Ram Awadh and Others vs State of U.P.

K.S. Rakhra, J.—These are two connected criminal appeals by ten persons who have been held guilty and convicted by Sessions Judge, Ghazipur on 21st September, 1982 in Sessions Trial No. 268 of 1981, whereby Bishundhari has been sentenced to life imprisonment u/s 302/149, I.P.C., six months rigours imprisonment u/s 323/149, I.P.C. and two years rigorous imprisonment u/s 148, I.P.C. Remaining Appellants by the same judgment have been sentenced to life imprisonment u/s 302/149, I.P.C., six months rigorous imprisonment u/s 323/149, I.P.C. and one year rigorous imprisonment u/s 147, I.P.C.

Aggrieved by these findings and sentences they have filed these appeals u/s 374, Cr. P.C. The case has arisen out of Crime No. 75 of 1981 of Police Station, Gahmer district Ghazipur. The factual matrix of the case, in short, is that there is a Daya Nath Baba Math in village Lahna within the circle of police station Gahmar.

One Jamuna Giri was the mahant and was managing the land and other property of the math. In the year 1957 when Jamuna Giri died one of his disciple Bhairo Giri became mahant. In the capacity of mahant and Manager of the math property, name of Bhairo Giri was recorded in the revenue records. The prosecution case is that Bhairo Giri and one Deo Nath Koyari father of Appellant-Bishundhari in collusion with some other persons with ulterior motive got the entries in the revenue records changed from Manager of the land to the owner of it. This was done on 31st May, 1979 and in the same sequence within six days Bhairo Giri executed a sale deed of four bigha 12, biswa land of math in favour of Deo Nath Koyari.

Kameshwar Singh P.W. 1 was Sarpanch of Nyay Panchayat of Deval which included village Lahna. He is a big land holder and owns about 200 bighas of land. The prosecution case is that ancestors of Kameshwar Singh had donated the aforesaid land to Daya Nath Math. Sri Bhairo Giri was only a sarvarakar of that math and had power of management only. He had no legal right to transfer the math land to Deo Nath Koyari or anybody else.

In the aforesaid circumstances Kameshwar Singh decided to have the aforesaid illegal sale deed nullified. For this a panchayat was called by him about three months after the execution of the sale deed. This was followed by another panchayat after about a fortnight. The panchayat decided that Deo Nath Koyari will transfer back the land to the math and the sale deed dated 31st May, 1979 was given into the possession of Kameshwar Singh. Deo Nath and his son Bishundhari the Appellant acceded to the decision of the panchayat and it was agreed that within seven days Deo Nath would make application before the Consolidation Officer and a compromise would be filed in the proceedings regarding cancellation of the sale deed and compromise was filed in consolidation proceedings. Subsequently a suit had to be filed when despite all this Bhairo Giri declined to have his name recorded as sarvarakar in place of ownership.

The controversy with regard to aforesaid land is not in dispute and it is also not disputed that consequently the land of the math was transferred back to math and the original sale deed executed by Bhairo Giri in favour of Deo Nath Koyari was handed over to the first informant Kameshwar Singh. This is also an admitted fact that the Appellant Bishundhari and Ram Barat are real brothers and they are son of Deo Nath Koyari. Appellant Indrajit is their brother-in-law.

One Kapil Deo was Pradhan of village Lahna. Appellant-Ram Awadh Koyari is cousin brother and Appellant Kishan Deo Koyari is nephew of the said Pradhan. Similarly the Appellant Hari Kishan Koyari and the Appellant Jang Bahadur are uncle and nephew. Appellant-Sheoji S/o Mahatim is cousin brother of Appellant Pramod Kumar Singh. Loknath is pattidar of Pramod Kumar Singh. Appellant Prabhu Nath Singh is the son of Thakur Lok Nath Singh. All the Appellants except Indrajit are the resident of village Lahna or Dewal which is at a distance of one Kilometre from Lahna. The prosecution further claims that Bhairo Giri originally belonging to the State of Orissa but in his childhood he left his home and came in the shelter of Mahatim Singh of village Dewal and started working with him as his servant. This Mahatim Singh is the father of the Appellant Sheoji Singh.

