HARI OM Vs. STATE OF U.P.

JUDGEMENT

(1.) A first information report was lodged at P.S. Jaitipur, District Shahjahanpur at about 12.15 p.m. on 23.4.78, conveying the murder of one Ram Kumar in the field of Pyare Lal in village Anandour Saroda by Hari Om, the accused appellant. At about 9.30 a.m. first information report was lodged by Kedar, who was shown to he a brother of the brother in law (SABOO) of the father of the deceased. The prosecution story was in the form of that Ram Kumar has sold all his property and has been living with Hari Om, for the last about two years. Ram Kumar had borrowed Rs. 2,200.00 from Hari Om. A day before the incident i.e. 22.4.78, the report also conveyed, Kedar had gone to see Ram Kumar on getting an information about his indisposition. In the evening of 22.4.78 Ram Kumar had shown his moved to leave the house of Hari Om and to move and live with Kedar or his brother Balak Ram (Mausa) in village Gogapur. There was some demand by Hari Om for payment of his loan, but Ram Kumar declined to pay the same as he had nothing. For the date of occurrence it was contended that Kedar and Ram Kumar left for their house in village Gogapur from Jora Shuld and when they reached near the field of Pyare at about 9.30 Hari Om came from behind with his double barrel gun and asked Ram Kumar to stop. Ram Kumar complied and on reaching near Hari Om again made a demand of his money, saying that he would not let him go without paying the same. The matters picked up heat and ultimately Hari Om fired at Ram Kumar. He declared that he would not let him go alive without making payment. The fire hit Ram Kumar in the right side of his belly. whereupon he fell down and died instantaneously. According to the first information report, the dead body was left under-the watch of Dwarika Kachhi, Shopi Kachhi and Daya Ram Pandit, who had come to the spot on the alarm raised by Kedar Nath. Kedar Nath went to lodge the report.

(2.) The investigation proceeded and the Sub-Inspector of Police, P.W.7 Kunwar Pal Singh Conducted inquest and prepared other necessary papers and sent the body for post mortem examination on the same day, i.e. 23.4.78 He also took blood stained and plain earth from the spot. A memorandum prepared in this behalf in Ex. Ka. 10 post mortem examination was conducted by Dr. R.S. Pandey on 25.4.78. He had found a lacerated fire arm wound about 1"x 1" circular on the right side of the abdomen below right nipple and above the umbilicus. The intestine were coming out of it and there was also blackening around the whole wound. He had also recovered wads and 22 pellets from the lower me sentry and intestines. Abdominal cavity also contain some 3 points of blood. The trial court framed 3 points charge under Sec. 302 I.P.C. and prosecution examined P.W.1 Dwarika P.W.2 Kedar, P.W.3 - Daya Ram, P.W. 4 Shopi, P.W.5 Hardwari, P.W.6 Sonpal Singh and P.W.7 Kunwar pal Singh had investigated the case. The Medical Officer who had conducted the post mortem examination and other formal evidence, relating to the carrying of the corpes to the District Head Quarter was not led as the genuineness of all those papers was admitted by the defence.

(3.) Out of the above said witnesses, P.W.1 Dwarika, P.W.3 Daya Ram, P.W. 4 Shopi were declared hostile and some leading questions were put to them, as they did not state to have seen the accused firing at the deceased. They were confronted with their statements said to have been recorded under Sec. 161, Crimial P.C. and they denied, that in any case could not amount to, a proof to connect the accused with the murder. In fact, according to the first information report itself, these witnesses had only come after the occurrence. It could be that they might have recognised the assailant when he was running away but that is not a mist. A failure to recognise even a known person at a particular moment would not disprove his presence and the position would remain only to the effect that their statements would not prove the presence of the accused. One thing certain from the statement of these P.W. 1 witnesses is that the murder took place at about 9.00 or 9.30 in the morning and Owarika had reached there soon after. P.W. 1 Owarika had also stated that one more person was raising alarm there and he did not know him. Naturally Kedar is not a resident of that village and there is no wonder if he was not known to Dwarika. The other aspect of the prosecution case was made out in the cross-examination of this witness on behalf of the accused himself and it was in the form that Ram Kumar had sold all of his land and was living alone with Hari Om. It was also shown in his cross-examination that Ram Kumar was a distant cousin (might be an agnate) of Hardwari, the other witnesses, whose evidence shall be considered below. It was suggested to this witness that there was bad blood between Hardwari and Hari Om. Though this witness had denied them, even if it was there could it in any way assure for the benefit of Hari Om in the matter of murder of Ram Kumar. The answer can only be simple No. P.W. 3 Daya Ram was another witness. He had also stated that Ram Kumar was murdered by fire in the morning at about 9.00 a.m. on the next day of POORNMAST. He had also proved the relationship of Rarer Kumar and Kedar Nath, as mentioned above. He had also stated that he had not seen Kedar there, but that can be either a matter of Commission to mark, something or an interested statement to save this accused, who belongs to his village. He had denied the defence suggestion that Ram Kumar was murdered in the early morning. P.W. 4 Shopi had stated that he had seen a person running towards north after hearing the gun fire and he could not recognise him. It is also remarkable that according to the first information report itself, the assailant had made good his escape towards north east. His statement that he had not seen anybody else there, naturally would not inspite confidence, as Kedar Nath could not have known this fact unless he was present at the spot at the time of the occurrence.