SHYAMA Vs. STATE OF U P

JUDGEMENT

(1.) PALOK Basn, J. Shyama, Revti, Gyan Singh and Bhagwan Singh have filed this appeal against the judgment and order dated 3-1-79 passed by the V Addl. Sessions Judge, Agra in S. T. No. 160 of 1977 connected with S. T. No. 123 of 1978 : where under all the appellants have been convicted under Sections 302/149,i. P. C. and sentenced to imprisonment for life and further convicted under Section 148,i. P. C. and sentenced to three years R. A fifth accused Pooran was also mentioned in the First Information Report but died during the investigation.

(2.) THE charge against the appellants was that on 12-2-1977 at about 2:30 p m. they formed an unlawful assembly in village Taharpur, P. S. Saiyan, district Agra near about the field of Janak Singh, the common object of which was to cause death of Khacheri being variously armed with Tanchia, knife, sword and Banka and, therefore, they had committed the offence punishable under Sections 302/149 and 148,i. P. C. P. W. 1, Ramji Lal is said to have lodged a First Information Report at the P. S. Saiyan at 4. 30 p m. the same day. He mentioned along with him two other persons as eye-witnesses of the occurrence, namely, P. W. 3, Gokul and P. W. 4 Pooran. THEre is no other eye-witness in this case. 4. THE F. I. R. was registered by P. W. 6, Beni Singh, Head Constable, vide Chick F. I. R. (Ex. Ka. 12) and consequently the case was registered. 5. P. W. 4 Lakhan Singh took up the investigation in the absence of Station Officer and went to the spot at once. He prepared site-plan (Ex. Ka. 5), inquest report on the dead body of Khacheri and took samples of plain and blood-stained earth from the scene of occurrence. An empty catridge was also found on the spot. Recovery memos with regard to these items was also prepared. He searched for the accused but they were not available. THEre fore, he examined the witnesses Ramji Lal, Gokul and Pooran. After this, Station Officer had come back to join his duties and consequently took up the investigation. 6. THE appellants denied their participation and claimed their false implication due to enmity. THE suggession on their behalf was that the deceas ed was done to death under unknown circumstances inasmuch as neither the in former nor any of the eye-witnesses was present and a concocted case with the police held has been set up against the appellants. THEy also examined D. W. 1, Nityanand Sharma, D. W. 2, Pyarey Lal, D. W. 3, Om Prakash. D. W. 4, Devi Singh and D. W. 5, Ram Kishan in order to substantiate the defence version that the appellants were attending a marriage in their village and had no reason to be present at the time of occurrence at the site. THE last defence witness mentioned above was examined to prove the fact that the Chick F. I. R. of Case Crime No. 15 of 1977 (i. e. the instant case) reached the office of the Circle Officer on 4-3-1977 suggesting thereby that investigation had proceed ed leisurely and even copy of the F. I. R. to the high officers reached very late. 7. Sri Krishna Kapoor, learned counsel for the appellants and Sri A. K. Dwivedi, learned A. G. A. on behalf of the State have been heard at length and all the records have been examined thoroughly. 8. A perusal of the F. I R. as well as the statement of P. W. 1, Ramji Lal would indicate that one Pooran (son of Churi) of his village was reported to be a member of a dreaded dacoit Moora's gang and Rs. 7,000 was the reward declared for his arrest by the State Government P. W. 1, Ramji Lal and Kacheri (deceased) got the said Moora arrested which annoyed Pooran (accused in the instant case ). Pooran had also fired at Khacheri and Ramji Lal on an earlier occasion for which he was being prosecuted. THE said cases were pending against Pooran. For these reasons Pooran was out to liquidate Kacheri (deceased) and P. W. Ramji Lal. This discussion of the motive part as stated by P. W. 1, Ramji Lal would leave no room for doubt as to the existence of equal motive for killing Khacberi as well P. W. 1, Ramji Lal. Normally if both the persons were to be available to Pooran and his associates, it would be difficult to expect that they will kill only one of them and spare the other one. 9. THE case, according to F. I. R. was that Khacheri along with P. W. 1, Ramji Lal, Khacheri's father-in-law P. W. 3, Gokul and Khacheri's cousin Pooran (son of Bhwani) had gone to stack mustard crop in the threshing floor (Khalihan) after having done so were returning home around 2. 