Ramesh & Anr vs State Of U.P

Ramesh & Anr. .... Appellants

Versus

State of U.P. .... Respondent With

CRIMINAL APPEAL NO. 364 OF 2005

Mani Ram .... Appellant

Versus

State of U.P. .... Respondent

With CRIMINAL APPEAL NO. 548 OF 2005

Ram Kumar .... Appellant

Versus

State of U.P. .... Respondent

JUDGMENT

V.S. SIRPURKAR, J.

1. This judgment will dispose of Criminal Appeal No. 184 of 2005,

Criminal Appeal No. 364 of 2005 and Criminal Appeal No. 548 of 2005.

First mentioned Appeal has been filed by Ramesh, original accused No. 2

(A-2) and Ram Nath, original accused No. 5 (A-5), while the second 2

mentioned Appeal has been filed by Mani Ram, original accused No. 3 (A-

3). The last mentioned Appeal has been filed by Ram Kumar, original

accused No. 1 (A-1). All of them were convicted for the offences under

Section 302 read with Section 149, 147 and 148 of the Indian Penal Code

(hereinafter referred to as "IPC" for short) by the IIIrd Additional Sessions

Judge, Unnao. They were tried alongwith two other accused persons,

namely, Swami Nath @ Swami Dayal, original accused No. 4 (A-4) and

Ram Naresh, original accused No. 6 (A-6). Even these two accused

persons A-4 and A-6 were also convicted alongwith the appellants herein,

however, it is reported that Swami Nath @ Swami Dayal (A-4) has not filed

any appeal, while Ram Naresh (A-6) is already dead. That leaves us with

only the four accused persons.

2. All the six accused persons originally faced a charge under Section

302 IPC. Appellants Ram Kumar (A-1), Mani Ram (A-3) and Swami Dayal

@ Swami Nath (A-4) were tried substantively for the offence under Section

302 IPC on the allegation that they had committed murder of one Raj

Kumar (deceased) on 24.10.1978 at about 5 p.m. near a well located to

the south-east of the house of Pancham in Village Karia Khera, Police

Station Kotwali, District Unnao. They were also alternatively charged with

other accused for the offence under Section 302 read with Section 149

IPC. Some accused persons were also tried under Section 148 IPC and 3

two of them, namely, A-5 and A-6 were tried for the offence under Section

147 IPC.

3. The deceased Raj Kumar, who was about 24 years old, was the real

brother of Prithvi Raj (PW-1), the complainant. They had two other

brothers and five sisters. One of the sister is Daya Wati (PW-5), aged

about 17 years at the time of the incident. Ram Kumar (A-1) and Ram

Nath (A-5) are the real brothers, while Ramesh (A-2) is the son of their

cousin. Excepting Mani Ram (A-3), all the accused persons were from a

single family. There was some enmity between the family of the accused

and the family of the deceased. There were number of murders. Ram

Raj, who was one of the brothers of Prithvi Raj and Raj Kumar (deceased)

was murdered on 12.6.1977. In that murder case, Prithvi Raj (PW-1) had

named 7 assailants, out of whom one was Ram Naresh (A-6). In that

case, deceased Raj Kumar was a witness. In the murder case of Ram

Raj, the prosecution evidence was to begin from 6.11.1978, i.e., about 12

days after the incident, which took place on 24.10.1978. In short, there is

a strong motive of enmity in between the accused party and the

complainant party.

4. It so happened that on the fateful day, i.e., 24.10.1978, Raj Kumar

(deceased) went to his tubewell, which is at about 100-125 paces from his

house and after watering the field, he came back home at about 4.30 p.m., 4

as there was no electric current available. He again started for his

tubewell and his sister Daya Wati (PW-5) and his mother and wife of

Prithvi Raj, i.e., his sister-in-law also followed him. When Prithvi Raj came

out of his house, Prahlad (PW-4) met him. Prahlad had come to the village

to purchase the seeds. Two other persons also met him there and they

also started towards the tubewell. The moment, they reached near the

Neem tree situated at a distance of 15 paces from the house of the

deceased, all the accused accosted him, surrounded him and dragged him

by pulling near the well upto a distance of 10-15 paces. Ram Naresh (A-6)

then exhorted that Raj Kumar (deceased) should be murdered in the same

manner in which his brother Ram Raj was murdered, so that Raj Kumar

may not appear as a witness. Thereupon, Mani Ram (A-3) fired a shot

from his country made pistol, which was followed by a second shot of fire

from the country made pistol of Swami Nath (A-4). Ramesh (A-2) put a

cartridge into a country made pistol and gave it to Ram Kumar (A-1), who

also fired a shot at Raj Kumar, due to which Raj Kumar died on the spot.

