Shobha Nath and Others vs State

I.P. Vasishth, J.—The instant appeal is directed against the judgment and order of sentence dated 31.10.1979 passed by Sri R.S. Srivastava, the then IIIrd Additional Sessions Judge, Barabanki.

According to the prosecution, the complainant P.W. 1 Smt. Phool Mati and her deceased husband Ram Asrey residents of village Hetmapur were "Mahapatra Brahmans" who usually assisted in the performance of the last rites of the dead persons and received the usual ''Maran Dan'' from the bereaved families. Howsoever-unpleasant the job, it was a part of their professional obligation; albeit a source of income. Accused Shobh Nath is a resident of village Kodri whereas accused Radhey Shyam, Mannu and Ram Lakhan belong to village Pandopur. Both these villages are situated in the close proximity of village Hetmapur and they too are ''Mahapatra Brahmans'' by caste. Obviously they also assist the bereaved families in the performance of the last rites of their dead and in the process obtain the usual Maran Dan.

For quite some time, there was a sort of bickering and bad blood between the deceased on one side and all the accused on the other with regard to the discharge of the aforesaid duties and drawing of the benefit of the Maran Dan. About four years prior to the present incident, there was a quarrel between the parties at the time of death and performance of last rites of one Mahant Guru Prasad whose Maran Dan was drawn by the deceased Ram Asrey. Two years thereafter there was yet another incident in which Ram Asrey was assaulted by the accused and the matter was reported to the police; but it appears that the issue was not stretched any further.

It was alleged that on 9.1.1976 shortly before sunset. Ram Asrey and his wife Phool Mati were cutting grass in the jungle of village Hetmapur, closeby P.W. 2 Ram Karan alias Jawan of village Bahadurpur and P.W. 3 Vikram of village Chimlatl were also engaged in similar activity. All of a sudden all the four accused armed with lethal weapons, i.e., Bankas and Kantas pounced upon Ram Asrey and in a swift and surprising move, assaulted him fatally. The witnesses were scared away by the show of weapons. Immediately after the assault all the accused escaped from the spot along with their respective weapons whereas Smt. Phool Mati on finding that her husband was dead raised a hue and cry. On leaving the aforesaid witnesses to keep a watch over the body, she went to the village and collected people. She also took P.W. 5 Molhey Chowkidar to the spot and in his company, remained there all throughout the night. In the morning Setai Chowkidar was also called and the dead body was entrusted to him. Then with Molhey Chowkidar she left for the police station to lodge a report. However, on the way they contacted one Beche Lal in village Kodri and got scribed the report Ext. Ka. 1 which was ultimately handed over by her to the police at the police station on the same day, i.e., 10.7.1976 at around 12 noon. On the basis thereof formal F.I.R. Ext. Ka. 12 was recorded.

P.W. 5 Incharge police station. Jagannath Prasad investigated the matter, he went to the spot, took charge of the dead body, conducted the inquest and dispatched the dead body to the mortuary for post-mortem. The autopsy was conducted by P.W. 6 Dr. Rafat Ashfaq who found it carrying the following ante-mortem sharp weapon injuries:

Incised wound 19 cm. x 8 cm. on the front and toe of lower neck-trachea and oesophagus and the intervening muscle and tissue cut. 6th cervical vertable (sic) cut in the middle.

Incised wound 8 cm. x 5 cm. x cavity deep on the right side of abdomen at the sub-costal margins; direction upward medially.

Incised wound 5 cm. x 1 cm. x muscle deep on the left side of face over the mandible.

The accused remained absconding for quite some time, and could not be formally arrested before 15.1.1976 when they surrendered in the court. On due completion of investigation, the police booked the accused for trial and examined ten witnesses in all including the aforesaid material characters. In their statements u/s 313, Code of Criminal Procedure denying the allegations the accused pleaded false implication on account of enmity. No defence was, however, adduced.

