Dharam Das and Another vs State

V.P. Mathur, J.—Mr. M.N. Kulshrestha, the then IVth Additional Sessions Judge, Budaun while disposing of Sessions Trial No. 110 of 1978 of his Court, convicted Dharam Dais u/s 302 IPC and Bachey Lal u/s 302 read with Section 34 IPC and sentenced them both to imprisonment for life. This judgment and order is dated 6-9-78 and both Dharam Das and Bachey Lal have come to the Court through this appeal.

The first informant is one Tota Ram resident of village Behta Kaura, Police Station Bisauli, district Budaun. Dharam Dass is his brother-in-law and to him his real sister Smt. Ramwati was married. This lady has since died and about one year prior to this occurrence Dharam Dass had married a second woman. Bachey Lal is a distant brother-in-law of Dharam Dass's brother. There is some evidence on record to show that Smt. Ramwati was ill for about one year prior to her death and was living with Tota Ram where her treatment was going on. She died after living with Tota Ram for about one year. There is also evidence to show that about 11 or 12 biswas of land had been purchased in the name of Smt. Ramwati which is in the actual physical possession of Totaram. The contention of Totaram is that he had paid for the purchase of this land while Dharam Dass contention was that it was his money which was used for the purchase of this land. Dharam Dass is resident of village Tandey Ki Gauntia, which lies within the police station Aonja,District Bareilly and this place is 8 to 10 Kose away from village Behta Kayra. Bachey Lal is resident of Ghaziabad. This occurrence took place at about 3 or 4 pm. on 8-1-78 in the open Gher of Tota Ram in village Behta Kaurha and the first information report was lodged by Tota Ram at 5.30 p.m. in police station Bisauli, which is at a distance of 8 kilo metres from the scene of occurrence.

The prosecution story is that the deceased Shyam Lal who was second cousin of Tota Ram had arrived at Tota Ram's house 2 or 3 days earlier. Searching for him Dharam Dass and Bachey Lal also came to the village on 8-1-78. They met Tota Ram in his Gher and learnt from him that Dharam Dass had arrived. Then they followed Tota Ram upto the residential house. There they met Shyam Lal. It is said that Shyam Lal had advanced some money to Dharam Das and since it was not paid he had brought Dharm Dass's buffalo and sold it. In that connection Dharam Dass accompanied by Bachey Lal had come to meet Shyam Lal. It is contended that they had talks at the residential house of Tota Ram for some time where they also smoked Biris but thereafter all the three left the residential house and went to the open Gher. The story is that Tota Ram's real nephew Sohan Pal, who was a child of 9 or 10 years accompanied Shyam Lal, Dharam Dass and Bachey Lal upto the Gher. There, there was some exchange of words between the deceased and the Appellants and Dharam Dass shot Shyam Lal dead and then the two Appellants ran away from the spot. This information was communicated to Tota Ram by Sohan Pal, PW 2 and on its basis Tota Ram got the first information report scribed by Sultan Ahmad PW 6 and lodged it in the Thana on 8-1-78 at 5.30 p.m.

The investigation was made by Sri. Chandra Mohan Dixit PW 7 who took the dead body into custody, interrogated the witnesses and arranged for the postmortem examination. Dr. R.P. Jauhari PW 1 conducted the postmortem examination on the dead body of Shyam Lal at 4.00 p.m. on 9-1-78. His report has been exhibited and marked as Ext. Ka 2 and according to it, the following ante-mortem injuries were noted on the dead body:

Multiple gun shot wound of entry each measuring 0.7 cm x 0.5 cm surrounded by blackening in an area 8 cm x 5 cm on front of lower half of neck and adjoining sternum and inner ends of clavicle.

Abrasion 0.5 cm x 0.5 cm on the outer aspect of left elbow.

