Ram Niwas Singh Vs. State of U.P. - Court Judgment

K.N. Sinha, J.

1. Both these appeals arise out of one common judgment in sessions trial No. 242/1979, hence taken up together for hearing and judgment, The above appeals have been filed against the judgment and order dated 5-2-1981 passed by third Additional Sessions Judge, Fatehpur convicting the appellants Ram Niwas Singh, Shiv Karan Singh, Jai Karan Singh, Desh Raj Singh and Adru Singh for the offences under Sections 302/149 Indian Penal Code and 364/149 Indian Penal Code and sentencing each one of them to undergo life imprisonment for each offence. The appellants have further been convicted for the offence under Section 307/149 I.P.C. and sentenced to Rigorous imprisonment for five years. Beside above, appellant Jai Karan Singh has been convicted for the offence under Section 147 Indian Penal Code and sentenced to undergo one year's rigorous imprisonment and appellants Shiv Karan Singh. Adru Singh, Ram Niwas Singh and Desh Raj Singh have been found guilty for the offence under Section 148 Indian Penal Code and sentenced to undergo two years' rigorous imprisonment.

2. The appellants and two others, namely, Ram Bahadur and Arjun Singh (died during trial) were challaned by Thariyawan police district Fatehpur for the offence which is said to have taken place at 7 P.M. on 4-8-1979 within village Hanswa, 7 miles away from police station Thariyawan. The story, which emerged from the written report and the evidence of prosecution, was that the accused hailing from one family were on inimical terms with complainant Brij Bhushan. The motive of the alleged crime, as set forth in the statement of Brij Bhushan Singh PW 3, was that 15-16 years prior to the occurrence, Moti Singh father of accused Arjun Singh was murdered. In the said murder case complainant Brij Bhushan Singh and his other family members were tried wherein complainant Brij Bhushan was sentenced to death and other accused were sentenced to life imprisonment. Later on, sentence of death was commuted to sentence of life imprisonment by Governor of Uttar Pradesh. Further, in the year 1977 Kapoor Singh cousin of complainant was murdered wherefor present accused appellants along with others were tried. The First Information Report in the case of murder of Kapoor Singh was lodged by the complainant of the present case. Brij Bhushan Singh and the deceased conducted Pairvi of the said case. In the background of this enmity, the accused appellants were allegedly in search of an opportunity to take revenge from the complainant and his family members,

3. It is alleged that on 4-8-1979 at 7 p.m. the complainant Brij Bhushan Singh and his wife Sarwan Devi, widow of Kapoor Singh -- Smt. Gaura PW 4, daughter of Kapoor Singh - Sukhada Devi PW 5 along with the complainant's real brother Shiv Bhushan Singh were sitting outside the house on the southern Chabutara. The deceased Brij Mohan Singh was going to ease himself and he had hardly covered 70-75 steps reaching near the manure pit when the appellants and two others emerged suddenly. Non-appellant Ram Bahadur Singh, appellants Shiv Karan Singh and Adru Singh were holding guns; Ram Niwas Singh had a country made pistol; non-appellant Arjun Singh and appellant Desh Raj Singh were having an axe each; the appellant Jai Karan Singh had a Lathi. When deceased Brij Mohan Singh was passing near the manure pit, non-appellant Ram Bahadur Singh exhorted other accused appellants who caught hold of him and took him to some unknown place. The deceased raised alarm for help. The complainant and his family members also shouted for help and rushed towards the appellants but non-appellant Ram Bahadur Singh fired at him, which though did not hit him but he and others were deterred from chasing the appellants. The complainant and his family members and other village people kept on searching the deceased for the whole night and next day on 5-8-1979 a report was lodged at Police Station Thariyawan at 2 p.m. The police made a search for the accused and also for the deceased and the headless dead body was ultimately found on 6-8-1979 lying in the Nala of village Michaki stuck in the bushes of some plants, hence it could not flow further. The investigating officer prepared the inquest report, site plan and sent the dead body for postmortem. After completing the investigation Charge-sheet was submitted against the accused and they were tried by the Court of Session resulting in the judgment and order mentioned above.