The prosecution further claims that besides above enmity, relating to the land of math, the Appellants had been sending complaint to the police against the first informant and his family members. One such application was given on 4.2.1981 by Appellant Hari Kishun and the Appellant Prabhu Nath Singh. A police inquiry was instituted on that complaint. Pradhan Kapil Deo Singh was supporting Hari Kishun in the said complaint. The said complaint was prepared by Ram Awadh Singh Appellant.

Admittedly, the first informant Kameshwar Singh is a khandani of the deceased Virendra Singh S/o Vyas Muni, Raj Narain was the brother of Vyas Muni. His son Arun Kumar''s, marriage was solemnised on 29th June, 1981. In this marriage his real brother-in-law Virendra Bahadur Singh (injured) had also participated. On 1st of July 1981, barat of Arun Kumar had returned back to village Seorai which is a village situate at about 8 km. from village Lahna. The first informant Kameshwar Singh and the deceased Virendra Singh, etc. were original resident of village Seorai but they had cultivation also in village Lahna. On 2nd of July, 1981, the first informant Kameshwar Singh alongwith deceased Virendra Singh and the injured Virendra Bahadur Singh returned to village Lahna.

In the night of 2/3 of July, 1981, they were sleeping in the verandah of the first informant''s house. Namu Giri and Hari Narain who were engaged by first informant to look after his house during his absence at the time of marriage of Arun Kumar S/o Raj Narain were also sleeping in the same verandah.

It is alleged that in the night of 2/3.7.1981, at about 1 a.m. Bishundhari, Ram Awadh, Ram Barat, Krishna Deo, Jang Bahadur, Hari Kishun, Indrajit Kushwaha, Sheoji Singh, Pramod Kumar Singh and Prabhu Nath Singh alongwith three or four unidentified persons formed an unlawful assembly with a common object to make entry in the house of the first informant Kameshwar Singh in village Lahna and kill him. The Appellant Bishundhari and his unidentified companions were armed with fire arms while nine named companions were armed with lathis. The above assailants, exhorting each other to open an attack started weilding lathis. On this deceased Virendra Singh flashed his torch and caught Appellant Sheoji Singh. Since the deceased Virendra Singh was stronger than Sheoji Singh, the latter could not release the grip and therefore, he shouted for help, whereupon the Appellant-Bishundhari opened fire on Virendra Singh from his country made pistol causing injury on his chest and he fell to the ground. The first informant Kameshwar Singh some how could sneak out from his house and raised alarm whereupon Sudarshan Singh P.W. 2 and other mohalla people gathered flashing their torches. Culprits thereupon ran away. Virendra Singh died on the spot and in this incident Virendra Bahadur Singh also received lathi injuries. Since it was raining in the night and also on account of fear of the assailants, the first informant Kameshwar Singh could reach police station in the morning at about 6.30 a.m. and lodged report which was registered as Case Crime No. 75 of 1981 against ten named persons.

At the police station Head Constable, Anil Kumar Singh P.W. 9 registered the case and sent Virendra Bahadur Singh, who was accompanying the first informant for medical examination. The investigation of the crime was undertaken by Ram Prakash Pandey P.W. 7. He visited the place of occurrence on the same day at 8.30 a.m. and performed inquest on the body of Virendra Singh which was found in the hata of the house of the first informant Kameshwar Singh in village Lahna. After necessary formalities dead body was sent for post-mortem examination. The Investigating Officer prepared a site plan, recorded the statement of the witnesses and collected necessary material exhibits from the place of occurrence after preparing necessary memos. He collected the blood stained and plain earth from there.