The internal examination revealed fracture of the upper part of the sternum at the joint of first ribs, puncture of the apex of the right pleura and trachea below larynx. The upper lobe of the right lung was also punctured. Arorta of the heart had also been punctured at the thoresic part. There was digested fluid 2 ozs in the stomach, gases in the small intestine and faeces in the large intestines. In the opinion of the Doctor, the death was due to shock and haemorrhage caused by the ante mortem injuries and the time since death was one day.

Seven witnesses were examined for the prosecution. PW 1 is Dr. R.P. Jauhari. PW 2 is the child witness, namely, Sohanpal. PW 3 is the first informent Tota Ram PW 4 and PW 5 are Jograj and Anokhey Singh, who have been examined to say that immediately after the occurrence when they rushed towards the Gher of the first informant on hearing the sound of the firing, they saw the two accused persons running away from the Gher side, Dharam Dass with a pistol and Bachey Lal with a lathi. Out of these witnesses, Jograj has not supported the prosecution case and says that he did not see any body running. PW 6 is Sultan Ahmad who scribed the first information report at the dictation of the first informant and PW 7 is the investigating Officer, Mr. Chandra Mohan Dixit.

The accused persons denied their guilt. Their contention is that the wife of Dharam Dass, who was the sister of Tota Ram had purchased land in village Behta Kaurha and Dharam Dass had paid for the price. Since the lady died after remaining ill for one year at the house of Tota Ram, and since there is no issue alive from this marriage, Tota Ram has now refused to part with the land of the lady and is also not prepared to return her ornaments to Dharam Dass and with a view to eliminate Dharam Dass completely he has falsely implicated him in this case alongwith Bachey Lal. It is further contended that the two Appellants had visited Tota Ram a number of times prior to this occurrence to demand the land of Smt. Ram Wati and her ornaments and Tota Ram, had refused to oblige them.

No defence evidence has been adduced.

This case clearly rests upon the sole testimony of the child witness Sohanpal PW 2 and in order to provide him with corroboration the prosecution has tried to examine two other witnesses Jograj PW 4 and Anokhey Singh PW 5. The position of child witness should be very clearly understood. In the case of Mohammad Sugal Esa Mamasan Rer. Alalah v. King AIR 1946 PC 3, which was followed by the Supreme Court in the matter of Rameshwar Kalyan Singh v. State of Rajasthan AIR 1951 SC 54, it was held that even though legally there is no bar in accepting the uncorroborated testimony of a child witness yet prudence requires that Courts should not act on the uncorroborated evidence of a child whether sworn or unsworn. In the case of Raja Ram v. State 1959 AWR 602 also it was held that the evidence of a child witness should be accepted with great caution. It is absolutely clear that a child witness is always a notoriously dangerous witness capable of being tutored and, therefore, unless the possibility of coaching is eliminated and independent corroboration is available, the Courts shall be very slow in accepting the solitary testimony of a child witness. In the case of Ram Hazoor Pandey v. State 1959 AWR 248 also it has been impressed that independent evidence should be available to corroborate a child witness and this corroboration should not be only about the factum of crime but should also reasonably connect the accused with the offence.

In the present case the first information report has been lodged by Tota Ram and it is based on what he learnt allegedly from Sohan Pal. In this manner Tota Ram is not an eye witness. He claims to have lodged the first information report after recording the facts on the basis of the information communicated to him by Sohan Pal and in support of Sohanpal Anokhey Singh PW 5 has come to say that immediately after the occurrence when he rushed towards the scene of occurrence on hearing the sound of the firing he saw the two accused persons running away from the side of the Gher.