On conclusion of trial, the learned Additional Sessions Judge found all the four accused guilty for the offence punishable u/s 302 read with Section 34, I.P.C. and sentenced them as indicated here-in-before. Feeling aggrieved, they approached this Court by way of a formal appeal.

The learned Counsel was at pains to assail the trial court judgment primarily on the ground that there was inordinate delay in lodging the report about the occurrence which allegedly took place on account of an old and stale motive which, too, remained unsubstantiated and that the so-called independent eye-witnesses hardly inspired confidence. It was suggested that the witnesses either belonged to far off places or were close associates of the deceased and that there was no corroboration from any supporting material by way of scientific investigation.

On the other hand, for the obvious reason, the learned Counsel for the state was all appreciative of the trial court approach in taking a practical view of the occurrence which took place within the full purview of the deceased''s wife who could not possibly substitute innocent people for the real culprits. It was argued that had the witnesses been associates of the deceased or of the procured type, they would not adopt the casual attitude manifested by them in withdrawing from the spot on the same very evening when Ram Asrey was done to death in a cold blooded murder. It was argued that since the occurrence took place at quite some distance from the village abadi in late hours of a winter evening and there was no adult male member in the family to assist the complainant Smt. Phool Mati''s Journey to the police station, therefore, the delay in lodging the report does not warrant any serious notice particularly when no prejudice is shown to have been caused to the accused.

This apart, both the parties propagated their own viewpoint about some discrepancies and contradictions in the statements of the witnesses as to which particular weapons were carried by the accused and who amongst them had caught hold of the deceased to facilitate the remaining two to give the fatal blows.

The court is fully conscious of the fact that quite often it is difficult for the prosecution to give cogent and reliable evidence on the issue of motive, as it is a malicious human trait which remains locked into the heart and mind of the concerned man and may not even be deciphered despite being translated into action. That is how that according to time honoured practice, which has since matured into rule of prudence, the courts do not insist on hard and concrete evidence of motive when credible eye-witness account is available. After all, quite often even very heinous crimes take place on the spur of moment, particularly the type of murders which relate to the domain of an impulsive human aberration.

Similarly insistence on absolutely independent and detached witnesses is also fraught with the danger of concoction because perfection in this imperfect world is something which is beyond human comprehension. It is besides the point that close relations and associates, even if they were interested in making a biased statement, would hardly go out of the way to substitute the innocents in place of the real assailants. There may be cases of false implication of one or two due to rancour and animus, but then it casts an obligation on the court to analyse their evidence with a hawkish eye to sift the grain from the chaff. An interested witness "per se" would incur no disqualification if otherwise found to be natural and trust-worthy. To put it in simple words, the ocular evidence calls for a critical appraisal on the touch-stone of the human conduct leaving the benefit of doubt for the accused but its element has to be of reasonable type rather than fanciful.

Be that as it may, coming to the grips with regard to the alleged culpability of the Appellants, in the totality of the material available on record, the court may not find it a safe proposition to sustain the verdict of conviction. On the showing of the prosecution itself, bickering and bad blood between the parties started on the collection of Maran Dan much prior to the occurrence and got aggravated about four years before the charged murder when the deceased took the Maran Dan of some well-to-do Mahant named Gur Prasad; but nothing unwarranted happened at that stage. The mistrust or as one may put it the mutual hatred, went on simmering and bursted in violence about two years prior to present incident in an assault on Ram Asrey by the accused party. This incident was allegedly reported at the police station but nothing was shown to the court to corroborate the statement of Smt. Phool Mati in this context. To put it in plain words, even a copy of the said report was not placed on record and it was also not elaborated as to whether the accused were booked for that assault, and if so, whether they were prosecuted for the same. The inference would, therefore, be that either the incident was of a trivial nature which did not call for any action by the complainants or the parties forgot it as of no significance. All the same, one thing remains pertinent that if at all anybody could be aggrieved from that incident, it must have been the deceased Ram Asrey or his wife and not the accused party because they had, after all, secured a point by giving him the thrashing.