All the accused persons then ran away. Because of the injuries, blood

started coming out and the clothes of Raj Kumar were soaked. They

included, in all, 7 Exhibits. Within about 15 minutes, at about 5.15 p.m.,

Prithvi Raj (PW-1) came back on his cycle from Village Dewara Kala,

where he had gone for doing his duty as Panchayat Sewak. He found the

dead body of Raj Kumar. He talked to his wife and mother and his sister 5

Daya Wati (PW-5). Other witnesses, namely, Prahlad (PW-4) and

Rajendra Singh and Surendra (both not examined by the prosecution)

were also present there. After knowing about the incident from the eye-

witnesses, Prithvi Raj (PW-1) himself wrote a First Information Report

(FIR) Exhibit Ka-1 and went to Police Station Kotwali, situated at a

distance of about 10 km. from the place of the occurrence, where he

lodged it at 6.30 p.m. On the basis of this written report, check report

Exhibit Ka-3 was prepared and the further investigation started. In the FIR,

all the 6 accused persons were named and the whole incident was also

narrated. The matter was investigated by D.P. Tiwari, S.I. (PW-6) and

after the usual investigation and recording the statements of the witnesses,

as also after holding the Inquest Panchanama and Spot Observation

Panchanama, the body was sent for post-mortem. After the completion of

the investigation, the chargesheet came to be filed. Dr. S.M. Tripathi (PW-

2), who had performed the autopsy, found five injuries on the body of Raj

Kumar (deceased), three being the entry wounds and two being the exit

wounds. He also confirmed that all the three injuries were sufficient, in

ordinary course of nature, to cause death.

5. Accused persons abjured guilt. Two eye-witnesses, namely,

Prahlad (PW-4) and Daya Wati (PW-5) were examined by the prosecution.

Prithvi Raj (PW-1) spoke about the FIR, while Dr. S.M. Tripathi (PW-2)

spoke about the medical aspect. The only other relevant witness is D.P. 6

Tiwari, PW-6, who was the Investigating Officer. The defence did not

prevail and all the six accused persons came to be convicted. The

accused persons filed appeal before the High Court, however, their

appeals failed and that is how the four accused out of the original six

accused persons are before us, challenging their conviction.

6. Before the High Court, the criticism levelled was that the prosecution

stood on the basis of the interested witnesses like Prahlad (PW-4) and

Daya Wati (PW-5). The defence severally criticized the non-examination

of the other two witnesses, namely, Rajendra Singh and Surendra, who

were admittedly present and also the other two ladies, namely, Nanhakki

and Ram Piyari, who were claimed to be present in the FIR. It was further

urged before the High Court that the story of the FIR having been recorded

at 6.30 p.m. was a myth and in fact, the FIR was ante-dated. All these

arguments were repelled by the High Court. The High Court came to the

conclusion that the evidence of Prahlad (PW-4) and Daya Wati (PW-5)

were absolutely trustworthy and stood the acid test of cross-examination.

The High Court further held that there was enough support in corroborating

evidence, inasmuch as in the FIR itself, names of all the accused persons

alongwith the part played by each of them was reflected. It was also held

by the High Court that there was no possibility of ante-dating the FIR. The

factum of this murder was mentioned in the other FIR, wherein it was

complained that the complainants in this case have caused the murder of 7

one of the persons of the accused party and since that FIR was already

recorded by 7.45 p.m., there was no question of ante-dating the present

FIR. The High Court also held that the medical evidence was enough to

prove the guilt. On this basis, the conviction came to be confirmed.

7. Before us, Shri Jaspal Singh, Learned Senior Counsel, appearing on

behalf of the appellants, who led the arguments and Shri P.N. Puri,

Learned Counsel, who supported the arguments of Shri Jaspal Singh, took

us through the whole evidence. Ordinarily, we would have refused to go

into the evidence, however, in his inevitable style, Shri Jaspal Singh

persuaded us to see the evidence of the two eye-witnesses. Seeing the

evidence, we are convinced that the eye-witnesses are truthful and were

rightly believed by the High Court. Shri Jaspal Singh criticized the

evidence of these two witnesses, suggesting that the enmity between the

parties should have been held on the backdrop before accepting the

evidence of these two witnesses. He is quite right, as the law on the

subject is that evidence of the interested witness should be appreciated,

keeping that enmity in mind. We find that both the Courts have, in a most

balanced manner, appreciated the evidence of these two witnesses.

When we see the evidence, it is seen that both the witnesses have given

the graphical description of the whole incident.

