Radhe Sham and ors.. vs State of Haryana .

Harbans Singh Rai, J.

Radhe Sham, Duli Chand, Dayal Chand, Amar Nath Bhaga, Bhartu, Basau, Kura, Hukmi, Mango, Ikshu, Smt. Chandro and Partap Singh were tried in the Court of learned Additional Sessions Judge, Kurukshetra, for the offences under Sections 302/147/1491201/120B of the Indian Penal Code. All the accused were acquitted under Section 302, Indian Penal Code, but Radhe Sham, Duli Chand, Dayal Chand, Amar Nath Bhaga and Bhartu accused were convicted under Sections 323/149 and 147 of the Indian Penal Code. Feeling aggrieved, they have come in appeal to this Court.

The prosecution case is that Ram Dia deceased had gone to the house of. Radhe Sham on 2231984 at 6.00 P.M. to demand back payment of the loan of R.S. 2200/which he had advanced to him. Radhe Sham asked him to come at 8.00 P.M. when he will make the payment. As promised, Ram Dia had gone to the house of Radhe Sham at 8.00 P.M. What happened subsequently, the prosecution story is not clear. According to the report of Radhe Sham accused, which he made in police station Pundri, early next morning, the version is as under :

"I belong to village Bhana and in village Garhi P.S. Assandh, I worked as tailor. My family resided in village Bhana. While on my way from village Mondh to my village Bhana, I missed the bus at Rajound, went on foot and reached village Bhana, at my house at 10.30 P.M. I saw in moon light that Ram Dia son of Banwari caste Brahman, was attempting to commit sexual inter course with my wife Chandro and Chandro was crying to save herself. I knocked the door and found the room bolted from inside and my wife raising noise "bachao, bachao" continuously. On this I bolted the door from outside and I called Manga, Dulia, Kura Basau, Dial Darzian, who came there and then the door was unbolted from out side and my wife unbolted the door from inside. Inside, after slapping and causing minor injuries to Ram Dia, he was overpowered and tied with a cot. After leaving the persons of the mohalla at my house I called Bhartu chowkidar, Duli Chand and Partap Sarpanch. They made the chowkidar sit at the spot and advised me to inform the police I made Bhartu chowkidar sit outside the door which was bolted from outside and I and Dulia were waiting on the road for any conveyance, but could not find any. At about 3 A.M. (night) Bhartu chowkidar raised noise. 1, Dulia, Munshi Jat, contractor Moli, Manga, Ikshu caste Darzian, Zilla Khati reached my house and found the cot, and clothes on fire as also Ram Dia burning. Water was sprinkled on the clothes, quilt (Razai) and on Ram Dia and tried to extinguish the fire. Due to fire, Ram Dia was badly burnt. Leaving some persons at the spot, I have come on cycle to lodge the report. Assu chowkidar", Partap Sarpanch and other respectable have been left at the spot. Ram Dia, in my absence had entered my house with intent to commit rape on my wife and on his having been caught under such circumstances he had committed suicide by setting on fire his clothes. Action be taken."

On the above statement Pundri police recorded first information report No. 102 dated 2331984 under Sections 452/354/309 of the Indian Penal Code. After recording the first information report, the investigation was taken by Assistant Sub Inspector Karam Singh, who came to the house of Radhe Sham and prepared the site plan. He also took into possession various articles such as burnt cot, burnt quilt, ashes, one lamp, one Gadvi etc. He also prepared the inquest report Exhibit PC and sent the dead body of Ram Dia to the Civil Hospital, Kaithal for its postmorterm examination.

P.Ws. Banwari and Tara Chand approached the police at Radhe Sham''s house with their version and not getting any response, they alongwith Rani Parshad and Banwari Lal went to Kurukshetra and moved application exhibit PO to the Superintendent of Police, which reads as under

"Sub Enquiry in murder case.

Sir,

The applicants submit as under

That the appellants are the residents of village Bhana Tehsil Kaithal District Kurukshetra P.S. Pundri,

That one Radhe Sham son of Chhatter, Dulia son of Arjan, Dayal, Amar Nath Bhaga son of Abhe Ram, Bhartu chowkidar, murdered one Shri Ram Dia son of Banwari ard after murdering him put the kerosene oil on him and burnt him.

That the matter was reported to the police, but the police did not take any action into the matter rather suggested the accused to burn the deceased and on the (investigation ? of SHO, the abovesaid persons burnt him and destroyed evidence.

That the police wants to hush up the matter and is not registering the case.

That the SHO P.S. Pundri is in collusion with the accused party. It is, therefore, prayed that enquiry into the matter may kindly be got conducted atleast from D.S.P. Headquarters and the culprits may kindly be taken to task accordingly.

Applicant.