4. The prosecution, in all, examined eight witnesses besides Shiv Bhushan Singh, brother of complainant and Moinuddin Khan Assistant Sub-Inspector of Police office Fatehpur, as Court witnesses. The appellants were examined under Section 313 Cr. P.C. No oral defence evidence was adduced. Out of the witnesses examined by the prosecution, three witnesses, namely, Brij Bhushan Singh. Smt, Gaura Kumari and Kumari Sukhada were examined as PW 3, PW 4 and PW 5 respectively. Krishna Mohan PW 6 was the witness of the recovery of dead body. Sub-Inspector Devi Prasad Misra PW 7 investigated the case and submitted the chargesheet. Ashiq Ali, PW 8 was the typist in public prosecutor office, Fatehpur who filed the record of final report No. 43 in respect of First Information Report which was lodged at Crime No. 108/1978 against the deceased and others by accused Ram Niwas Singh. Head constable Dev Shankar Varma (PW 2) prepared chick report and General Diary snowing registration of the case and Dr. B.K. Tripathi was examined as PW 1 who conducted the Post mortem on the dead body of the deceased. He found following ante mortem injuries :

' 1. Incised wound 4' x 1' x brain cavity deep on the right side head in temporo parietal region 1-1/2' above the right ear.

2. Incised wound 4' x 1' x brain cavity deep on the right side face.

3. Incised wound 3' x 11/2' x socket deep in the area of left eye, underneath bones fractured.

4. Incised wound 3' x 11/2' x socket deep in the area of right eye underneath bone fracture. Thus all bones of skull (head) fractured in pieces.

5. Incised wound 5' x 4' x through and through the neck. Head and trunk separated.

6. Incised wound 4' x 2' x bone deep over the area of mouth.

7. Incised wound 11/2 x 1' x muscle deep over the right shoulder in its anterior aspect.

8. Incised wound 1' x 1/2' x muscle deepin the right supra clavicular region 1' medial to injury No. 7.

9. Incised wound 1/2' x 1/2' x muscle deep in right supra clavicular region 1/2' above the middle part of right clavicle.

10. Incised wound 3-1/2' x 3' x through and through the elbow joint.

11. Incised wound 31/2' x 3 x through and through the left elbow joint.

12. Incised wound 4' x 3' x bone deep on the dorso medial aspect of upper third part of left fore-arm.

13. Incised wound 5' x 5' x through and through the right knee joint.

14. Incised wound 5' x 5' x through and through at the level of left knee joint.

15. Incised wound 31/2' x 1' x abdominal cavity deep on the right side of abdomen 6' below the right nipple.

16. Incised wound 2' x 1-1/2' x abdominal cavity deep on the right lateral side of abdomen 1' lateral to injury No. 15.

17. Incised wound 8' x 6' x abdominal cavity deep on the abdomen in its central part, loops of intestine coming out.

18. Incised wound 7-1/2' x 6' x perineal cavity deep in the perineal area scrotum, penis absent.

19. Incised wound 3' x 1' x abdominal cavity deep on left lateral side.

5. In the opinion of the doctor, the injuries were caused two or three days prior to the date of post mortem and could be caused by an axe. The Court witness Moinuddin Khan produced the original application addressed to the District Magistrate, Fatehpur, in respect of commission of the crime moved by Shiv Bhushan Singh brother of the complainant in which a separate story was set up. Shiv Bhushan Singh was also examined as a Court witness who denied his signatures on the original application dated 6-8-1979. The Government Handwriting Expert had also examined and compared the disputed signatures of Shiv Bhushan on the application dated 6-8-1979, with his specimen signature and admitted signatures on a sale deed. According to his opinion, the disputed, admitted and specimen signatures were written by one and the same person.

6. The accused came up with the defence that deceased Brij Mohan had illicit relations with the daughter of one Sitaram Halwai. This story had spread in the whole of the village and it was at the instance of Sitaram that deceased Brij Mohan was murdered whereafter dead body was concealed.

