Ram Chandra Chaudhary Vs. State of U.P. - Court Judgment

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- - was also not at all reliable. thus the conviction under section 201, ipc was also bad in the eyes of law.g.d. dube, j.1. this appeal has been preferred against the judgment and order of iv addl. district & sessions judge, ballia convicting and sentencing the appellant to undergo r.i. for a period of one year under section 147, i.p.c. four years each under sections 364 and 201 read with section 149, ipc and imprisonment for life under section 302 read with section 149 of ipc. originally six persons namely, ramnath, kedar pandey, jagdish pandey, ramshankar and shiv shankar alias shiv were tried for the offences punishable under sections 147, 364 and 302 and 201 ipc. the last two sections are read with section 149, ipc. the learned sessions judge has held ramnath, kedar pandey, jagdish pandey, ramashankar and shivshankar alias shiv not guilty and thereby acquitted them. only the appellant was found guilty of the offence for which he had been sentenced to various terms of imprisonment as stated above.2. the prosecution case was that 5 days before 17-1-1977 ramchandra, ramnath, and kedar had uprooted the bariya and pea crops from the field of deoraj. this fact was told by ramraj to deoraj and other persons of the village. consequently deoraj had gone to the house of ram chandra for making complaint. ram chandra had threatened at that time that he will kill and dispose of his dead body. at about 12 noon on 17-1-1977 ramraj had proceeded towards south for obtaining baraiya and pea plant for feeding his cattle. he did not return. at about. 6.30 p.m. in the night when it had become dark deora, paramhans pathak, sarvodeo pathak, laxman pandey, hargovind pandey were warming themselves from fire burning in front of the shop of satyanarain. they heard the shriek of ramraj. all these persons ran with gas, lantern, torches and kerosene lantern. on the other side bachcha ahir, ram sakal ahir, bhagwat pathak, parshuram pathak were coming towards their village after crossing a nala. they met deoraj and others who where rushing on hearing the shrieks of ramraj. bachcha ahir and others informed persons running towards ramraj that they had seen ramchandra ramnath, kedar pandey, jagdish, ramshankar and shivshankar carrying arms and taking ramraj and beating him. bachcha ahir and others had seen ram chandra, ramnath, kedar and jagdish holding pharsa and ramshankar and shivashankar holding lathi. they were beating ramraj and taking him towards south. when bhagwat pathak etc. had intervened they were threatend and they were told that they had no business to interfere in the matter. deoraj and their companion searched ramraj throughout night but his dead body could not be traced. a report of the occurrence was written by satyanarain which was handed over by him at police station kotwali. on the basis of this report a case was registered at 9.15 a.m. on 18-1-1977.3. tirath raj upadhya, station officer of p. s. kotwali took up the investigation. after making some initial investigation he deputed a police party to make a search of ramraj. on an information that the accused had gone to obtain legal advice he had directed one baleshewar yadav, sub-inspector and two constables to arrest the accused. when this party was going towards village jamuwa they met ram chandra and arrested him. ram chandra had informed on interrogation of investigating officer that he will point out the dead body of ramraj. thereafter ramchandra proceeded towards south and after crossing the nala took the party to the field of praveen pandey. there was crop of wheat, barley and gram in the field. the dead body of ramraj was recovered from the middle of the said field on the pointing of ramchandra. thereafter the investigating officer had conducted the inquest of the dead body. it was sent to the mortuary for the post-mortem. the post mortem was conducted by dr. k. n. pandey, p.w. 6. the doctor had found 16 incised wound and 6 linear contusion on the persons of the deceased. the details of these injuries are mentioned in the judgment of the lower court. it is not necessary to repeat them here. on internal examination the doctor found that the right frontal bone and parietal bone corresponding to injury no. 3 had fractured. frontal aspect of the membrane was lacerated, right side of the brain, corresponding to injury no. 1 was lacerated. larynx, traches, oesophagus and hyoid bones were cut. the doctor opined that these injuries were sufficient in the ordinary course of nature to cause death.4. after investigation chargesheet was submitted against the appellant and five others who have been acquitted. the prosecution had examined 10 witnesses. out of them pw 1 deoraj, pw 2 bhagwat pathak, pw 3 ram sakal, pw 4 hargovind pandey were witnesses of fact. rest were formal withnesses. the accused had pleaded not guilty to the charges. they alleged that they have been implicated in this case on account of enmity. the learned sessions judge had believed the prosecution case only against the appellant. the prosecution case regarding the others was not believed. on the basis of this conclusion the impugned order was passed.5. it has been argued by the learned counsel for the appellant that when the prosecution story was not believed in respect of the five accused then it could not have been believed in respect of the appellant. it was urged that the appellant could not be convicted with the aid of section 149 of the indian penal code because it was not established that ramchandra had committed the offence in furtherance of common object of any unlawful assembly. we were taken through the evidence of the prosecution. it was urged that the evidence was mostly circumstantial and the evidence did not complete the chain which connect the appellant with the