Banwari son of Kanhiya

Ram Parshad son of Kanhiya both residents of Bhana."

The Superintendent of Police sent that application to the Station House Office, P.S. Pundri who registered another case under Sections 302/148/149/201 Indian Penal Code. The Superintendent of Police directed the C.I.A. Staff Inspector, Kurukshetra, to take up investigation of the case. He visited the place of occurrence on 841984 and prepared the rough site plan Exhibit PJJ. He also took into possession a piece of blood stained wood. The accused were arrested. challaned and convicted as stated in the earlier part of the judgment. After close of the prosecution evidence, he accused in their statements under Section 313 Criminal Procedure Code, denied the prosecution case.

The learned trial Court came to the conclusion that no case under Section 302. Indian Penal Code, is made out as the result of the autopsy was inconclusive. The cause of death could not be conclusively estabished as violence. The learned trial Court also disbelieved Balwant Singh (P.W.6), but accepted Ram Pal (P.W. 5) and convicted the appellants under Sections 323/149 and 147 of the Indian Penal Code.

I have heard the learned counsel for the parties and gone through the record of the case.

Dr. Vinod Gautam, who conducted the postmortem examination on the dead body of Ram Dia gave the opinion that he cannot give the cause of death. He found burns all over the body and on account of extensive burns he was of the opinion that cause of death cannot be ascertained. Then a Board was constituted on the direction of Chief Medical Officer, Kurukshetra, at the request of Superintendent of Police, Kurukshetra, which consisted of Dr. B.S. Panwar, Dr. A.C. Nagpal and Dr. V.K. Gupta. The Board came to the conclusion that exact opinion about the cause of death could not be formed although the possibility of asphyxia could not be ruled out as a cause of death. It was further stated by Dr. B. S. Panwar who appeared as P.W. 2 that the Board was not certain even about asphyxia and death could be due to so many other reasons. Except burn injuries there was no other injury on the person of the deceased.

The trial Court has accepted the version of Ram Pal (P.W. 5) for convicting the accused. According to Ram Pal, he was in search of his mentally deranged brother and was going towards bus stand. When he reached near the house of Radhe Sham accused, he heard some noise. On going near the house, he saw Ram Dia deceased being beaten by Bhaga Khati, Dulia, Radhe Sham, Nathi alias Amar his brother Dayal Chand and Bhartu chowkidar, (who were all accused) Ram Pal further stated that the deceased was bleeding from nose and mouth. He was tied with a rope by Duli Chand and put on a cot and was taken inside, the room of Radhe Sham. According to Ram Pal, after that the accused came out ard chained the door from outside. Bhartu chowkidar kept guard outside the door. Then Sarpanch Partap Singh was called and the witness was asked by Bhartu accused to go away from there. Ram Pal further states that when Bhartu asked him to go away he left the place in search of his brother. In the morning next day, he learnt that Ram Dia was murdered and burnt in the house of Radhe Sham. After 15/16 days thereafter. he made a statement to the police. In crossexamination this witness states that his residential house is across the house of Banwari and Ram Parshad P.Ws. and he saw the accused giving fists, slaps and kicks and he watched the entire occurrence silently. He further states in crossexamination that he did not inform the family members of Ram Dia of what he had seen and the explanation given by him is that he was searching for his brother but says further that even after he had come to the house with his brother. he did not inform any member of the deceased of the occurrence nor he informed any neighbour.

The trial Court having disbelieved Balwant Singh (P.W. 6) and the only witness remaining is Ram Pal (P.W. 5), the vital question which arises for decision of the case is whether testimony of Ram Pal is sufficient to convict the appellants. Ram Pal is a witness who is examined by the police 15/16 days after the occurrence and there is no explanation of his nonexamination, for all these days. According to him, he did not inform any one of the incident which he had seen although he is living in the same vicinity. According to Ram Pal, the accused gave fists, slaps and kicks blows, but the postmortem examination of the deceased does not reveal any injury. except the burns. Taking these circumstances into consideration it cannot be said that Ram Pal is a witness on whose testimony implicit faith can be placed. The contradiction by the medical evidence goes to the root of the case. If the accused had caused certain injuries to the deceased then the post mortem report would have shown some marks of injuries on the body of the deceased.

The trial Court while convicting the appellants under Sections 323/149/147 of the Indian Penal Code, has not given any reason as to how it is finding the accused guilty for these offences. There is no evidence as to the fixation of the injuries to any of the accused as no injury was found on the body of the deceased.

Taking into consideration all these facts and circumstances, I am of the view that it is not safe to convict the accusedappellants under Sections 323/149/147 of the Indian Penal Code, as they are entitled to benefit of doubt. Consequently, this appeal is accepted and the accusedappellants are acquitted of the charges.