Let us now analyse the evidence which has been adduced in this case to connect the two Appellants with this occurrence. PW 3 Tota Ram is the first informant. In the first information report he has clearly mentioned two facts, namely Jograj and Anokhey of the village had seen the two Appellants running away after the commission of the crime. Secondly, he mentions that Dharam Dass had obtained in the last month of Jeth some loan from Shyam Lal and when Shyam Lal did not receive the money back he went and brought the buffalo of Dharam Dass and sold it off. Shyam Lal once used to live at Dharam Dass's place for about one year or 1-1/2 years. In his oral statement recorded as P.E. 3 he says that the story regarding the advance of loan, bringing of the buffalo and its sale is not based upon any writing. It is only based upon what he has heard. He also admits that his only sister Smt. Ramwati was married to Dharam Dass and one year prior to this occurrence she died at Tota Ram's house while she was ill. She came ill from the house of Dharam Dass. Two or three years prior to her death 10/12 biswas of land was purchased in her name in the village and this land was in the possession of Tota Ram. It was, however, denied that payment was made by Dharam Dass. It is admitted that this lady remained at the house of Tota Ram till she died and one year prior to this occurrence Dharam Dass married again.

The most important witness is Sohan Pal. He says that Dharam Dass is his Phoopha and that his Buwa is dead. According to him, Bachey Lal used to visit his house along with Dharam Dass as he was related to Dharam Dass. Two or three times prior to this occurrence these two persons had visted the house of Tota Ram. He also says that Shyam Lal deceased was his uncle. According to him, Shyam Lal had arrived at his house at about noon and he was fast followed by Dharam Dass and Bachey Lal. Talks continued for some time. They smoked also and thereafter all the three went to the Gher and he accompanied them. There they sat down on a Charpoy (cot). Dharam Dass asked Shyam Lal "you have brought my buffalo". Shyam Lal said "I have not untethered it. You better pay my money". Then Dharam Dass said "I will shoot you down" and Shyam Lal retorted "Shoot if you may". Then according to this witness while he was lighting some Bins at the bidding of Dharam Dass, Bachey Lal took out a pistol from the pocket of his coat and handed it over to Dharam Dass and Dharam Dass promptly shot Shyam Lal with it. Then Sohan Pal ran away and reported it to Tota Ram. It is now clear that in his statement u/s 161 Code of Criminal Procedure this witness had not any where said that Dharam Dass and Bachey Lal had visited his house 2 or 3 times prior to this occurrence. This statement was made by him for the first time as PW 2. His contention that Shyam Lal had arrived at his house in the noon and was fast followed by Dharam Dass and Bachey Lal is proved to be wrong by the testimony of the first informant, who says that Shyam Lal had already come to his house 2 or 3 days earlier. The entire talk which allegedly ensued between Dharam Dass and Shyam Lal as has been given out by Sohanpal has not been narrated by him in the statement u/s 161 Code of Criminal Procedure. It is for the first time coming in evidence that Bachey Lal took out the Tamancha from his pocket and handed it over to Dharam Dass. In his statement u/s 161 Code of Criminal Procedure this witness has not named Bachey Lal at all. On the contrary he has said that Dharam Dass was accompained by one other person. If this witness knew Bachey Lal from before and also knew that Bachey Lal was related to Dharam Dass, as he claims, he, should have named Bachey Lal or at least told the Investigating officer that Dharam Dass was accompanied by a person who was his relative and who had visited Tota Ram's house a number of times prior to that occurrence. The statement u/s 161 Code of Criminal Procedure simply shows that the second person who was accompanying Dharam Dass was a stranger to this witness. He further says that when after receiving the shot Shyam Lal fell down on the ground, his back was towards the sky and his face was towards the earth and in the same condition he was found by the Investigating officer. He also says that the Investigating officer did not find any part of the body covered. Both these facts are proved to be wrong when we find from the testimony of the Investigating officer as well as from the inquest memo that the dead body was lying on its back with face up-ward and the face was covered. The witness further says that Shyam Lal had taken food all alone on that day prior to noon. The postmortem examination report reveals that Shyam Lai had not taken any solid food and it was only 2 ozs. of fluid which was found in his stomach. Whatever he had eaten had digested itself and had come down to the large intestines in the form of faecal matter. The reason for the child to have accompanied Dharam Dass, Bachey Lal and Shyam Lal from the residential house to the Gher is not forthcoming. Then again there does not appear to be any reason why Shyam Lal should have agreed to go from the house to the open Gher. It is clear from the testimony of Sohan Pal that he has spoken about some facts which he narrated to the Investigating officer when he was interrogated and which he perhaps did not tell Tota Ram because Tota Ram does not speak about the same. There has been, thus embellishment in his testimony and it is clearly indicative of tutoring at some stage. Sohanpal is, therefore, not a wholly reliable witness, besides being a child witness.

