State of U.P. vs Ramesh and Another

M.C. Jain, J.—Two Respondents Ramesh and his son Suresh together with one Lakshi alias Lakshman (also son of Ramesh) were tried before the learned trial Judge for the murder of one Sohan Lal. All the three were acquitted by the impugned judgment dated 30.9.1988, passed by Sri Prakash Chandra, the then Special Judge, Mathura. The State has come up in appeal against two of them Ramesh and his son Suresh.

The incident allegedly took place on 22.11.1986 at about 7.45 p.m. near the chak of one Jayanti situated in village Naya Bas, P.S. Raya, District Mathura. The report was lodged by deceased''s son Hari Gopal P.W. 1, the same night at 8.40 p.m. The parties were residents of the same village and the relations of the deceased with the accused Lakshi alias Lakshman were alleged to be strained. On the fateful day and time the deceased Sohan Lal after closing his shop situated at tri-junction (tiraha) of Kumha on Hathras Road was returning to his home. When he reached near the chak of one Jayanti at about 7.45 p.m. in village Naya Bas, he was surrounded by the three abovenamed accused and two others. Ramesh was armed with an axe,. Suresh and Lakshman each had pharsa and the two unknown others were armed with country-made pistols. The axe and pharsa bearing assailants assaulted Sohan Lal by their respective weapons causing injuries on various parts of his body. He raised alarm which attracted Hari Gopal P.W. 1, Bhik Chand P.W. 2 and Suresh Chand son of Kali Charan P.W. 3 who were working at that time in their fields and few others. Unknown culprits armed with country-made pistols fired shots towards Hari Gopal and others to scare them away. The assailants then made their escape good. Hari Gopal P.W. 1 then arranged a cot and took his injured father Sohan Lal to the police station accompanied by Bhik Chand P.W. 2, Suresh Chand P.W. 3 and others. The F.I.R. was got written by him in the way. On the lodging of the F.I.R., a case was registered. However, the victim died before any medical aid could be given to him and was declared as ''brought dead'' in hospital where he was taken from the police station. The investigation was conducted by Gautam Singh P.W. 7 who also professed to have recorded his dying declaration before sending him for medical examination and treatment.

Apart from formal witnesses, the eye-witnesses were Hari Gopal P.W. 1, Bhik Chand P.W. 2 and Suresh Chand P.W. 3. Post mortem was conducted over the dead body of the deceased by Dr. P. P. Pathak, P.W. 4 on 24.11.1986 at 2.45 p.m. The prosecution evidence did not commend itself to the learned trial Judge who recorded acquittal.

All the accused denied to have committed any offence and ascribed their false implication due to enmity. Accused, Respondent Suresh was a constable and also took the plea of alibi that on the date and time of the alleged occurrence he was present at the residence of one Bangali Singh, M.L.A. from Sasani Constituency of Aligarh in village Ladpur within police station Hathras Junction in connection with his security duties. Certain defence witnesses were also examined in support of the plea of alibi.

We have heard Sri S. K. Paul, learned A.G.A. and Sri A. B. L. Gaur learned Counsel for the complainant in support of the appeal. Sri Rajul Bhargava has been heard from the side of Respondents in opposition. We have also carefully gone through the record of the case which has been summoned before us.

We are of the firm opinion that there are two most formidable reasons which justify the finding of acquittal. The prosecution relied upon two types of evidence in support of its case. The first was the so called dying declaration of the deceased recorded by the Investigating Officer at the police station before he was sent for medical examination and treatment after lodging of the F.I.R. by his son. Indeed, it is of great importance to find out as to whether the deceased was in fit mental state and was capable to make the dying declaration. It would be profitable to relate below the ante-mortem injuries found on his person at the time of his post-mortem which are as under:

(1) Incised wound 4 cm. ? 1 cm. ? muscle deep on medial side of left lower leg obliquely placed.

(2) Incised wound of size 9 cm. ? 5 cm. ? bone deep on left leg. upper part of bone cut underneath.

(3) Abrasion 2 cm. ? 1 cm. on the back of left side chest upper part.

