UDAIRAJ RAI Vs. STATE OF U P

JUDGEMENT

(1.) B. P. Singh, J. Udairaj Rai and three others have come in appeal against the judgment and order dated 10th September, 1978, passed by Shri S. P. Sharma, Sessions Judge, Azamgarh, in Sessions Trial No. 85 of 1978 (State v. Udairaj Rai and others) under Section 302 read with Section 34 I. P. C.

(2.) BINDRA Rai has five sons i. e. Chandrapati Rai, Udairaj Rai, Lalta Prasad Rai, Palakdhari Rai and Ramanand Rai. Chandrapati Rai, Udairaj Rai, Lalta Prasad Rai and Satya Narain are the appellants in this case. Satya Narain is the son of Palakdhari Rai Ram Milan Rai was murdered on 26-6-1976 in the early hours of the day. Four years prior to the murder of Ram Milan an occurrence had taken place in village Kharagpur between the party led by the deceased Ram Milan Rai and the party led by the appellants. Cross-cases regarding the said occurrence were pending in courts in June, 1976. Both these cases were compromised after the murder of Ram Milan Rai. 4. Some time before June, 1976 a dacoity had taken place in the house of appellant Udairaj Rai. A report was lodged by Udairaj Rai regarding the said dacoity and the deceased Ram Milan Rai had been armed as one of the accused in that case. When the Polio, did not take any action against the deceased Ram Milan Rai, Udairaj Rai had filed a complaint against Ram Milan Rai and this case was pending in June, 1976. 5. The case of the prosecution, as has been unfolded in the evidence of PW-1 Harbansh Rai and other witnesses, may briefly be stated as follows. 6. Before the occurrence of this case, a case in the consolidation court was being contested between BINDRA Rai and one Ghurhoo. The deceased Ram Milan Rai, who was Clerk to a Counsel in Azamgarh Courts, used to do the Pairvi on behalf of Ghurhoo in the said case before the consolidation authorities. As a result of the litigation between ti _ parties, relations between the family of BINDRA Rai and that of the deceased were inimical. 7. On 26-6-1976 at about half an hour after sunrise deceased Ram Milan Rai had gone to answer the call of the nature in the grove which was towards north of his house. Harbansh Rai PW-1 was cleaning the land in front of his house. Ram Daya PW-4 (uncle of Harbansh Rai) was grazing his burlaloe towards the west of Ram Milan Rai's house, Smt. Phoolmati PW-2, mother of Rain Milan Rai was also present outside her house. Harbansh Rai, PW-1, his uncle and mother heard the cries of Ram Milan Rai and thereupon all these three witnesses rushed towards the grove from where the shouts of Ram Milan Rai had originate. On reaching inside the grove, these witnesses found that appellants Lalta Prasad Rai and Chandrapati Rai were catching hold of both the hands of Ram Milan Rai and appellant Satya Narain fired from his country-made pistol upon Ram Milan Rai. Ram Milan Rai fell down after receiving gun shots and thereafter appellant Udairaj Rai gave a spear blow upon the stomach of Ram Milan Rai. Upon the alarm being raised, all the four appellants bolted away from the scene of occurrence. When the witnesses reached near Ram Milan, they found that Ram Milan Rai was already dead. 8. A report of the occurrence was lodged by Harbansh Rai in Police Station Kandharapur, district Azamgarh. Routine investigation followed. During the course of investigation, the deadbody of Ram Milan Rai was sent for postmortem examination. Dr. G. M. Lai, PW-5, who was posted in civil Hospital, Azamgarh, in June, 1976, had conducted the Postmortem examination on the deadbody of Ram Milan Rai on 26-6-1976 at 5 30 p. m. and had found the following ante mortem injuries (1) Firearm wound oblique in shape 2"x 11"x cavity deep with tattooing and scorching of 2i"x3" around it on lower part of left ride chest opposing tenth rib. (2) Fire-and wound oblique in shape 3/4"xi"x cavity deep on the left side chest 1" below the left nipple with black scorching T'xl" around it. (3) Firearm wound 1"xi" on the midline of chest 3" medial to injury no. 2. (4) Firearm wound 1"xi"on the midline of chest x cavity deep 2" above the injury nos. 3 With black scorching 3"x2'. (5) Firearm wound 3/4 "xi" on the right side abdomen X cavity deep, 2 ' below the costal margin 3" lateral to the midline. (6) Firearm wound 1" x I/" cavity deep on the Bright side line 2j" lateral to injury no. 5. In the opinion of Dr. G. M. Lai, the death of Ram Milan Rai was caused due to shock and haemorrhage as a result of ante mortem injuries. 