Dr. P. N. Tandon at District Hospital, Ghazipur conducted post-mortem examination of the dead body on 4.7.1981 at 1.30 p.m. and found following ante-mortem injuries on the dead body.

(i) Gun shot wound of entry on left side of chest 3 cm. diametre x chest cavity deep tattooing and charring present, margins inverted, 3 cm. above left nipple at 10 O''clock position. Direction perpendicular.

(ii) Lacerated wound 3 cm. x 1 cm. x bone deep on the mid line back of scalp 2 cm. above occipital protuberance.

(iii) Abrasion 2 cm. x 1 cm. on right temporal region 3 cm. above maxillary process.

(iv) Multiple contusions of 9 different sizes on the back of left shoulder in an area of 10 cm. x 9 cm.

(v) Contusion on left side of chest 9 cm. x 2 cm. 10 cm. below the axilla. Obliquely placed.

(vi) Haematoma both upper and lower eye lids (right) side in 4 cm. x 5 cm.

In the internal examination he found fracture of occipital bone and bleeding right ear 3rd, 4th and 5th ribs were also found fractured and pleura and left lung was lacerated. Some paper and wad pieces were found in the lungs. Six pellets were found lodged in the interior wall on left side heart. In the stomach two ounces digested food materials and faecal matter in the small and large intestine were found.

Doctor opined that death had occurred due to shock and haemorrhage arising out of ante-mortem injury Nos. 1 and 2.

On the other hand injured Virendra Bahadur Singh P.W. 4 was medically examined at P.H.C. Bhadaura of district Ghazipur on 3.7.1981 at 1 p.m. and following injuries were found on the person.

(i) Contusion 2 cm. x 1 cm. reddish in colour on dorsal surface of middle finger of right hand.

(ii) Contusion 1 cm. x 1 cm. reddish in colour, on the outer and the lower part of the right arm.

(iii) Complain of pain in the middle of right arms but no evidence of mechanical violence detected.

(iv) Lacerated wound 3 cm. x 0.4 cm. x muscle deep, margin irregular echymosed on the posterior part of the frontal bone. Advised X-ray of skull.

All the injuries suffered by him were simple and caused by blunt object and were about one day old. Injury No. 4 was kept under observation but nothing abnormal was detected. Ex. Ka-11 and Ex. Ka-41 are the post-mortem and injury reports respectively.

On the basis of above material police after investigation submitted charge-sheet. The accused persons denied their involvement and claimed that they have been falsely implicated on account of enmity.

In the trial prosecution examined 11 witnesses whereas no evidence was adduced by the accused in their defence.

Kameshwar Singh P.W. 1, Sudarshan P.W. 2, Vijay Bahadur Singh P.W. 4, Namu Giri P.W. 5 are said to be eye-witnesses of the occurrence. Out of them Kameshwar Singh, the first informant is owner of the house where incident took place and Vijay Bahadur Singh is injured witness.

Dr. P. N. Tandon P.W. 3 had conducted post-mortem examination and proved his report Ex. Ka-11 and had opined that the death of Virendra Singh could have occurred on account of injury Nos. 1 and 2 suffered in the night of 2/3rd of July, 1981 at about 1 a.m. The injuries were sufficient to cause instant death. Similarly Dr. S. C. Gupta P.W. 10 had deposed that he had medically examined the injured Virendra Bahadur Singh. He proved his injury report Ex. Ka-41 and stated that injuries suffered by him could have occurred at the date and time suggested by the prosecution Sri R. P. Pandey, P.W. 7 is Investigating Officer who after investigation submitted charge-sheet Ex. Ka-39. He had also performed inquest of the dead body. All other witnesses are formal witnesses.