The testimony of PW 4 Jograj is that he was at his tube-well towards the north of the Gher of Tota Ram when he heard the sound of shot. He rushed towards the village side and reached running upto the place of occurrence. In the way he did not see anybody running from the side of the place of occurrence. He, however, says that when he reached the spot Anokhey Singh was also with him. He has thus not proved the prosecution version of having seen the two Appellants running away but he has very clearly said that he and Anokhey Singh reached the place of occurrence together on hearing the sound of the shot.

PW 5 Anokhey Singh, however, says that he and Jograj were at his field and they both rushed together towards the Gher. According to him, he was still inside his field 8 to 10 paces away from his western boundary, when he saw the two Appellants running away from the side of the Gher of Tota Ram, Dharam Dass with a Tamancha and Bachey Lal with a lathi. PW 2 Sohanpal does not credit Bachey Lal with any lathi. Had he been armed with the lathi, he would have definitely made a mention of the same. Anokhey Singh's testimony is reduced to naught when he says that when he reached the Gher 40 to 50 persons had already assembled there and this crowed consisted of children and aged persons also. He also says that Jograj had all along accompanied him. The testimony of Jograj contradicts this witness completely. It also appears that although Anokhey Singh and Jograj rushed from their fields which were not far away from the scene of occurrence, by the time that they reached the Gher a large number of persons had already collected there. Naturally it means that Anokhey Singh's testimony that he could see the culprits running away becomes extremely doubtful. He could see the culprits only if he had managed to reach the place of occurrence without loss of time, but since he reached after a large number of persons had already collected there, it means that he did not reach at once and hence the testimony of his seeing the culprits running away is completely negatived. In our opinion, after going through the statement of Jograj and after perusing the testimony of Anokhey Singh it appears that they did not see anything except the dead body and thus the prosecution has completely failed to provide any corroboration to the testimony of Sohanpal.

It is undoubted that Smt. Ramwati had a good piece of land in her name and this land was in the actual physical possession of Tota Ram. It is also established that one year prior to her death she was living with Tota Ram. The contention of Dharam Dass is that her ornaments are also with Tota Ram. Tota Ram admits that there is no living issue of Dharam Dass and Ramwati. It is also established that Dharam Dass had already married a second woman. It appears, therefore, that Tota Ram could have a reason to falsely implicate Dharam Das in this case in order to grab the land of Smt. Ramwati and possibly her ornaments. The defence suggestion in this respect has some force. Bachey Lal has been dearly falsely implicated in this case because even according to Sohanpal, the person who had accompanied Dharam Dass was a stranger and could not be Bachey Lal. With these infirmities in the evidence and in view of the uncorroborated defective testimony of the child witness, we are of the opinion that the case is not free from doubt and should not be held to have been satisfactorily made out against the Appellants. This being so, the Appellants would not be liable to be convicted and sentenced.

In the result, the appeal is allowed. The conviction of Dharam Dass u/s 302 IPC and that of Bachey Lal u/s 302/34, IPC as recorded by Sri. M.N. Kulshresthra, IVth Additional Sessions Judge, Budaun, vide his order dated 6-1-78 as well as the sentences of imprisonment of life awarded to them are set aside. The Appellants are not found guilty and are acquitted. They are on bail and they need not surrender. Their bail bonds and sureties shall stand discharged.