was that he was a ploughman of Prithviraj who was the brother of Ram Sevak. The same criticism was also levelled against the evidence of Ram as, and it was held that he was also an interested witness as he belonged to the faction of Ram Sevak. The learned Sessions Judge found it difficult to believe the testimony of this witness when he said that he and the other witnesses entered the paur of Laxmi and from there saw that part of the incident which took place inside the house and they remained standing there even when the appellants dragged the dead body of the deceased Chet Ram out of the courtyard and carried it away by dragging it. So far as the evidence of Chandan, wife of Laxmi is concerned, the learned Sessions Judge conceded that she was a natural witness, but did not think it proper to place any reliance on her evidence, firstly, because she was not named as a witness in the chargesheet nor was she examined as a witness in the Committing Magistrate's court, and secondly, because she mentioned in her evidence only the names of appellants Nos. 1, 3 and 6 and stated that she did not recognise the other assailants, and lastly, because it appeared from her evidence to be doubtful whether she saw the incident which took place in the courtyard. The learned Sessions Judge also pointed out that the First Information Report omitted to mention that appellants Nos. 3, 4 and 6 had attacked the deceased Chet Ram in the courtyard of Laxmi or anywhere else and this omission was a serious blow to the prosecution case. The learned Sessions Judge on this view held that the evidence on record did not establish the guilt of the appellants beyond doubt and he accordingly acquitted them,