30 p. m. Khacheri was a head of them and when he had reached Janak Singh's field then Pooran, son of Churi and the four name appellants, variously armed as stated above, being accompany by 2-3 unknown persons sudddenly came out from the field of Janak Singh and caught hold of Khacheri, who at once shouted and started running towards the village. All the five assaillants chased him and fell him in the gram field of Janak Singh and killed him with the knife and pharsa, after which Pooran (son of Churi) said that he had liquidated that day and fired twice towards the Minor. It was further stated in the F. I. R. that one of the assailants had a, gun, Pooran, son of Churi had a country-made pistol hanging by shoulder and was carrying a Pharsa in his hand, Shyama was armed with Tanchia, Revti was armed with a knife and Cyan Singh was having a sword while Bhagwan Singh was armed with Banka. 10. From a perusal of the aforesaid F. I. R. it is apparent that P. W. 1, Ram ji Lal and the other two eye- witnesses were going together with Khacheri (deceased) after having finished their work in the threshing floor (Khahhan ). 11. In the testimony of P. W. 1 Ramji Lal before the court two signi ficant statements have been made. Firstly, he had said that deceased Khacheri had left the Khalihan 10 minutes before he and other two eye witnesses, Gokul and Pooran, left it. Secondly, he had said that when the incident had happened neither he nor any of the eye-witnesses had raised any noise or hue and cry whatsoever. 12. THE aforesaid two statements are very relevant in order to evaluate the testmony of this witness P. W. 1. As has been noted above the consistent prosecution case was that whatsoever motive was attributed to Pooran, son of Churi and his accociates for liquidating Khacheri (deceased) the same motive, if not more, was available as against P. W. 1, Ramji Lal also. THErefore, if these two brothers were going empty handed together, there was every likelhood of both of them being liquidated together. But if that were so, nobody would have witnessed the occurrence. Thus being conscious of this fact that the narration in the F. I. R. was that all the four had set out for the village together, a substantial improvement was made by P. W. 1 in the court to the effect that the deceased had left the place 10 minutes earlier. This was perhaps the only way by which Khacheri (deceased) would be separated from P. W. 1, Ramji Lal and thereby leave Ramji Lal alive to witness the assault on the deceased Khacheri. But then this is not all. If Ramji Lal was at a little distance and had shouted the said shout would have attracted the attention of Pooran (son of Churi) and his associates towards Ramji Lal and again, the very purpose of separating himself from Khacheri (deceased) would have been frustrated. At this stage it may be remembered that in his statement P. W. 1, Ramji Lal was contradicated his earlier statement to the Investigating Officer. THE said statement was "all of us had "raised sufficient hue and cry but no one else had come". He failed to say as to how this statement was recorded by the Investigating Officer. However, in his statement in the court he candidly said "jab WAQYA HO RAHA THA MAINE YA AUR KISI NE SHOR NAHIN MACHAYA THA" (when the incident was happening neither I nor any one also had raised any hue and cry or had shouted ). By this contradiction it is well established that P. W. 1, Ramji Lal has been made to say the things which suited the prosecution story. Needless to remember that Pooran, son of Churi was already armed with a (sic) and according to the statement of the P. W. he had fired (sic) also but towards the Minor. Even the least indication of the presence of P. W. 1 Ramji Lal would have seen him firing at Ramji Lal and liquidate him also. It is notable that all the alleged three eye-witnesses were admittedly empty handed. THEra would not have arisen any occasion for Poorau and his four associates, variously armed with lethal weapon to have spared them had they really shouted and disclosed their presence to the assailants. THEse two improvements, therefore, create enough doubt for Ramji Lal to be present at the scene of occurrence. 13. Coming to the statement of P. W. 3 Gokul, he admittedly is the father-in-law of Khacheri (deceased), in his statement, however, he has said that his brother's daughter was married to Khacheri and not his own daughter. However, his further statement is that he and other witnesses had shouted at the top of their voice in order to attract some villagers. This creates a contradiction which is serious enough for the reasons stated in the preceding paragraph i. e. with the statement of P. W. 1, Ramji Lal. This apart, he has admitted that his original holdings are in Nagla Sawaljit where he has 5 acres worth fields. He has further admitted that has own village is at a distance of five miles from the village of Khacheri. He has further admitted that his son and nephews have different fields in Nagla Sawaljit and they have separate cultivation. Consequently, his presence in the village of occurrence much less at the Khalihan appears to be wholly by chance. His presence, therefore, does not appear probable and consequently his statement does not inspire confidence. 