7. We have heard learned counsel for the appellants and the learned Additional Government Advocate, and perused the evidence on record.

8. The first submission made on behalf of the appellants was that the appellants were implicated on account of enmity between the complainant and the appellants. In the First Information Report the factum of enmity has been introduced in one sentence but the same was elaborated in the statement of complainant Brij Bhushan PW 3. Complainant Brij Bhushan PW 3 has given a pedigree in the opening paragraph of the examination in chief showing that all the accused hail from the same family. The enmity was regarding the murder cases in which sometimes complainant and his family members were accused and sometimes the present appellants were accused. Brij Bhushan PW 3 stated that 15-16 years prior to the occurrence Moti Singh father of accused Arjun Singh (non-appellant) was murdered in which Brij Bhushan PW 3, his brother and others were accused. Brij Bhushan PW 3 was sentenced to death and others to life imprisonment. The death sentence was commuted into life sentence by Governor of Uttar Pradesh and he was also released in 1972 on the occasion of Silver Jubilee of the independence of the country. The next enmity was when in the year 1977 complainant's cousin Kapoor Singh was murdered and present appellants and others were accused in that case on the First Information Report of complainant Brij Bhushan Singh, This enmity shows that the parties were at daggers drawn and out to kill each other. The enmity is a double edged weapon which may prompt the appellants to commit the offence and may also make complainant to implicate appellants falsely. This could be judged only after examining the evidence adduced by prosecution.

9. In the present case, there is no independent witness as has been discussed earlier. There are only three witnesses of fact -- Brij Bhushan Singh, the father of the deceased, Smt. Gaura Kumari PW4 wife of late Kapoor Singh and Kumari Sukhda PW 5 daughter of Kapoor Singh. It may not be out of place to mention that Brij Bhushan Singh was an accused in a case of murder of Moti Singh father of accused Arjun Singh. Kapoor Singh is the same person who was murdered in which present appellants were accused and the report was lodged by present complainant. Thus Brij Bhushan Singh PW 3, Smt. Gaura Kumari PW 4, Kumari Sukhada PW 5 daughter of Kapoor Singh are highly inimical to the appellants and closely related to the deceased.

10. The law is very clear on this point. The statement of interested and inimical witnesses cannot be discarded altogether but a very cautious and close scrutiny of the evidence is required. The prosecution has not examined any independent witness to corroborate the testimony of interested and inimical witnesses. It was a big town where the occurrence took place. This town has a branch of Bank of Baroda, a Post Office, Post and Telegraph Office etc. According to Brij Bhushan Singh PW 3 this township consists of about five thousand to six thousand inhabitants. It has also come in the prosecution evidence that the deceased raised alarm when he was being carried away by the appellants. It is also in evidence that the complainant and his family members raised an alarm on witnessing the incident. It is highly improbable that if such an alarm was being raised or such an occurrence was taking place, none would come out. Devi Prasad Misra Investigating Officer PW 7 has stated that there was also a school and a small cottage of hermit but on being contacted the said 'sanyasi' refused to say anything. It has also come in evidence that one labourer of complainant's brother Shiv Bhushan was feeding the cattle but he was also not interrogated. Thus there being chances of the availability of independent witnesses, none was interrogated or examined. It is highly surprising and improbable that in such a big township having inhabitants of about five to six thousand none came forward except the family members of the deceased who were highly inimical.

11. According to the First Information Report the complainant's family members were siting at the Chabutara of Munna alias Krishna Mohan when this occurrence took place but when the complainant entered the witness box he stated that he was sitting at the Southern Chabutara of his house. He changed the version given before the Investigating Officer that lie was sitting at the Chabutara of Munna alias Krishna Mohan. So is the statement of Kumari Sukhada PW 5. Both these witnesses stated before the Investigating Officer that they were sitting at the door on a Chabutara of Munna alias Krishna Mohan but the said version was changed when they entered the witness box and stated that they could not say as to how the Investigating Officer had recorded their statements.

12. Thus the non examination of the independent witnesses and the place of sitting wherefrom the witnesses are said to have witnessed the occurrence shakes the root of the prosecution case.

