Nand Ram alias Nandu and Another vs State of U.P.

Shiv Shanker, J.—This criminal appeal has been filed against the judgment and order dated 15/25.10.1982, passed by I Ind Additional ''Sessions Judge, Moradabad, in S.T. No. 164 of 1981 convicting and sentencing the Appellants to undergo life imprisonment u/s 302/34, Indian Penal Code.

Briefly, prosecution case is that Pirthi Singh lodged the F.I.R. on 20.6.1980 at 13.30 p.m. regarding occurrence dated 19/20.6.80 in the intervening night, wherein it has been stated that Roop Ram, brother of informant used to go to sleep at the chak of Baniya Wali. Therefore, he had also proceeded on 19.6.1980 in the mid-night by saying that he was going to the said chak for wandering, to ease and pass urine, but he did not return till the morning on 22.6.1980. Therefore, the informant had gone to search him at the said chak where dead body of Roop Ram was lying in the sugarcane field of him who sustained fire arm injuries. Thereafter, F.I.R. was lodged and the case was registered against unknown miscreants.

Thereafter, P.W. 7 Shiv Datt, S.I. reached at the place of incident on the next day who prepared the inquest report etc., regarding dead body of deceased and after sealing the same it was entrusted to constable who produced dead body of deceased before P.W. 8 Dr. S. C. Gupta who conducted the post mortem report and prepared the post mortem examination report.

After 7 days of the alleged occurrence, the second Investigating Officer Jhamman Singh recorded the statement of P.W. 2 Smt. M. Sares, P.W. 3 Bihari, P.W. 4 Brajpal, P.W. 5 Smt. Shivdei who claimed to be eye- witnesses of the incident that Roop Ram (deceased) was tightened with rope in the tree and Nand Ram and his son Bramha Jeet were present there. Accused Nand Ram committed murder of deceased by causing fire arm injuries. Thereafter, he was dragged from there and laid in the sugarcane field of P.W. 1.

After completion of investigation, both the accused Nand Ram alias Nandu and Bramha Jeet were charge-sheeted by the Investigating Officer.

After commitment of these case to the Court of Sessions, Sessions Judge has framed charge for the offence u/s 302/34, I.P.C. against both the accused persons. Further charge was framed u/s 302, I.P.C. against the accused who pleaded not guilty and claimed to be tried. They have stated in their statements recorded u/s 313, Cr. P.C. that they have been falsely implicated in this case due to enmity.

No any oral or documentary evidence has been adduced on behalf of accused in defence.

Thereafter, the court below has convicted both the accused- Appellants for the charge u/s 302, I.P.C. read with Section 34, I.P.C. by awarding the above sentence. Feeling aggrieved by it, they have preferred the present appeal in this Court.

Heard Sri Brajesh Sahai learned Counsel appearing on behalf of Appellants and learned A.G.A. Usha Kiran and perused the whole evidence on record.

Learned Counsel for the Appellants contended that the F.I.R. was lodged with the delay of more than 13 hours. However, name of assailants and witnesses have not been mentioned. It is further contended that inquest report regarding dead body of deceased was prepared on the next day after lodging the F.I.R. However, the names of Appellants have not been disclosed by the informant, his mother P.W. 5 and his sister P.W. 2 and other witnesses P.W. 3 and P.W. 4. After 7 days of the alleged incident, two other brothers of the deceased had arrived in the village who were posted in the police department in M.P. cooked up false story by implicating both the present Appellants by making eye- witnesses P.W. 2, P.W. 3, P.W. 4, P.W. 5. No sufficient explanation has been given regarding such delay as to why they were quite mum upto seven days and their names were not disclosed either at the time of lodging the F.I.R. or preparing inquest report of the dead body of deceased. Therefore, it is blind murder and the Appellants have been implicated falsely in this case which is afterthought by making cooked up story. It is further contended that conduct of alleged eye-witnesses P.W. 2, P.W. 3, P.W. 4 and P.W. 5 is not natural due to not disclosing this fact to any other persons after incident and the same has been disclosed after seven days of the alleged incident. According to the testimony of P.W. 2 and P.W. 3, they have not seen the incident. The fact was told by P.W. 2 and P.W. 5 on the way to P.W. 3 and P.W. 4.

It is further contended that there was no source of light in the F.I.R. as well as previous statements of four eye-witnesses who claimed to be eye-witnesses of this occurrence. Firstly, they have stated in the Court that there was moon light at the time of incident.