So far as the eye-witnesses are concerned, they have fully supported the prosecution story. Kameshwar Singh, P.W. 1 the first informant proved enmity, inter se relationship of the accused persons as well as of the deceased and the injured with him. He has also deposed that after the return of barat, the deceased injured witness and the first informant had returned to village Lahna and were sleeping in the verandah of the house of the first informant when the attack was opened on them. He had also stated about the existence of lighted lantern hanging on the peg of the wall and deposed that torches were flashed by the accused persons as well as by the victim and the witnesses. Narrating the incident he has stated that assailants exhorting each other opened lathi attack on Virendra Singh and Virendra Bahadur Singh whereupon Virendra Singh succeeded in catching the Appellant Sheoji Singh. Both of them grappled with each other and came out in the open sahan, when Sheoji shouted that he had been caught and requested for help. The witnesses says that all the assailants started beating Virendra Singh with lathis while Bishundhari shot a fire on the chest of Virendra Singh. He named all the accused persons who are named in the first information report. He further deposed that he prepared the written report and went to the police station alongwith Virendra Bahadur Singh and lodged it there at about 6 a.m. From police station Virendra Bahadur Singh was sent for medical examination. The witness also admits that he owns a tractor but had walked all the way upto the police station covering 15 kms. distance to lodge the report. He also admitted that the incident is of dark night. It rained heavily about 15 to 20 minutes after the incident and the rain continued upto about 2.30 or 3 O''clock in the morning. According to him even after the incident it was so dark in the open that things were not clearly visible without the aid of source of light. The witness further deposed that at the time of marpit only torch of Virendra Singh deceased was flashed and no other torch was flashed. His testimony shows that marpit with lathis only took place till shots was fired on Virendra Singh. He also stated that the Appellant Bishundhari had fired on Virendra Singh from a very close range. This statement of the witness was corroborated by the presence of wads and paper seal in the injury of the victim. Doctor had also found tattooing and charring with injury No. 1. He claimed that he had flashed his torch light on the culprits and they also flashed torch on him and rebuked him.

Corroborating his testimony Sudarshan P.W. 2 stated that he has his house closeby and on hearing alarm he also reached the place of occurrence. He flashed torch light on the culprits and had seen 12 to 14 of them. He named all the Appellants and stated that they were accompanied by four persons whom he could not identify. Bishundhari was carrying country made pistol while the rest were armed with lathis. He corroborated the testimony of the first informant.

Virendra Bahadur Singh P.W. 4 also supported the prosecution story and stated that he had come to attend the marriage of his brother-in-law and was sleeping in the house of first informant on the fateful night when 13-14 persons weilding lathis and opened attack on them. He also claimed that Virendra Singh, Kameshwar Singh and Namu Giri flashed their torches in the light of which he had seen faces of the culprits. According to him all the assailants wielding lathis and fire arms opened attack. Appellants Prabhu Singh and Pramod Kumar started belabouring him with lathi whereas Sheoji and another opened attack on Virendra Singh. The witness said that when he was attacked, he made a prayer to the assailants with folded hands to spare him as he was only a relation and had nothing to do with their dispute. He deposed that on this culprits stopped beating him. He also corroborated the prosecution story that the Appellants Bishundhari had opened fire on Virendra Singh who had caught Appellant-Sheoji Singh. Since he is an injured witness and is related to Arun Kumar Singh as well as P.W. 1 Kameshwar Singh, his presence on the spot is at all not doubtful, although he is resident of village Shekhanpur which is about 50 km. away from the village Lahna. He conceded in the cross-examination that at the time of incident he was not carrying any source of light.

Lastly, Namu Giri P.W. 5 has been examined to support the prosecution version. He was a person who was engaged as a care taker of the house in the absence of the first informant who had gone to attend marriage of Arun Kumar. He also corroborated the testimony of Virendra Singh to the effect that when the latter prayed with folded hands that he may be excused as he was a stranger and had nothing to do with the local controversy, the culprits stopped beating him.