13. The learned counsel for the appellants has very strongly urged that the First Information Report is delayed and it is also ante-timed. In the case of L/NK Meharaj Singh v. State of U.P., 1994 ACC 437 : (1994 All LJ 1032 : (1995 Cri LJ 457)) the Apex Court has observed that in the inquest report the absence of number of First Information Report, name of accused, nature of weapons etc. shows that the First Information Report was not recorded at the time as alleged by the prosecution.

14. There are a number of circumstances which show that the First Information Report was not lodged at the given date and time. The occurrence took place on 4-8-1979 at 7 p.m. The report is said to have been lodged on 5-8-1979 at 2 p.m. The explanation has been given by the informant PW 3 that after this occurrence took place, he along with other village people went in search of his son and returned next morning around 9 or 9.30 a.m. He prepared a written report at about 10 a.m. and went to the police station. The distance of police station is given to be 7 miles. The report was lodged at 2 p.m. No doubt when such occurrence would take place, the father or the family members would make a search first and then the report would be lodged. It has been stated by Brij Bhushan Singh PW 3 that there is a Post Office, Telegraph Office and Telephone in his town. Even if the complainant and few of the village people went in search of the deceased, still someone could have informed the police station or the higher authorities but nothing of this sort was done. This witness has further stated that after return in the next morning he tried to contact the Superintendent of Police on phone but could not succeed in doing so. Brij Bhushan Singh PW3 also stated that there were two chaukidars in his village. The posting of Chaukidar Babulal and Ram Asrey was also stated by the Investigating Officer. The complainant or the other family members also did not make any effort to contact the Chaukidar or to ask them to inform the police station which Was only 7 miles from the place of occurrence. It may also be cross checked as to when the First Information Report was sent to the Court or its special report was sent to higher authority. Head constable Devi Shankar Verma PW 2 stated in the cross examination that the Special report was sent on 7-8-1979 at 10 a.m. It also does not stand to reason that if the report was lodged on 5-8-1979 at 2 p.m. why the report was not sent on the same day or the next day. Had the report been lodged on 5-8-1979, the special report must have been sent positively on 6-8-1979. The papers were also not sent immediately to the Chief Medical Officer along with the dead body. Dr. B.K. Tripathi PW 1 who conducted the post mortem stated in cross examination that according to the record the dead body was received at 7.30 a.m. but the papers were received at 11.30 a.m. Now coming to the inquest report, it becomes crystal clear that the First Information Report was not in existence till then. The inquest report Ext. Ka 7 does not show the case crime number, the name of accused, the number of First Information Report, nature of weapon etc. The columns are also not properly filled in. The column meant for the time of conclusion of the investigation proceedings finds a very funny endorsement and it is mentioned in the said column that 'Jaanch Jari Hai'. This inquest report was prepared on 6-8-1979. What appears from this is that when the dead body was recovered, the Investigating Officer prepared the inquest report and thereafter the First Information Report was managed.