It is further contended that the deceased Roop Ram was tightened with the rope in the tree. Thereafter, he was murdered by causing fire arm injury. However, no ligature mark was found on dead body of deceased.

It is further contended that there is no evidence against the Appellant Bramha Jeet regarding participation in the crime. On the basis of mere presence of Appellant Bramha Jeet, he cannot be convicted for the offence u/s 302/34, I.P.C. It is further contended that motive is also superficial. The Appellant Nand Ram alias Nandu is living separately for about 10 years ago after the partition and dispute has been shown in between the deceased and Appellant not to sale one tree about 15 days ago of the alleged incident. Merely on this basis, the Appellant could not commit murder of deceased who is also his real brother. One tree was allegedly to be sold by the Appellant to one Yasin but he has not been examined on behalf of prosecution for proving motive. However, the trial court has convicted the Appellants upon unreliable, incredible and untrustworthy evidence of the witnesses.

On the other hand, it is submitted that P.W. 2 and P.W. 5 who are married sister and mother of deceased who were illiterate ladies. Therefore, they could not go to the concerned police station to lodge the F.I.R. in the same night. The F.I.R. was got prepared by P.W. 10 Ram Swaroop (Pradhan) and sent the same through chaukidar to the concerned police station after obtaining thumb impression of P.W. 1. Threatening was given by the Appellants at the time of occurrence. Therefore, witnesses could not disclose the name of assailants to Sub-Inspector who reached and prepared inquest report of the deceased. Consistently, statements have been given by all the witnesses and their evidence is also corroborated with the medical evidence. Sufficient reasons have been given in disclosing the name of assailants after seven days of the occurrence as two brothers of deceased who were serving in police department in M.P. had come to their house. Thereafter, statements were recorded by the Investigating Officer after seven days of the occurrence by disclosing the name of both the Appellants. This incident had occurred in the moon light. The Appellants are the sons of P.W. 5 and brothers of P.W. 2 and witnesses P.W. 3 and P.W. 4 are also residents of same village. Therefore, they could easily identify the Appellants in the night in the month of June in the moon light also by voice. Therefore, identification of the Appellants is not liable to be suspicious. It is further submitted that ligature mark could not be received by the deceased while he was tightened with the cloth in the tree. Therefore, the court below has not committed any error or illegality and they have been rightly convicted for murder of deceased upon reliable and trustworthy evidence.

There is no dispute on behalf of both the parties that P.W. 1 Prithi Singh is real brother of deceased Roop Ram and Appellant Nand Ram. There is also no dispute that P.W. 1 has five real brothers who are Nand Ram (present Appellant), Dayanand, Chokha (who are serving in police department in M.P.), Roop Ram (deceased) and Antram. It has also come in the evidence that partition had already taken place in respect of agricultural land among them. Therefore, the Appellant Nand Ram is in occupation of 10 bighas agricultural land for about 10 years ago while other five accused persons are in occupation in the rest of the agricultural land. Therefore, relation in between the Appellant Nand Ram and other five brothers are not cordial and their relations were bitter.

According to the testimony of P.W. 1, P.W. 2 and P.W. 5, Roop Ram deceased had gone in the intervening night at the chak of Baniya wali for wandering, to ease and pass urine etc., and he had not returned to his house whole night. Therefore, he was searched next day in the morning by P.W. 1 in the said chak where dead body of deceased Roop Ram was found. Therefore, P.W. 1 is not an eye-witness of this occurrence. He lodged the F.I.R. against unknown miscreants on 20.6.80 at 1.30 p.m. regarding occurrence on 19/20.6.80 in the intervening night. This also shows that P.W. 1 had no knowledge as to who committed murder of deceased. After lodging the F.I.R., inquest report of dead body of deceased was prepared by P.W. 7 on 20.6.1980. The Appellant Nand Ram was also made one of the witness of inquest report. However, P.W. 1, P.W. 2 and P.W. 5 have not disclosed the name of any Appellant, to commit murder of deceased, to the Sub-Inspector who prepared inquest report.

Therefore, it appears that it was not in the knowledge of these witnesses who committed murder of deceased. After seven days of the alleged incident, two real brothers who were serving in police department in M.P. had arrived to their village after getting information of murder of deceased. Thereafter, statements of all the alleged eye-witnesses were recorded by the Investigating Officer by cooking up prosecution story which is an afterthought that he was murdered by the Appellants in their presence.