Sri V. P. Srivastava, learned Counsel for the Appellant strenuously argued that there was enmity between the two sides and the possibility of the Appellants being falsely implicated out of enmity cannot be ruled out. Learned Counsel for the Appellant drew attention of the Court to the fact that there was delay in lodging of the first information report. His submission was that the first informant owned a tractor and therefore, there was no reason for him to go to the police station on foot to lodge the report at the police station at 6.50 a.m. His submission was that the first informant had gained time in order to have consultation for falsely implicating the Appellants. Learned Counsel took support from the fact that number of blunt object injuries suffered by the deceased as well as injured witness were not in proportion to the number of the accused persons who used lathis. It was argued that the night was dark and there was insufficient light to identify all the assailants and therefore, possibility of false implication cannot be ruled out. Learned Counsel for the Appellants laid emphasis on the fact that although Kameshwar Singh the first informant was the main enemy but no harm was caused to him in this incident.

The last argument of learned Counsel for the Appellant was that even if the prosecution story with regard to date, time and place of the occurrence is believed, the evidence adduced by it is not sufficient to show that common object of the unlawful assembly was to cause death of any one. He contended that since Bishundhari had opened fire, he alone could be responsible for his action and no other co-accused could be held vicariously liable for the act performed by him.

Sri A. N. Tripathi, learned Counsel for the complainant assisting Sri Ali Murtaza, A.G.A. for the State, on the other hand contended that the prosecution story is fully reliable and is proved by injured and other witnesses. Learned Counsel for the complainant has tried to explain number of injuries vis-a-vis number of accused persons by saying that injury No. 4 described in the post-mortem examination report Ex. Ka-11 should be counted as nine different injuries rather than one multiple contusion of 10 cm. x 9 cm.

We have gone through entire evidence carefully and analyse the same in the light of the argument raised before us. We find that there is sufficient material on record to prove strong enmity and motive for commission of the offence. The fact that Bhairo Giri made an attempt to transfer the land of math to the father of the Appellant Bishundhari and the fact that the panchayat was held at the behest of the first informant and the land of the math was ultimately restored is not disputed. Since the accused persons were either related to each other or had jointly or severally developed animosity against the first informant, they had motive to form unlawful assembly for the purpose of causing harm to the first informant or other persons related to him. The fact that no harm was caused to the first informant cannot be interpreted to mean that he was not there or that the incident had not taken place. It has come in the evidence that it was dark night and although some torches might have been flashed the light was not sufficient. Taking advantage of this, the first informant sneaked out of the house as has been deposed by the witness.

However, we do not find that the number of injuries suffered by the deceased and injured witness bear a reasonable proportion to number of accused persons and the weapons used by them. It is significant to note that out of 13 to 14 persons who had gone to the place of occurrence, nine were armed with lathis and five with fire arms. They opened an attack with lathis and the persons carrying fire arms did not use them. Only one of them namely Bishundhari used his fire arm during the occurrence and that too against Virendra Singh who had caught Sheoji and he was not able to free himself from his grip and was shouting for his help. The fact that culprits opened attack with lathis and they stopped belabouring Virendra Bahadur Singh P.W. 4 when he disclosed that he was only a relation of the first informant means that they were looking for the first informant and had intention only to belabour him. This fact also indicates that there was not sufficient light in which all assailants could be identified and therefore, the assailants also could not promptly identify their targets.