15. This was considered to be a very relevant factor in the case of L/NK Meharaj Singh v. State of U. P. (supra).

16. We have also examined the probability of the defence version. According to the defence case, deceased had illicit relations with the daughter of Sitaram and this affair between the deceased and the daughter of Sitaram had spread in whole of the village which brought bad name to the family of Sitaram and it was he who, with the help of hired assassins, got Brij Mohan murdered. This suggestion was put to prosecution witnesses who denied it but the Court witness Moinuddin Khan an Assistant Sub Inspector of the Police Office, Fatehpur produced an application dated 6-8-1979 addressed to the District Magistrate Fatehpur given by Shiv Bhushan Singh disclosing the defence theory. This application dated 6-8-1979 shows that Brij Bhushan had approached the police who refused to entertain the report. Then he addressed this complaint to District Magistrate, Fatehpur, for taking action. The Investigating Officer, Devi Prasad Misra PW 7 stated that an application dated 6-8-1979 was received by him from Superintendent of Police, Fatehpur for inquiry. He contacted Shiv Bhushan who denied to have given this application and also gave it in writing on 14-10-1979 (Ext. Kha-1) on record. The recital in the said application dated 6-8-1979 shows that the complainant's brother Shiv Bhushan attributed this murder to the said Sitaram and his son Shalikram Halwai. Shiv Bhusan, as per the prosecution case, was present on the spot. Shiv Bhushan has denied to have signed this application. When the Investigating Officer inquired from Shiv Bhushan about this application he denied to have given this application. Then the Investigating Officer took those facts in writing on 14-10-1979 (Ext Kha 1). This witness Shiv Bhushan Singh was out and out to tell a lie and also denied his signature on Ext Kha-1. However, when the Court questioned, he admitted his signature on Ext Kha 1. The disputed signature, admitted signature and the specimen were sent to the Government Handwriting Expert who found that all these signatures were of the same person. Thus the application dated 6-8-1979 was definitely moved by Shiv Bhushan in which a different version of murder was given. Shiv Bhushan, after the occurrence, remained absent from village for about 2-3 days. Witness Shiv Bhushan stated that he was searching his deceased nephew till the next day noon in some other direction. Thereafter, he fell ill on account of fever and remained inside the house and did not meet anyone. Brij Bhushan Singh PW3 stated that Shiv Bhushan did not go in search of the deceased. Smt. Gaura Kumari PW 4 stated that after the occurrence Shiv Bhushan did not go anywhere and was not seen in the village for another 2-3 days. Similarly, Kumari Sukhada PW 5 stated that Shiv Bhushan was not seen for 2-3 days after the occurrence. This evidence shows that Shiv Bhushan remained out of village for about three days and this application was given during this period. Thus, the probability of defence theory inspires more confidence.

17. The close scrutiny of the entire evidence shows that the deceased had disappeared from the village and when his dead body was recovered on 6th August 1979, the First Information Report was prepared and as it was a blind murder, the names of the present appellants (who were the staunch enemies of complainant) were given in the First Information Report.

18. Thus, we are of the opinion that the First Information Report is ante-dated, witnesses are related and are highly inimical with the appellants. There is no independent corroboration and the testimony of the witnesses is unreliable.

19. Besides this, the other circumstances appearing in the prosecution evidence suggest that the prosecution version is not correct and these circumstances make defence case more probable.

20. According to prosecution case all the witnesses were sitting out-side the house on the Chabutara and there were number of ladies amongst those witnesses. Normally, the ladies and the girls of the house would not sit outside the house on 'Chabutara' in the evening. It is said that when the complainant raised the alarm while the appellants were taking away the deceased, one Ram Bahadur (non-appellant) fired shot on the complainant which deterred him from chasing the appellants. The Investigating Officer Devi Prasad Misra PW 7 stated that he did not find the pellets or wad at the place of occurrence. This also makes the theory of the prosecution doubtful. According to First Information Report, there were seven persons out of whom Ram Bahadur Singh. Shiv Karan Singh and Adru Singh were armed with guns and Ram Niwas Singh with country-made pistol. They could have fired shots on the deceased instead of taking him 60-70 steps ahead from the house of the complainant and then to some unknown place to ultimately murder him by inflicting incised wounds only. Not only this, the enmity was with the complainant not with the deceased who was aged only 20 years. If they had to take revenge, the natural conduct would have been to take revenge against the complainant Brij Bhushan PW3 but the strange feature is that they spared him.

21. According to statement of Doctor, injury No. 18 shows that there was an incised wound cutting scrotum and penis of the deceased. Normally, such type of injuries are inflicted only when the assailants have in their mind some revenge about sexual misdeeds of the victim.

22. To revert to the point, the above factors appearing in the evidence are suggestive of this fact that the story set up by prosecution is not trustworthy whereas it makes defence version more probable.

23. Thus, in view of the above discussion and considerations of evidence on record together with other relevant factors of the case, we are of the opinion that the prosecution failed to prove the charges against the appellants, Resultantly, we allow these two appeals and set aside the impugned judgment and order. The appellants are acquitted of the charges against them. They are on bails. Their bail bonds are cancelled and sureties are discharged.