9. After completing the investigation S. I. Bhagwan Singh, PW-6 had submitted the charge sheet, Ext. Ka- 15 in the case. 10. At the trial, the accused pleaded not guilty and claimed to be tried. In all the prosecution examined six witnesses viz. , Harbansh Rai, PW-1, Smt. Phool Mati PW-2, Ramanand Mani Tiwari, PW-3, Ram Daya Rai PW-4, Dr. G. M. Lal PW-5, and Bhagwan Singh, PW-6. The prosecution also relied upon 20 documents. The accused did not lead any evidence in their defence. 11. The learned Sessions Judge accepted the evidence of the prosecution witnesses and held that accused Satya Narain was guilty of the offence under Section 302, IPC while the remaining three accused Udairaj Rai, Lalta Prasad Rai and Chandrapati Rai were guilty of the offence under Section 302 read with Section 34 IPC. All the accused were sentenced to life imprisonment. 12. We have heard the learned counsel for the parties and have gone through the record of the case in the light of the arguments advanced at the Bar. 13. The case of the prosecution regarding the main occurrence rests upon the evidence of Harbansh Rai PW-1, Smt. Phoolmati PW-2 and Ram Daya Rai PW-4. We have already detailed the version of Harbansh Rai PW-1. Both Srnt. Phoolmati PW-2 and Ram Daya Rai PW-4 have corroborated the evidence of Harbansh Rai PW-1 and have stated that it was accused Satya Narain, who had fired from his country- made pistol upon Ram Milan Rai. They have also stated that when Ram Milan Rai had fallen upon the ground, Udairaj Rai had also given a spear blow upon his stomach. 14. The fact that Ram Milan Rai was done to death in the morning of 26th June, 1976 in the grove in question was not disputed. The enmity between the parties from before the occurrence of this case was also not disputed. The case of the appellants is that they have been falsely implicated in this case. It was further contended on their behalf that no one saw the occurrence in which Ram Milan Rai met his death and the appellants were named in the F. I. R. and in the evidence of witnesses of fact out of enmity. 15. It is true that the appellants could have had a motive to liquidated Ram Milan Rai, as there was outstanding enmity between the two families, but enmity cuts both ways. In case the appellants had a motive to do away with Ram Milan Rai, the witnesses of fact could also have a motive to falsely, implicate the appellants in the crime in question in case they had not seen the occurrence and were not certain regarding the identities of the real assailants. All the three witnesses of fact are close relations of the deceased. Harbansh Rai PW-1 is the brother, Smt. Phoolmati PW-2 is the mother and Ram Daya Rai PW-4 is the uncle of the deceased. It is no doubt true that the evidence of the close relatives of the deceased cannot be thrown out or disbelieved for simple reason that they were the close relations of the deceased and the deceased had enmity with the appellants. But prudence requires that when only the close relatives of the deceased are forthcoming to depose regarding the occurrence to involve those persons as culprits with whom their family had enmity, the evidence of such witnesses is to be scrutinized with greater care and caution. 16. The first contention raised by the learned counsel for the appellants is that in all probability these witnesses could not have reached the scene of occurrence in order to enable them to see the assailant/assailants, who had murdered Ram Milan Rai. The above contention is not without force. It is admitted to Harbansh Rai PW-1 that the grove in question was at a distance of about steps towards the north from his house. He further admits that the grove in question was 100 steps X 40 steps in area and that the length of the grove was north-south. He also admits that the place of occurrence was 2,1 cubits from the north eastern corner of the grove. It follows that the place of occurrence was about 200 steps from the house of Harbansh Rai-PW-1 where he and Smt. Phoolmati were present. They have claimed to have reached the scene of occurrence on hearing the shouts raised by Ram Milan Rai. It is highly