Judgment:
1. The State has preferred this appeal against the judgment dated 27-7-1978 acquitting all the above named respondents under Section 302/34, I.P.C. passed by Sri. G.S.N. Tripathi, the then Addl. Sessions Judge, Basti.
2. To appreciate the facts of the case the following pedigree as quoted in the judgment would be of help.
Molhu|____________________________________________| | |Gur Charan Gur Prased Gokul| | |Ram Ajorey Died issueless |(Accused- | Respondent) _____________________________|____| |Sewa Lal Mewa Lal(widow Smt. Sobha) (Deceased)
P.W. 1 Smt. Dhanraji alias Prema alleging herself to be the wife of Mewa Lal (deceased) lodged an oral F.I.R. at P.S. Dumariaganj, District Basti on 1-3-1978 at about 2 P.M. in the night along with village Chaukidar Dukkhi and others and accused-respondent Jai Ram had also been taken having been apprehended on the spot. According to Smt. Dhanraji Ram Ajorey had filed a case against her husband and for that he had been coming to him for the last 3-4 days prior to the incident to compromise; that on 28-2-1978 at about sun-set Ram Ajorey armed with a Lathi came to his house and asked Mewa Lal to accompany him to the field saying that tomorrow there was date before Deputy Saheb. When her husband along with Ram Ajorey reached besides the field of Mangroo Ahir, Jai Ram accompanied Ram Ajorey along with his son-in-law Jawahar. Both of them were also armed with Lathis and when they reached the field. Ram Ajorey said that he could bring Mewa Lal with difficulty. After killing her he would settle the dispute finally and then all the three of them attacked Mewa Lal with Lathis. On hearing the cries Mangroo, Ghisa and Ibrahim also arrived there from the nearby fields. The three assailants escaped towards south, but Jai Ram was caught. Her husband died on the way to the police station on the bullock-cart. On the basis of the F.I.R. case was registered under Section 302, I.P.C. Investigation of the case was entrusted to P.W. 7, S.I. Sita Ram Yadava, who started the investigation from 3.05 a.m. and recorded the statements of the complainant Smt. Dhanraji, Dukkhi Chaukidar and Jai Ram accused and in the morning he prepared inquest report and sent the dead-body for postmortem and after investigation of the case submitted charge-sheet. At the trial the three respondents are charged under Section 302 read with Section 34, I.P.C.
3. To prove its case prosecution examined seven witnesses of whom P.W. 1 Smt. Dhanraji alias Prema is the alleged widow of the deceased, P.W. 2 Mangroo and P.W. 5 Ghisa are the other two eye-witnesses and they corroborated the prosecution story. P.W. 4 Head Constable Sadhu Tiwari proved the F.I.R. written by him and the entries in the G.D. regarding registration of the case. P.W. 3 had taken the dead-body for postmortem. P.W. 6 Dr. J. N. L. Srivastava had done the autopsy on the dead-body of the deceased on 1-3-1978 at 3.30 p.m. and proved the postmortem report (Ex. Ka. 10) according to which he noted as follows
Ante-Mortem Injuries
1. Lacerated wound 5 c.m. x 0.4 c.m. x bone deep 2 c.m. below right lower eye-lid-Obliquely placed.
2. Multiple contusions with parallel linear marks in an area of 30 c.m. x 20 c.m. on the left side of chest and back. The contusion over present in serveral directions.
3. Multiple contusions in an area of 24 c.m. x 10 c.m. over the front oval anterior side of left upper arm extending top of the shoulder to elbow. Contusions with parallel linear marks scattered in several directions.
4. Multiple contusions in an area of 30 c.m. x 8 c.m. over the right upper arm. Extending from shoulder to elbow joint.
5. Multiple contusions in an area of 16 c.m. x 14 c.m. over front of right thigh, contusions and scattered in various directions.
4. On internal examination membrances of brain were congested. There was fracture of left 2nd to 8th ribs. Left lung had collapsed and right lung was lacerated. Stomach was empty. Small intestines contained pasty material and large intestines were empty. In the opinion of Dr. Srivastava the death was caused due to shock and haemorrhage as a result of ante-mortem chest and lung injuries.
5. Lastly, P.W. 7, S.I. Sita Ram Yadava, I .O. deposed about the various steps taken by him in the course of the investigation.