crime and also showing that none except the appellant had committed the offence. the learned counsel for the appellant urged that the persons who are said to have been present at the shop of satyanarain could not have seen any occurrence. the evidence of bhagwat pathak etc. was also not at all reliable.6. we have heard the learned counsel for the state also.7. the first eye witness is devraj pw j. he had stated about the motive part of the occurrence. he stated that at about 6.30 p.m. he had heard the shrieks of ramraj, he had stated that bhagwat pathak, ram sakal, bachha ahir and parsuram pathak told him that appellant and his companion had taken ramraj towards the nala. this witness had not seen the appellant and his companion taking ramraj forcibly. this witness had stated in his cross-examination that about 1-1/2 years before the occurrence some quarrel had taken place between him and ramchandra about the boundary (mera) of a field. he admitted in a question put by the counsel for the accused that no quarrel had taken place about the up-rooting of the crops. he admitted that he had not made any report when ramchandra had threatened him that he will kill and dispose of the dead body. the statement of pw 1 deoraj should be read with the statement of bhagwat pathak. bhagwat pathak had stated that he had seen the appellant and his companion taking the deceased forcibly. he had admitted in his cross examination that the appellant and his companion who were six in number had been taking the deceased through the field where the crops were standing. if it was so then the crops through which the 7 persons i.e. six assailants and the deceased had passed would have been trampled to a great extent. this path could have been notice by the investigating officer at the time of his local inspection. the investigating officer had however on the other hand had shown in the site plan another path by figure 7 through which the assailant are said to have taken the deceased along with them. in this way the statement of bhagwat pathak is not corroborated by his statement under section 161, of the code of criminal procedure. if the deceased had been taken in the manner as stated by bhagwat pathak it ought to have been corroborated by a fact appearing at the spot which could have been noticed by the investigating officer. thus the statement of bhagwat pathak does not inspire confidence.8. in the lower court had state at one place that on account of darkness and distance bhagwat pathak, pw 2 and ram sakal pw 3 could not have recognised the assailants by face. soon after in the following paragraph the lower court has stated that ram chandra could have been identified by a witness by his voice. the conclusion of the lower court was not based on any proper appreciation of the evidence. if the assailant and victim were at a distance then there could have been no chance of any conversation between them and the witnesses. therefore, the whole story stated by bhagwat pathak and ram sakal is not at all believable. it appears to be purely concocted story.9. the next evidence which remains against the appellant is statement of tirathraj upadhya, p.w. 5 investigating officer regarding the recovery of the dead body on the pointing out by accused ram chandra. this much evidence is not sufficient to entail the conviction of the appellant. the investigating officer had not noticed any blood at the place where the dead body was recovered. the blood was recovered from the other place. the blood stained earth has not been sent to chemical examiner for examination. a simple knowing that a dead body lies at a particular place does not mean that the person pointing the dead body is the real assailant. besides this evidence some more evidence is required to prove the guilt. the chain of circumstance leading to point at the appellant as the real assailant is not at all complete.10. the lower court was led away by this fact that the dead body was recovered on the pointing of the appellant. he had coupled this fact with the fact that he and his companion had been seen taking the deceased forcibly who was crying for help. this part of the prosecution story is not at all believable. in view of this circumstance, i find that there was no evidence at all to show that the appellant had committed the murder. the lower court had erred in convicting the appellant.11. the prosecution case was that the appellant and five others had participated in the crime. the lower court held that five others were not involved in the crime. the learned judge had acquitted them. despite this, the lower court observed that the appellant and five others had committed the crime. it was not open to the lower court to carve out a third case which was not taken by the prosecution on the defence. there is no scope for speculation in a criminal trial. therefore the order of the lower court convicting the appellant under section 302, ipc with the aid of section 149, ipc was totally erroneous. the appellant could also not be convicted under section 147, ipc.12. the appellant could also not be convicted under section 201, ipc simply on the pointing out of the dead body. it should be established that the dead body was concealed at that place by the appellant with an object of shielding any person from punishment of any offence. the evidence produced by the prosecution witnesses was not sufficient to prove that the appellant had concealed the dead body or had any intention to shield himself or any other person from punishment in a crime under section 302, ipc. thus the conviction under section 201, ipc was also bad in the eyes of law.13. no other point has been pressed.14. the appeal is allowed. the judgment and order of the lower court are set aside. the appellant is acquitted of the charges levelled against him. he is on bail. his bail bond is cancelled and sureties discharged.