State Of Madhya Pradesh vs Ramroop

Ashok Kumar Joshi,J

Challenge in this appeal filed by the State/appellant under Section 378 of the CrPC is to the judgment dated 19.5.2000 passed by Fourth Additional

Sessions Judge, Bhind in Sessions Trial No.257/1998, whereby the present respondent Ramroop was acquitted from the charge of Section 302 read

with Section 120-B of the IPC.

It would be significant to mention here that at the time of passing of above mentioned judgment dated 19.5.2000 other co-accused persons

Haribaba, Ramsiya and Rinku were said to be absconding.

Prosecution's case in brief is that on 23rd April, 1997 at 4=30 pm Kotwar Shivprasad lodged merg intimation report (Ex. P/11) to the effect that at

the relevant time he (Shivprasad) was cultivating the agricultural land of Puttu Singh Khangar, resident of Madhepura and had accumulated the

harvested wheat crop in relating field. On 19th April, 1997, when harvested crop was lifted, then a burnt skull of a person was seen, then his brother

Ramdas threw that skeleton of skull in the field of Tej Singh Rathor and relating burnt skull was lying there. On report of complainant Shivprasad (Ex.

PW-11), merg No. 2/97 was registered and after due investigation, crime No. 17/1997 was registered vide FIR (Ex.P/11). Under merg enquiry, it was

found that on 16.4. 1997 Ramshiroman who was son of Vidyaram (PW-9) and Kalawati (PW-3) was taken from his house by respondent Ramroop

and co-accused Rinku by saying that absconding dacoit gang leader Haribaba has invited him for taking food in Bhandara, but thereafter

Ramshiroman did not return to house. After recovery of burnt skull from field situated in village Gaheli, the burnt skull was identified by Vidyaram

(PW-9) as skull of his missing son Ramshiroman. Later on, it was revealed from police statements of Brajesh Sharma (PW-1) and Harish Chandra

(PW-2) that on 16.4. 1997 (date of incident), when both of them were wandering on bicycle in nearby villages Gaheli and Pachera in reference to

their business of purchasing and selling buffalows, then they heard the sound of talking of Haribaba with Ramshiroman in behad situated near village

Gaheli, and thereafter they heard sound of firing of shots by guns and being frightened they returned to village Chandupura. The recovery of burnt

bones of skull and later on recovered some other burnt bones were sent to  Medico-legal Institute, Bhopal, where Dr. D.K. Satpati (PW-20) on

1.9.1999 examined sent various burnt bones and their pieces and opined that all the bones belonging to same person, who was by gender male and

aged about 25 to 30 years, but as there was no injury to any bone was visible, the duration of death could not be opined. Dr. Satpati recorded his

report (Ex. P-12). After completing formalities of the investigation, describing Haribaba, Ramsiya and Rinku as absconder, chargsheet was filed

before relating JMFC against arrested accused Ramroop. Arisen criminal case was committed to Sessions Judge, Bhind, who transferred relating

sessions trial to Fourth ASJ, Bhind.

Respondent Ramroop denied charges framed by trial court u/s. 302/34 and Sec. 120-B of the IPC. In respondent's trial prosecution witnesses

Brajesh Sharma (PW-1), Harischandra (PW-2), Kalawati (PW3), Radheshyam (PW-4), Shivprasad (PW-5), Shivraj Singh (PW-6), Ramdas (PW-7),

Ashok (8), Vidyaram (PW-9), Brajesh s/o Vidyaram (PW-10), Amar Singh (PW-11), Rajendra Singh (PW-12), Betal Singh (PW13), investigating

officer Omprakash Sharma (PW14), Ramnath (PW-15), head constable Mohd. Khan (PW-16), then S.H.O, Police Station, Amayan Rajendra (PW-

17), constable, Ramgovind Singh (PW18), ASI Rambahadur Singh (PW-19), and Dr. D.K. Satpati (PW-20) were examined. It was the defence of the

present respondent that he was falsely implicated, and it was specific defence of the respondent Ramroop that he remained hospitalized in Community

Health Center, Mehgaon from 15.4.1997 to 20.4. 1997 and on this point Dr. K.P. Rajoria (DW-1), Mahaveer (DW-2) were examined and respondent

Ramroop examined himself as (DW3) before the trial court. The trial court by its impugned judgment dated 19.5. 2000 acquitted the respondent

Ramroop from charged offences. Hence, this State appeal against his acquittal.