6. On the other hand, though the accused denied their participation in the occurrence and alleged false implication due to enmity and Jai Ram alleged his arrest from his house by the police, in defence two witnesses namely, Mohammad Shafi (D.W. 1) and Jhilkai Singh (D.W. 2) were examined. D.W. 1 Mohammad Shafi deposed that Smt. Dhanraji was not the wife of deceased Mewa Lal nor she was his kept and that the dead-body of Mewa Lal was found in the morning; that Smt. Dhanraji was a leper and beggar; that Ghisa witness was also a leper. D.W. 2 Jhilkai Singh stated that Smt. Dhanraji was wife of Govind Harijan and that she was living in Mauza Chikaunia and arrived in the village about 5-7 years back.
7. The learned Sessions Judge, hence however, did not believe the prosecution evidence, hence acquitted all the accused-respondents. On being aggrieved, the State has preferred this appeal.
8. The law is well settled that appeals from acquittal are allowed only in exceptional circumstances. It is an extraordinary remedy. The appeal by Government should be made judiciously and only in cases where the judgment is so clearly wrong that its maintenance would amount to a serious miscarriage of justice or when a principle is involved or the question is one of great importance or of great public importance. The burden is on the Government to show that the acquittal is wrong and strong and urgent grounds must be made out to justify interference. When there is reasonable doubt as to the guilt of deceased, the High Court will not interfere nor will it interfere merely because upon evidence the lower court might have come to the conclusion of guilt, unless it is quite clear that the acquittal is wrong. The High Court will not also interfere merely because it might itself, as an original court, have arrived at a different conclusion. Where an appeal against acquittal turns on the facts it would only succeed if the judgment of acquittal is clearly wrong and involves a miscarriage of justice or when the trial judge has erred in failing to draw the clear, indubitable and irresistible inference from the facts or when the trial courts appreciation of evidence is vitiated by failure to take note of a very important fact or where finding of fact is based on an erroneous rejection of evidence. Thus the High Court will only interfere if it is proved without any doubt not only that the accused is guilty, but that he has been acquitted on unreasonable grounds.
9. On behalf of the State learned Government Advocate pointed out that there was a very important circumstance in favour of the prosecution that the respondent Jai Ram was apprehended on the spot and was taken to the police station and the report was also recorded at the dead of night and that the other five witnesses were working in the fields nearby, hence were natural witnesses of the occurrence. He also urged that there was no reason to disbelieve that Smt. Dhanraji was living as a wife of the deceased and had allowed her husband to the scene of occurrence.
10. The motive for the respondents to commit the murder is said to be a litigation in between the deceased and Ram Ajorey. P.W. 1 Smt. Dhanraji admitted in her cross-examination that Mewa Lal was son of Gokul. She has further admitted that Gur Charan and Gur Prasad were two other brothers of Gokul and Sewa Lal was brother of Mewa Lal, who died; that son of Sewa Lal is alive. She further stated that suit for partition was filed by Ram Ajorey. In view of the fact that there is a son of Sewa Lal brother of Mewa Lal. Ram Ajorey, cousin of Mewa Lal could not have gained anything after murdering him. In any event he would have got the share to which he was entitled. Hence prima facie in the absence of any evidence that deceased Mewa Lal was in occupation of larger share than to which he was entitled and did not want to part with it, there could be no motive for Ram a jorey to kill him. Smt. Dhanraji has further admitted that witnesses Mangroo, Dukkhi Chaukidar and Anganu are real brothes and Mewa Lal had sold some of his plots to Mangroo, Angnu and his brothers. She herself denied that they had taken possession over larger share. To the question whether Smt. Shobha Rani, wife of Sewa Lal had filed a case against Mangroo and Angnu that they had taken possession over larger share and that Ram Ajorey has a witness for Shobha Rani, she expressed her ignorance. She however, admitted that the plot in which Mewa Lal was killed was in possession of Mangroo and he had grown gram there in and that Mewa Lal sold that plot to. (sic)
11. Regarding the occurrence, according to the prosecution itself it had taken place after sun-set and its report was lodged in the night at 02.00 hrs. i.e. after about eight hours. The distance from the scene of occurrence is six miles. Dukkhi Chaukidar, who is highly interested person as he had purhcased plots from Mewa Lal along with his brothers and against whom application had been moved Shobha Rani and Ram Ajorey, was a witness for Shobha Rani, had also arrived and had taken Smt. Dhanraji to the police station to lodge the report. Even if all these facts are admitted that Smt. Dhanraji was living as a wife or kept of the deceased and that the occurrence had taken place in the evening after sun-set, from the facts and circumstances of the case the evidence of the prosecution eye-witnesses that they had seen the respondents attacking the deceased with Lathis and the respondent Jai Ram was apprehended on the spot, is highly suspicious.