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8. It was tried to be suggested by Shri Jaspal Singh that Prahlad (PW-

4) had no business to be in the village and his evidence is almost in the

nature of a chance witness. The Learned Senior Counsel wondered that if

this witness had come to the village for purchasing the seeds, then he had

no business to go to the house of Raj Kumar (deceased) and further to

accompany him. It was also suggested by the Learned Senior Counsel

that ultimately he had never purchased the seeds, which was the object of

his visit to the place. The Learned Senior Counsel further urged that his

version on the dragging of Raj Kumar by the accused persons does not

really tally with the version given by Daya Wati (PW-5). We have

considered all these questions. Merely because Prahlad (PW-4) was not

from the same village, it cannot be said that he had no business in the

village. It has come in the evidence clearly that the distance between the

village of Prahlad (PW-4) and the village where the incident took place is

hardly about 1.5 km. Therefore, his coming to the village for purchasing

the seeds cannot be viewed with a suspicion. It is also not necessary that

Prahlad (PW-4) should have straightaway gone only to the shop of the

seeds and purchased the seeds. After all, Prahlad (PW-4) knew the

deceased Raj Kumar and in fact, Prahlad (PW-4) was cross-examined in

that direction. If Prahlad (PW-4) already knew deceased Raj Kumar and if

he went just to visit him, we do not think, this by itself, would be reason to

disbelieve his testimony. In villages, the people do normally go to each 9

other's house. Again the criticism that Prahlad (PW-4) had no business to

go and accompany Raj Kumar to his field, is also of no consequence, as

Prahlad (PW-4) might have walked alongwith Raj Kumar hardly for 20-25

paces. In fact, the distance between the house of Raj Kumar and his

tubewell is hardly about 100-125 paces, which has come in the evidence.

Therefore, even if Prahlad (PW-4) walked alongwith deceased, that by

itself, does not make his version suspicious in any manner. We have seen

the cross-examination. The cross-examination is lacklustre and nothing

has been brought in the same. The Learned Senior Counsel tried to

compare the evidence of Prahlad (PW-4) with evidence of Daya Wati (PW-

5) and pointed out that the theory of dragging was not supported in the

evidence of Daya Wati (PW-5). We have seen the original version (in

Hindi), which convinces us that even Daya Wati (PW-5) has said that the

deceased was actually pulled and pushed to the place, where he was

actually fired upon. Even otherwise, ordinarily the deceased would not

have gone alnogwith his enemy just by walking and his being dragged or

being pulled would be only a natural thing, which the witnesses supported.

There is one mistake on the question of Ramesh (A-2) loading the pistol

with cartridges and giving it to the other accused. That was obviously a

mistake, which has been explained by the Trial Court as in the cross-

examination of Daya Wati (PW-5), it has very specifically come that it was

Ram Kumar (A-1) who fired. Therefore, the confusion caused was also 10

cleared. Some minor contradictions were pointed out by Shri Jaspal

Singh, the Learned Senior Counsel, which in our opinion, have been rightly

disbelieved by the Trial Court and the High Court. After all, the

contradictions were bound to be there and in fact, those contradictions

have gone to support the truthfulness of the witness.

9. Lastly, Shri Jaspal Singh, the Learned Senior Counsel for the

appellants pointed out that there were about 12 witnesses. It was admitted

by both the eye-witnesses that there were about 10-12 persons, who were

watching the incident. Learned Senior Counsel severely criticized the

prosecution on not collecting any evidence. Now, it can be understood as

to why the other witnesses were not examined. The enmity between the

two parties was known, there was also murders and counter murders.

Under such circumstances, if the witnesses do not become available, it is

not the fault of the investigating agency. This is apart from the fact that the

Investigating Officer was not asked about the aspect of witnesses being

available. We do not, therefore, find fault with the judgment of conviction

recorded by the Sessions Judge and the High Court.

10. Reliance was placed by Shri Jaspal Singh, Learned Senior Counsel

on the law laid down by this Court in Ram Lakhan Singh & Ors. Vs. State

of Uttar Pradesh reported in 1977 (3) SCC 268, more particularly, on Para 11

24-31. We do not think that the case is relevant, as we are convinced that

on the facts of this case, the defence has no scope to stand.

11. Shri Puri, Learned Counsel for the appellants also supported the

argument and tried to contend before us that the evidence fell short of

proof beyond the reasonable doubt. We do not think so.

12. For the reasons given, we are of the firm opinion that the

prosecution proved its case to the hilt and the Trial Court and the High

Court were right in convicting the appellants/accused. In that view, all the

appeals are dismissed.

......................................J. (V.S. Sirpurkar)

......................................J. (Deepak Verma) New Delhi;

August 25, 2009.

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