Deceased Virendra Singh had received six injuries in all, out of which injury No. 1 was a gun shot wound and injury No. 6 was a haematoma on upper and lower eye lids. Remaining four injuries were attributable to use of lathis. Injury No. 2 was lacerated wound 3 cm. x 1 cm. x bone deep on the skull. Injury No. 3 was small abrasion of 2 cm. x 1 cm. on right temporal region. Injury No. 4 were nine contusion of different sizes on the back shoulder in an area of 10 cm. x 9 cm. Injury No. 5 was a contusion on left side chest in an area of 9 cm. x 2 cm. We do not agree with the argument of complainant counsel that injury at serial No. 4 which was nine different sizes of contusion in an area of 9 cm. x 10 cm. on the back of left shoulder could be attributed to nine different authors. In our opinion it was a single injury which could be caused by blow of blunt object or by a fall. We have no doubt in our mind that the number of blunt object injuries suffered by Virendra Singh are grossly disproportionate to the number of accused persons. In the circumstances of the case, the possibility of false implication cannot be ruled out. Similar is the position of injury suffered by Virendra Bahadur Singh P.W. 4 who is an injured witness. He had suffered only three visible injuries attributable to some blunt object. Injury No. 1 is contusion 2 cm. x 1 cm. on right finger. Injury No. 2 is contusion 1 cm. x 1 cm. on the right arm. Injury No. 3 is complain of pain and the injury No. 4 is lacerated wound 3 cm. x 0.4 cm. x muscle deep on the posterior part of the frontal bone. This nature and number of injuries is also disproportionate to the number of accused persons and the role attributed to them. The first information report was lodged at 6.30 a.m. Although there is good explanation for delay as it was raining till 2.30 or 3 a.m. but nevertheless it gives an opportunity to the informant to add names of the persons who were not involved but were inimical to him. In such circumstances evidence has to be examined very carefully to identify those persons about whose involvement there is no doubt. Rest of the persons should be given benefit of doubt.

Examining the evidence on this touchstone, we find that the participation of Bishundhari, Sheoji Singh, Pramod Kumar Singh, Prabhu Singh to whom specific roles have been attributed by the prosecution witnesses is fully established. While Sheoji Singh is the person who was caught on the spot by Virendra Singh, Bishundhari had fired for getting Sheoji freed from the grip of Virendra Singh. About Pramod Kumar Singh, Prabhu Kumar Singh, P.W. 4, Virendra Bahadur Singh injured witness has clearly stated that they had assaulted him with lathi and stopped beating only when he with falded hands disclosed to them that he was only a relative who had come from other village. With regard to remaining Appellants we are of the opinion that it cannot be said with certainty as to which of them actually participated in the crime.

We are further satisfied that assailants had no common intention or object to cause death of anyone. They had not opened fire straightaway nor did they use the fire arm in the commission of the offence except once when Sheoji was caught and was shouting for help for being released. The opening of fire by Bishundhari in the circumstances of the case was only an individual act and others cannot be held responsible vicariously for this act. Since all eye-witnesses whose presence on the spot is not doubtful, have stated that culprits were about 13 or 14 persons we are satisfied that they had formed an unlawful assembly, common object of which was to chastise and belabour the first informant, etc. on account of old enmity.

In view of the above analysis of the evidence and circumstances we are of the opinion that only Bishundhari, Sheoji Singh, Pramod Kumar, Prabhu Nath Singh are liable to be held guilty. The rest of the Appellants are entitled to benefit of doubt and should have been acquitted. The trial court has committed an error and illegality in convicting and sentencing them. We, therefore, allow the appeal of the Appellants, Ram Awadh, Ram Barat, Krishna Deo, Jang Bahadur, Harikishun and Indrajit, Appellants in Criminal Appeal No. 2358 of 1982. Their conviction and sentence passed by the trial court on them are set aside and they are acquitted. They are on bail. Their personal bonds and sureties are discharged. They need not surrender.

Out of the remaining Appellants, appeal of Appellant-Pramod Kumar Singh abates as he is dead while appeal of Prabhu Nath Singh in Criminal Appeal No. 2358 of 1982 is also partly allowed. His conviction and sentence u/s 302/149, I.P.C. is set aside while conviction u/s 323 read with Sections 149 and 147, I.P.C. and sentence passed on him by the trial court are hereby confirmed.

The appeal of Appellant Bishundhari (Appeal No. 2359 of 1982) is dismissed and sentences passed on him by the trial court are confirmed although his conviction u/s 302 read with Section 149, I.P.C. is converted into conviction u/s 302, I.P.C. simpliciter and the rest of the conviction as well as sentence would remain intact.

A copy of this judgment be certified to the trial court for execution of the sentences indicated as above.