unlikely that the assailant/assailants would have waited for the arrival of the witnesses when only three or four shots were to be fired upon the deceased Ram Milan Rai. 17. Reference has also been made to contradictions in the evidence of these prosecution witnesses on one important aspect of the case. Harbansh Rai PW 2 has stated that only accused Lalta Prasad Rai and Chandrapati Rai had caught hold of the deceased. He has denied the suggestion that all the four accused had caught hold of the deceased. But this evidence stands contradicted by his earlier version which was given by him in the first information report wherein he had categorically stated that all the four accused had caught hold of Ram Milan Rai. Similarly, Ram Daya Rai PW 4 has stated that all the four accused were not catching hold of the deceased Ram Milan Rai. He further stated that the accused was chased upto 50,60 steps by him and other witnesses, but the above statement stands contradicted by his earlier version which was given by him before the investigating officer wherein he had stated that due to fear no one had chased the assailants. 18. Furthermore, it is admitted to Smt. Phoolmati, PW 2 that now-a-days she can seen only upto a distance of 5, 7 steps. She further admits that even at the time of occurrence her eye-sight was weak. It was quite unlikely that the eye sight of Smt. Phoolmati was not normal even at the time of the 'occurrence and she was not in a position to see the assailants from some distance. Again, in Smt. Phoolmati PW 2 has insisted in her evidence before the trial court that all the gun shots were fired after she had reached the scene of occurrence. She is an aged lady and must have taken some time to cover a distance o f 200 steps, and as pointed out earlier, it was highly unlikely that the assailants, would have waited for such a considerable time. 19. Thus, all these witnesses cannot be termed as wholly reliable. In this background, the legal evidence on record assumes importance. All these witnesses of fact have insisted in their evidence that accused Udairaj Rai had given a spear blow upon the stomach of Ram Milan Rai and that Ram Milan Rai had sustained a spear injury, but the above evidence stands belied by the evidence of Dr. G. M. Lai, PW 5, who has categorically stated that all the ante mortem injuries found on the person of the deceased Ram Milan Rai were caused by some firearm. In reply to a query from the court, he has stated that it would be wrong to say that injury No. 5 of the deceased was caused by some spear. Thus, there is a major contradiction in the medical evidence on the record and the evidence of witnesses of fact. It is true that there have been cases and there will be cases where the medical evidence is to be discarded in preference to the evidence of the witnesses of fact, but these are the cases where the evidence of witnesses of fact can be squarely classed as the evidence of wholly reliable witnesses. Where the witnesses do not fall into the category 'wholly reliable' the medical evidence cannot be thrown out lightly. 20. Yet there is another circumstance which throws doubt upon the prosecution version. The first information report in the case, according to the own admission of Harbansh Rai PW 1, was scribed upon the place of occurrence. When this reply was given by Harbansh Rai, PW 1, the learned Sessions Judge was not satisfied and he must have put a question to him. That question is not recorded in the evidence, but the reply of Harbansh Rai PW 1 is there. In reply to the court's question, Harbansh Rai, PW 1 stated that it was the Sub-Inspector himself, who had scribed the first information report upon the scene of occurrence. The contention of the appellant's counsel that the first information report was the result of the consultation with the local police stands strengthened by the above admission of Harbansh Rai PW 1. 21. In view of the above discussions, we come to the conclusion that the prosecution has failed to prove its case conclusively against the appellants and the appellants are entitled to the benefit of doubt. 22. The appeal is allowed. The conviction and sentences of the appellants are hereby set aside. They are on bail. Their bail bonds are cancelled and the sureties are discharged. Appeal allowed. .