It is worthwhile to mention here that P.W. 2 and P.W. 5 who are married sister and mother of deceased respectively who stated that the deceased had gone to the said chak in their presence from his house. When he did not return to his house. They proceeded towards the said chak and found that he was tightened with rope with the tree in the same night and Nand Ram shot fires upon him. Consequently he sustained fire arm injury. Later on he was dragged from there and laid in their sugarcane field. The same statements have been given by P.W. 3 and P.W. 4.

P.W. 1 has stated in his deposition that P.W. 2 and P.W. 5 had returned to their house at about 12 in the night and stated that Nand Ram Appellant shot fire upon Roop Ram after tighting him with the tree. Same statements have been given by P.W. 2 and P.W. 5. Similarly it has been stated by Bihari and Brijpal P.W. 3 and P.W. 4. When this fact has come into the knowledge of P.W. 1 in the same night it is strange as to why he did not mention the name of Appellants in F.I.R. in committing murder of deceased which was lodged next day after gaping of thirteen and half hours. Names of Appellants were also not disclosed to Sub-Inspector P.W. 7 at the time of preparing the inquest report. Not only that, the Appellant Nand Ram was also made witness of the inquest of dead body of deceased. Therefore, conduct of Appellant was also natural and he had not tried to run away after incident. It is also worthwhile to mention here that P. Ws. 1 to 5 had not disclosed the name of Appellant to any other person. They were quite mum upto seven days after incident. Although explanation has been given by witnesses that they were threatened by the Appellants. Therefore, they did not disclose this fact. This is not sufficient explanation regarding such delay in not disclosing the names of assailants at the earliest while police were in their touch after registering the case. On the other hand, it appears that P.W. 3 and P.W. 4 had not seen the incident in their presence as the same was told by P.W. 2 and P.W. 5 in the same night on the way after occurrence.

It is also unnatural when P.W. 1 and his another brother Antram were present in their house. None has gone to search the deceased in the said chak in the night. Being ladies, both of them had gone in the night at the said chak situated in the jungle to search the deceased. It is also not probable that P.W. 1 and Antram would not have gone in the same night near the dead body of deceased after getting information of his murder from P.W. 2 and P.W. 5. Version of F.I.R. given by P.W. 1 shows that nothing was in the notice of P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 as to who committed murder of deceased. After seven days of alleged incident, two real brothers of deceased who were police personnel in M. P. had come and they had made consultation to involve the Appellants by getting the statements of P.W. 2 and P.W. 5 recorded as eye-witnesses u/s 161, Cr. P.C. Therefore, presence of all the four witnesses are liable to be suspicious at the time of occurrence.

It is also worthwhile to mention here that ocular evidence is also not supported with the post mortem report of the deceased. P.W. 2 and P.W. 5 have specifically stated that Roop Ram was tightened with rope in the tree but no ligature mark was found on the dead body of deceased according to the post mortem report, while Dr. S. C. Gupta P.W. 8 has admitted in his cross-examination that ligature mark could come on the body of deceased due to tying with rope in the tree. This medical conflict also goes to show the presence of eye-witnesses suspicious.

It is important to note here that both the Appellants are father and son. They have been named by the above witnesses in their statements recorded u/s 161, Cr. P.C. after 7 days of the incident while none was named in the F.I.R. Nothing was recovered or discovered from their possession or from their pointing out. No extra-judicial confession has been given by any Appellant to any person. Therefore, prosecution story was developed after coming of two brothers of deceased who were police personnel in M. P.

Relation in between Appellant Nand Ram and his other five brothers including deceased was bitter after partition of agricultural land. Therefore, it appears that the Appellants have been implicated in this case due to such bitter relationship, so that property of Appellants should be usurped by sending him and his only son to the jail. However, the trial court has wrongly relied upon evidence of these witnesses. This possibility cannot be ruled out that unknown person committed murder of deceased as mentioned in the F.I.R. Later on, the Appellants have been roped in as afterthought in the murder of deceased. Therefore, judgment and order convicting the Appellants passed by the court below is not sustainable. It has come to our notice from the office report that the Appellant Nand Ram alias Nandu had died. Therefore, his appeal is hereby abated.

In view of discussions made above. We are of the considered opinion that the appeal is liable to be allowed impugned judgment and order passed by the court below deserves to be set aside and Appellant is entitled to be acquitted by giving benefit of doubt.

Consequently, the appeal is allowed. Impugned judgment and order passed by the Court below is set aside and Appellant Bramha Jeet alias Munna is hereby acquitted.

Record of court below be sent there alongwith copy of this judgment and order.