13A. It thus remains a mystery as to how and for what good or bad reasons this simmering rancour bursted up all of a sudden in the type of action on the part of accused to make the calculated and concerted fatal assault on Ram Asrey, and that too, within the full purview of his wife and two eye-witnesses whose credentials would be dealt with in the later part of this judgment.

One may not have any serious quarrel with the submission of the learned Government Advocate that in the propagated circumstances, the delay in lodging the F.I.R. might not be frowned upon because Smt. Phool Mati was an unfortunate witness to the said crime, who might have been frightened and terrified and due to lack of any male support in the house might not have possibly ventured in the late hours of the night to travel twelve miles from her house to lodge a report at the police station. Her conduct in contacting the village Chowkidar and seeking the assistance of another Chowkidar to keep a guard over the dead body on the next morning while undertaking journey to the police station could also be a normal feature, but what disturbs the judicial conscience is her conduct in stopping on the way in village Kodri and dictating the report Ext. Ka. 1 to one Beche Lal who is not shown to be a man of any position or status in the village. At the risk of repetition, it may be pointed out that the murder took place in the area of village Hetmapur to which the complainant party belonged whereas Beche Lal was living in village Kodri whose distance from Hetmapur is not even revealed. There were Pradhan and other Punch members in both these villages, but instead of reporting the matter to them, the complainant opted for Beche Lal. It is also conceded that there was no dearth of educated people in these villages.

It is not explained as to what for Smt. Phool Mati wasted her time in lodging her report to Beche Lal before its production at the police station after 12 noon; and surprisingly enough Beche Lal was neither produced before the court nor even associated with the investigation. So it remains a moot point as to whether Beche Lal was an existing person carrying a genuine identity. This query becomes all the more relevant and significant when we examine the closing part of the contents of the report Ext. Ka. 1 which indicates that the report was probably recorded at the police station. The relevant portion is in Hindi and if translated in English, it would read like, "on narrating the entire incident to Beche Lal of village Kodri and getting it recorded from him, I have come to the police station along with the Chowkidar to lodge a report."

The aforesaid report Ext. Ka. 1 and the formal F.I.R. contains the names of the eye-witnesses Jawan alias Ram Karan and Vikram. Out of them, Vikram appears to have corroborated Phool Mati on material particulars whereas Ram Karan refused to do so and with the permission of the court was cross-examined by the learned prosecutor. The gist of his statement was to the effect that when he reached the spot, he found the dead body of Ram Asrey who had been done to death by somebody, but he did not see assault or the assailants and somuch so that even Ram Asrey''s wife Smt. Phool Mati was not there. He admitted that he knew the accused beforehand but categorically denied their involvement in the alleged murder. Nothing substantial could be brought on record to indicate his bias or prejudice for either of the two parties.

The ocular testimony of Phool Mati and Vikram requires to be appraised in the light of medico-legal evidence coming by way of autopsy report prepared by P.W. 6 Dr. Rafat Ashfaq. The gist of his observations with regard to the injuries has already been reproduced in the earlier part of this judgment. To have a back reference thereto, the deceased had three incised wounds, at least one of them was carrying a length of 8 cm. and was cavity deep on the right side of abdomen at the sub-costal margins with upward medial direction. Obviously it must have caused a sharp cut in the vest or shirt which the deceased was wearing at the time of incident, but no such apparel was produced in the court. Similarly, injury No. 1 which carried an incised wound to the extent of 19 cm. with 8 cm. width on the neck-trachea and oesophagus must have bled profusely, if not soaked, the clothes of the deceased. Even that evidence was not produced. Having regard to the ordinary human conduct, one may not be off the target to believe that in all probability Phool Mati must have physically checked up the dead body after the assailants bolted away from the spot. As a matter of fact, she would have hugged the deceased because he might have taken some time to breath his last after the assault, but no bloodstain was shown on any of the wearing apparel of the complainant either.