Appearing learned public prosecutor Shri J.M. Sahni on behalf of appellant/State vehemently contended that it was proved from the evidence of

father, mother and two brothers of deceased Ramshiroman that Ramshiroman was taken by present respondent Ramroop and Rinku intimating him

that Haribaba invited him in bhandara and it was proved from evidence of eye witnesses Brajesh Sharma (PW-1) and Harish Chandra (PW-2) that

they were eye witnesses to the incident, who saw and heard the talking of  Haribaba and deceased in relating behad and also saw Haribaba and

Ramroop with guns encircling Ramshiroman and later on they heard the sound of firing and being frightened by dacoit Haribaba's gang, they did not

disclose the incident to family members of deceased, though they were close relatives of the deceased and after recovery of the burnt skull, they

disclosed the incident firstly to the relatives of the deceased and thereafter to police. It is also argued that in view of the  terror of dacoit gang leader

Haribaba in relating area, the conduct of both eye witnesses could not be stated to be unnatural and unbelievable. Hence it is prayed that appeal be

allowed and respondent Ramroop be adequately punished.

Per contra, learned counsel for respondent has totally supported the findings recorded by trial court on grounds that the trial court has minutely

analyzed and appreciated the entire evidence available on record and it was proved by evidence of Dr. K.P. Rajoria (DW-1) and relating record of

relating hospital that respondent was admitted in Mehgaon Hospital at relevant time, hence acquittal of Ramroop could not be disturbed especially in

view of limited scope of interference in criminal appeal against acquittal, in absence of any perversity. It was also contended by learned counsel for

respondent that even the identity of the recovered burnt skull and other bones being of deceased Ramshiroman was not established beyond reasonable

doubt, as his dead body was not recovered or seen by anyone.

According to evidence of mother Kalawati (PW3) and brothers Brajesh (PW-10) and Radheshyam (PW-4) of the deceased, deceased

Ramshiroman was taken on the date of incident i.e. 16.4. 1997 from his house situated at village Gaheli in presence of her mother and brother Brajesh

by Ramroop present respondent and co-accused Rinku and at the time of leaving the house, deceased's brother Brajesh (PW-6) was with deceased

as deceased took food from his house to give it to his another brother Radheshyam (PW-4) who was at that time was busy with his work at khaliyan

and after providing food to Radheshyam deceased went with Ramroop and Rinku for attending bhandara as on that day Ramnavmi (Navami of Chitra

month of Indian Calendar) was being celebrated. Father of deceased Vidyaram (PW-5) has gone to Rawatpura from some days prior to the incident,

performing yogya at Rawatpura, but returned at about 9 p.m on the day of incident to his house and in the same night, though according to evidence of

family members of deceased, Ramroop returned to the village, but Ramshiroman has not returned back to his house and even after enquiry from

Ramroop till recovery of the burnt skull on 23.4. 1997, no missing person's report was lodged by any close relative of the deceased at any police

station.

According to evidence of both alleged eyewitnesses Brajesh Sharma (PW-1) resident of village Pachera and Harish Chandra (PW-2) native

resident of village Chandupura but at that time he was residing  at Gwalior and they were close relatives of the deceased and according to evidence

of both these eye-witnesses, they were together in the behad situated between villages Gaheli and Dhorka and they heard talking between Haribaba

and Ramshiroman at the place of incident keeping themselves hidden at some distance and Haribaba was telling to Ramshiroman that his father i.e.

Vidyaram had grabbed money of Haribaba's real brother Avdhesh, hence he would not leave them and both these eye witnesses deposed that they

were acquainted with the voices of Haribaba and Ramshiroman.