14. Coming now to the last eye-witness P. W. 4, Pooran, he, in his deposition, alleges himself to be a resident of the village of the deceased. THE defence seriously challenged this and had said that he was in fact resident of Jamuna Bridge which is about 25 miles away from the village of the inci dent. Further case of the defence was that P. W. 4. Pooran was a professional witness and had appeared on behalf of the police in various case. Several judgments, copies of charge-sheets and depositions have been filed on behalf of the defence which indicate that Pooran, son of Bhawani, resident of Jamuna Bridge, was appeared as witness in cases such as 13 Gambling Act, 25, Arms Act and other I P. C. cases. This witness admits in the cross-examination that he does go to Jamuna Bridge and does the work of supplying ice in summers and during other seasons he comes back to live with his brother. It may be notable that the parentage of the P. W. 4, Pooran and Khacheri (deceased) are different. Moreover, he further admitted that there is no field, grove or any land in his name in village Taharpur. THEn he said that he used to do agricultural operations with other persons on share (Batai ). No documentary proof of evidence is forthcoming indicating such a cultivation at the behest of P. W. 4, Pooran. He has denied that in State v. Bhajan Lal, State v. Laxman Chand, Stale v. Chandan, State v. Shishupal, State v. Tula Ram etc, he has appeared as witness. However, from the documents filed it is more than apparent that the witness on behalf of the prosecution in those cases was Pooran, son of Bhawani, resident of Jamuna Bridge. Learned Trial Judge perhaps was misled on this aspect of the matter and he went on to record a finding chat in those cases one Pooran, son of Bhawani, was a witness but it could not be established for cross examination in the instant case that this P. W. 4, Pooran was really living in Jamuna Bridge. This reasoning of the Trial Judge, to say the least, is fallacious and he should not have hesitated in holding that the witness deposing was in fact resident of Jamuna Bridge, which he was concealing. In view of the aforesaid discussion no reliance, whatsoever can be placed on the testimony of P. W. 4, Pooran also. 15. Apart from the aforesaid discussion of individual witnesses, there is enough moral conviction in denouncing the story set up by the first in formant P. W. 1, Ramji Lal in the F. I. R. when he has named such witnesses in his report, both of whom are not the residents of village of occurrence and one of whom is the father-in-law of the deceased and the other one is a professional witness. A cumulative effect of this is that no sanctity is attached to either the F. I. R. lodged by the P. W. 1, Ramji Lal or his statement, nor any of the statements of eye-witnesses inspire confidence. 16. Further it may be relevant to point out here that the prosecution has, in the instant case, not filed any report from the Chemical Examiner or Serologist indicating that the sj-called blood-stained earth had really been stained with human blood. Normally the insistence of the courts on such report is only to be doubly sure about the fact that the place of occurrence is the one which the prosecution eye- witnesses allege. This may all the more be insisted upon where the eye-witness account consists of interested and partisan witness. For the reasons stated above, the absence of Serologist and Chemical Examiner's report in the instant case is all the most fatal to the prosecution case. 17. In view of what has been stated above it appears that none of the eye-witnesses was present on the scene of occurrence and, therefore, the pro secution case has not been proved beyond reasonable doubt. 18. Consequently, the appeal succeeds and is allowed. THE con viction of the appellants, Shyama, Revti, Gyan Singh and Bhagwan Singh under various sections mentioned above, are set aside and they are acquitted of those charges. THEy are on bail. THEy need not surrender. THEir bail bonds are cancelled and the sureties are discharged. Appeal allowed. .