Both she as well as Vikram were assertive in their depositions that the assailants had pinned down Ram Asrey to the ground. Two of them had secured him by hands and pressed his head on the ground to the extent that it had partly gone inside the mud. The legs of the deceased were still free during this process and the assault was made then and there. So the deceased must have fallen on the ground with a thud, but there was neither any scratch nor any abrasion on his back side; so much so that even the greenish stains of grass were not visible on the back side of his clothes. At the time of spot inspection, the Investigating Officer did not find any mud and that is how that no trace of mud was observed even by Dr. Rafat Ashfaq at the time of autopsy. Besides this, there was no mark of struggle at the place of occurrence as per sworn testimony of the Investigating Officer in the witness box. The court is of the considered opinion that if the person of the deceased were to be secured in the suggested manner, the deceased must have struggled to get himself liberated by banging his feet on the ground in a cycling like manner thus causing the breakage of the grass stalks and blades.

Both the alleged eye-witnesses Vikram and Jawan were known to the deceased and his family for the last forty years as per admission of the latter''s widow Smt. Phool Mati herself. From her statement, it further appears that the deceased himself was not a man of very high credentials. He was a convict of a dacoity case and had served out substantive sentence of not less than eight to nine years rigorous imprisonment. P.W. 2 Jawan alias Ram Karan admitted his involvement in a murder case whereas Vikram was still under prosecution in a case of abducting a woman. He, of course, denied his conviction in the dacoity case, but could not conceal that he was also prosecuted for dacoity. So their reluctance to attempt even a verbal intervention to rescue an old time friend and colleague is something which defies logic. It is besides the point that even Phool Mati made no effect to intervene to rescue her husband.

At this stage, it may also be worth-while to note that both the alleged independent witnesses Ram Karan and Vikram belonged to a distant village and were stated to have come to the outskirts of village Hetampur only to collect grass, as if it was not available in their neighbourhood; they had stacked the cut grass and tied it in bundles which they were supposed to carry home; the sun was about to set and yet in that cold evening of January, they continued the chore regardless of an impending hazardous back home journey through a thick jungle.

It is against the aforesaid back drop that an important concession given by P.W. 3 Vikram during his cross-examination assumes significance as he conceded that on the very next morning of the alleged murder, he had met the Investigating Officer at the place of occurrence itself at 10 a.m., i.e., even prior to the lodging of the report Exts. Ka. 1 and Ka. 12 by Smt. Phool Mati. Similarly, the inquest-witness P.W. 4 Badloo conceded in his cross-examination that in the morning when the dead body was found lying on the spot, there was a lot of hue and cry in the village besides Phool Mati he also reached there at that very time and that Phool Mati started wailing, weeping and crying on seeing the dead body, meaning thereby that Phool Mati learnt about the death of her husband for the first time only on the following morning of the alleged murder.

In the totality of circumstances, it thus appears that probably after getting an information about the death of Ram Asrey either during the night itself or on the following morning, the police went to the spot, collected people and then roped in the accused on the basis of their past bitterness with the deceased and obtained report Ext. Ka. 1 from Smt. Phool Mati inducting two convenient persons as the eye-witnesses. Similarly, the scribe of the report Ext. Ka. 1 Beche Lal was also probably introduced to cover up the delay in lodging the report and that explains the glaring contradiction in the ocular testimony of Smt. Phool Mati and Vikram as to whether accused Shobh Nath and Radhey Shyam had secured that person of the deceased whereas the assault was given by Mannu and Ram Lakhan or as to whether the latter two had pinned down the deceased to the ground to facilitate the former two to give the fatal assault. To sum up; the surrounding circumstances are shrouded and woven in a web of some unexplained improbabilities which make it a reasonably doubtful proposition to believe the presence of the witnesses at the relevant time and place of the alleged occurrence as well as involvement of the accused in the crime.

Hence for the reasons recorded above, the judgment of conviction and order of sentence are unsustainable. Resultantly, the appeal is allowed. The impugned judgment of conviction and order of sentence are set aside and all the accused-Appellants are acquitted of the charge.