Harishchandra (PW-2) deposed that he saw Habribaba, Ramsiya, Ramroop and Rinku from some distance and each person was having separate

gun in his hand and Ramshiroman was crying and they also heard some gun-shots, but surprisingly Brajesh Sharma (PW-1) deposed that at that time

of hearing some talking that Radheshyam (PW-4) was also with him, but this fact is not deposed by Harish Chandra (PW-2) and even by

Radheshyam (PW-4). Harish Chandra (PW-2) was declared hostile by prosecution as his evidence was not  in total accordance with his police

statement, though he deposed that deceased Ramshiroman was brother- in- law (sala) of his real brother Ashok and Brajesh (PW-1) is his brother- in-

law (sala). Both these witnesses deposed that they saw and heard incident at about 4 or 4:30 p.m. Both these witnesses deposed that after being

frightened by the incident, they jointly returned back to village Chandupura at 9 p.m. of that day. Brajesh Sharma (PW-1) deposed that on the date

24.4. 1997 he has gone on the scene of occurrence with police and other family members of deceased, then spot map (Ex. P-1) of above mentioned

behad was prepared.

Brajesh Sharma (PW-1) deposed in crossexamination that on 26.4.1997 he had gone at the place of occurrence of incident with police and

thereafter on 27.4.1997 he and Harish Chandra gave their statements to police for the first time, though in para-15 he deposed that on 24.4.1997 after

reaching to village Gaheli, he disclosed about the incident seen and heard by him to Rakesh, elder brother of the deceased, but this fact is missing in his

police statement (Ex. D-2).

Harish Chandra (PW-2) deposed that on thedate of incident he with Brajesh Sharma, was wandering on bicycle in nearby villages for looking

buffalows. Contrary to Brajesh, Harishchandra deposed in para-10 that police inquired him first time on 24.4. 1997 or 25.4. 1997.

Both these witnesses are signatories of spot map of behad (Ex. P-1) prepared on 27.4. 1997, though Brajesh deposed that on 24.4. 1997 he had

gone to behad with police and other family members. Safina form (Ex. P-8) was prepared by head constable Mohd. Khan (PW-16) on 23. 4. 1997

regarding recovery of burnt skull of unknown person from a field of Tej Singh Rathore situated near village Gaheli. Investigating officer Omprakash

Sharma (PW-14) deposed that on 24. 4. 1997 he prepared the spot map (Ex. P-1)of relating behad and on same date prepared a seizure memo (Ex.

P-2) and at that time Brajesh Sharma (PW-1) and Harish Chandra (PW-2) were panch witnesses of seizure memo (Ex. P-2) and on 29.4. 1997 he

recorded statements of Brajesh Sharma, Harish Chandra, Kalawati, Radheshyama, Shivprasad, Ramdas and Ashok Singh and Vidya Ram.

It is clear from the unchallenged testimony of Kalawati (PW-3) that after incident when her husband Vidyaram visited first time at police station,

then it was learnt to her  that her son Ramshiroman has been killed by Haribaba. Her husband Vidya Ram (PW-9) deposed that Ramshiroman was

searched till 6 to 7 days  by them and nothing could be traced out, then on seventh day, he reached to police station, Amayan where a head

constable asked him that where is Ramshiroman, then he replied that his son Ramshiroman had gone to Chandupura or village Baraso, then the head

constable intimated him for the first time that her son Ramshiroman has been killed, then later on same day, he with investigating officer Omprakash

Sharma (PW-12) reached to scene of occurrence nearby village Dhorka, where some burnt bones and ash were recovered and thereafter on his

returning to police station Amayan, inspector shown him a skull, then he rightly identified that skull was of Ramshiroman.

Radheshyam (PW-4) brother of deceased disclosed that for the first time on 24.4. 1997 it was intimated to him by his relative Brajesh (PW-1) and

police that a skull has been recovered in field of village Dhorka, then he had gone with his father (Vidyaram) to police station and he identified the

skull of brother, but till then, it was not informed by anyone to him that how Ramshiroman was killed, but for the first time on 24. 4. 1997, it came to

his knowledge that his brother has been murdered by Haribaba, Ramroop, Ramsiya and some unknown persons, but there are material contradictions

and omissions in his evidence given before the trial court and his police statement (D-4). According to his evidence, on 24. 4. 1997, it was known to

him that his brother was killed by Haribaba and above mentioned persons, but according to marked A to A portion of his police statement (EX. D-4),

for the first time on 26. 4. 1997, Brajesh (PW-1), Harish Chandra (PW-2) came to his house and intimated him for the first time that on 16.4. 1997 his

brother was murdered by Haribaba and other accused persons in their presence. There are material contradictions and omissions  among evidence

all the closed relatives of deceased.