12. It does not appear at all worthy of credence that Ram Ajorey would have gone to fetch Mewa Lal at that time and Mewa Lal would have accompanied him as stated by Smt. Dhanraji (P.W. 1), that he was feeling very hungry because he had returned from the market at that time and had taken the meal in the morning at about 10 a.m. and she had started cooking meal for him. There was no urgency and moreover, this part of her testimony prima facie is an improvement over and above her version under Section 161, Cr. P.C. as well as in the F.I.R. Subsequently on finding in the post mortem report that the stomach was empty and there was only some pasty material in the small intestines. This story has been cooked up. Even if the same is believed and it is further believed that after a few minutes of the departure of Mewa Lal along with Ram Ajorey Smt. Dhanraji had followed them feeling suspicious, On natural instinct it is further doubtful that from the place where she is alleged to have heard the cries and thereafter on reaching the scene of occurrence could see the assailants attacking her husband. She had admitted that she was at the tube-well of Ram Ajorey when she heard the cries. She had admitted in her cross-examination that the tube-well was at a distance of about 200 paces from the place where her husband was attacked. It is indeed doubtful that she could reach the scene of occurrence before the assailants had escaped. The other two witnesses, namely P.W. 2 Mangroo as well as P.W. 5 Ghisa were also at a sufficient long distance from the scene of occurrence. In the site plan (Ex. Ka 9) prepared by the Investigating Officer the place 'C' is shown where Mangroo was and the distance has been shown as 35 paces, while Ghisa was at place 'B' and it was 100 paces away from the scene of occurrence. Another witness Ibrahim was at place 'E' at a distance of 115 paces. Smt. Dhanraji has further stated that she had not run from the tube-well, but had moved normally and that by the time she reached the place of occurrence the assailants had already escaped 50-60 paces towards south after attacking Mewa Lal. She has further stated that all the witnesses had reached almost simultaneously. Mangroo (P.W. 2) has also, however, stated that he was in his field in which the murder had taken place. He was gathering (Lahi), that Jai Ram and his 'Sala'/ Jawahar (brother-in-law) were sitting there, Ram Ajorey arrived with Mewa Lal and Ram Ajorey said that he had brought Mewa Lal with great difficulty and exhorted Jawahar and Jai Ram to kill Mewa Lal, all the three attacked him with Lathis; that Smt. Dhanraji was at the tube-well at that time and came running shouting from there, while Ghisa and Ibrahim had arrived there; that he and others chased the accused and succeeded in apprehending Jai Ram. P.W. 5, Ghisa has stated that he was also in his field and on hearing the alarm Mangroo and Ibrahim also reached there and they saw that the respondents were attacking Mewa Lal and Smt. Dhanraji also arrived there running and weeping; that they had chased the accused and succeeded in apprehending Jai Ram. He has admitted that his field was at a distance of 100 paces as shown in the site-plan. It is indeed very doubtful that he from the distance of 100 paces and Ibrahim at a distance of 115 paces could arrive and succeed in apprehending Jai Ram after covering more than 100 paces.
13. P.W. 1 Smt. Dhanaraji alias Prema has further deposed that while she was taking her husband to the police station along with Dukkhi Chaukidar and others in the way Ram Ajorey and Jawahar stopped them and attempted to assault them and that she had so stated at the time of lodging the report and also to the Investigating Officer, but could not explain why the same was not written there. It was such an important circumstance that if there had been any truth in it the same would have been mentioned in the F.I.R. but she has subsequently admitted that Ram Ajorey was apprehended near the police station. If Ram Ajorey had been responsible for the murder of the deceased he would not have gone to the police station. According to Ram Ajorey he was going to the police station himself to lodge the report when he was apprehended.
14. She has further stated that accused-respondent Jawahar was son-in-law of Ram Ajorey, but she subsequently admitted that Ram Ajorey had two daughters, one was about 30 years old and the other 12 years old and both were unmarried. Thus, her statement that Jawahar is son-in-law of Ram Ajorey is patently false and this relationship has been assigned to implicate him along with Ram Ajorey. P.W. 1 Smt. Dhanraji further admitted that she had received the copy of the F.I.R. after the dead-body was sent in the morning, that further supports the defence version that the report was not lodged in the night as alleged nor Jairam was taken to the police station, but he was subsequently arrested from the house of Ram Ajorey in the morning. From the record it is further clear that Dukkhi Chaukidar had a grouse against Ram Ajorey and others and therefore, he had taken active interest in the case in getting these accused-respondents implicated and made his own brother Mangroo (P.W. 2) as an eye-witness of the occurrence. In view of the above circumstance, prima facie, the decision of the trial court acquitting the opposite parties cannot in any manner be said to be wrong least to say that it amount to serious miscarriage of justice and, therefore, does not call for any interference.
15. The appeal is, therefore, dismissed. The acquittal of the opposite parties is upheld.