It is clear from admission of Vidya Ram (PW-9), in his cross-examination (para-9), that his son Ramshiroman was regularly visiting dacoit gang

leader Haribaba and his son Ramshiroman was coaccused with Haribaba and some other persons in a murder trial relating to murder of four monks

(sadhu) at Ratangarh Devi's temple. This fact demonstrates that deceased Ramshiroman was a close associate of absconding dacoit gang leader

Haribaba and prior to incident, he was co-accused with Haribaba in another session trial regarding murder of four sadhus at Goddess temple situated

at Ratangarh. It appears to be the real reason why missing report regarding Ramshiroman was not lodged by his family members.

Vidyaram (PW-9) clearly deposed in para-8 that when he first time saw the skull and recovered teeth and identified them to be belonging to his

son. On same day in the evening at 5 or 6 p.m. Brajesh (PW1) and Harish Chandra (PW-2) came to his house and intimated that on the date of

incident 16.4. 1997, nearer to village Dhorka, in a nalah, they heard crying and on same day Ramshiroman was murdered and Harishchandra and

Brajesh disclosed the name of Ramroop as a co-murderer of his son but all these facts are missing in Vidyaram's police statement (Ex. D-9).

Vidyaram's above mentioned evidence is unchallenged by prosecution. Hence, in the light of citation of Kishan and another vs. State of M.P. ( 1995

JLJ 353) his evidence is binding on prosecution. Hence, it is clear that till recovery of the burnt skull, firstly from field of village Dhorka nothing was

disclosed by Brajesh Sharma (PW-1) and Harish Chandra (PW-2) even to their closed relatives regarding incident allegedly seen and heard by them

on 16.4. 1997.

Eye witness account given by Brajesh Sharma (PW-1) and Harish Chandra (PW-2) was totally appearing unnatural and unbelievable in view of

their alleged conduct after the date of incident. Hence, this possibility could not be ruled out that after recovery of burnt skull, both these close

relatives of deceased were introduced as eye witnesses.

Identification of deceased only by looking to his burnt skull and teeth by deceased's father and brother also appear to be unnatural and

unbelievable, because it is not possible for anyone to identify the deceased by looking skeleton of burnt skull or burnt denture

It was not proved beyond reasonable doubt that the recovered burnt bones and skull and some other parts of the human body were of

Ramshiroman. The alleged identification was totally doubtful as clothes worn by deceased and most of the organs and flesh of dead body had burnt.

We are of the considered opinion that the trial court has minutely analysed and appreciated the entire evidence available on record and no finding

of trial court is appearing, prima facie, perverse.

It was established by the evidence of Dr. K.P. Rajoria (DW-1) and Ex. D-2 and Ex. D-11 and his certificate (D-14) and evidence of respondent as

Ex. D-3 that Ramroop remained hospitalized in Government Hospital, Mehgaon from 15.4. 1997 to 20.4. 1997 and he was shown discharged at 11

a.m. on 20.4. 1997. It is well settled that the scope of interference in the appeal challenging acquittal of accused is much limited in absence of any

perversity. It is clear that this appeal filed by State against acquittal of respondent Ramroop is devoid of any substance. It would be significant to

mention here that separately tried co-accused persons Rinku and Ramsiya of same session trial were also acquitted by judgment dated 14.8. 2003

passed by Third Additional Sessions Judge, Bhind.

Consequently, the appeal filed by appellant/State u/s. 378 of the Cr.P.C against acquittal of present respondent Ramroop is dismissed and

impugned judgment of trial court regarding respondent is affirmed. Respondent is on bail. His bail bonds are discharged and in future he need not to

appear before Registry of this court in connection to this appeal.

With a copy of this judgment, the record of the trial court be sent back immediately.