(4) Abrasion 1 cm. ? 1 cm. on the left side of chest, 2 cm. below injury No. 3.

(5) Lacerated wound 5 cm. ? 2 cm. ? bone deep on right side (lateral) of right eye-brow.

(6) Incised wound 3 cm. ? 1.5 cm. ? cartilage on the top of nose, bone cut underneath.

(7) Multiple abrasion in an area of 15 cm. ? 3 cm. from top of shoulder to lateral side of middle of chest right side, size 1 cm. ? 1 cm. ? .5 cm.

(8) Multiple abrasion 12 cm. ? 6 cm. on left side of chest and middle of chest, size .2 cm. ? 1 cm. ? 1 cm.

(9) Traumatic swelling 8 cm. ? 8 cm. ? 1 cm. on the back of right fore arm.

(10) Two abrasions in an area of 6 cm. ? 1 cm. on the lateral side, right side of chest, size 1 cm. ? 1 cm.

On internal examination, right temporal bone was found fractured. There was also fracture of rib Nos. 3 to 6 of right side and rib Nos. 3 to 7 of left side. Both the right and left lungs had also been found lacerated. The cause of death was shock and haemorrhage resulting from the injuries sustained by the deceased.

We note that Dr. P. P. Pathak P.W. 4 stated in categorical terms that the ribs of both sides of the victim having been fractured, it was very natural for anyone to feel difficulty in breathing after such fractures. We have noted that the temporal bone of right side had also been fractured and both the lungs were lacerated. In reply to a question put to him, Dr. P. P. Pathak P.W. 4 stated that it was not possible for the deceased to have spoken after about an hour of suffering the injuries as were found on his person because of profuse bleeding. The deceased was a man of average built and was aged about 50 years. Gautam Singh P.W. 7 stated that he had recorded dying declaration of the victim at about 9.05 p.m. The incident having taken place on 12.11.1986 at about 7.45 p.m., it sounds to be most improbable that he would have been in a position to speak and give the dying declaration as is ascribed to him by the Investigating Officer, supporting the prosecution case. Hari Gopal P.W. 1 also stated that the condition of his father was very serious when he had reached the police station and that he was unable to sit. It has further been testified by him that blood was oozing out very slowly at the police station because he had bled profusely at the place of occurrence itself. Bhik Chand P.W. 2 also stated in his cross-examination that most of the blood had poured out at the place of occurrence itself and it was dripping only drop by drop at the police station. Suresh Chand P.W. 3 stated that the victim had bled profusely at the place of occurrence and blood had spread in the surrounding diameter of one yard. On appreciation of statements of so called eye-witnesses and also the Doctor and on consideration of the injuries sustained by the deceased, we are of the view that the speech and thinking of the deceased must have necessarily been affected and he must have been unable to talk at the time when the dying declaration is said to have been recorded. Having sustained the injuries as reproduced above and bled profusely, he could neither be in a position to speak nor in a fit mental state at the time when his dying declaration is professed to have been recorded by Gautam Singh P.W. 7. Further, we note from the statement of Bhik Chand P.W. 2 who claims to have been present throughout from the inception of the incident till the morning of 23rd November, 1986, that in his presence only F.I.R. and Chitthi Majrubi had been prepared and no other document had been prepared. He unequivocally stated that the Investigating Officer had not recorded anything in his presence. Therefore, on a careful scrutiny, no reliance can be placed on the so-called dying declaration of the deceased. It appears that in order to give a boosting to the prosecution case, the Investigating Officer concocted the drama of recording the dying declaration of the deceased.

In the second place, another insurmountable reason justifying the acquittal is marked and apparent conflict between the ocular version and the medical evidence. We should point out that in the F.I.R. it was stated that axe and pharsa wielding assailants assaulted the victim therewith and that the incident had taken place near the chak of Jayanti. At the stage of adducing evidence in the Court, improvement was made by the eye-witnesses that the assailants had first surrounded the deceased near the chak of Jayanti and thereafter they dragged him to the chak of Bangali. It was at a distance of 90 paces from the chak of Jayanti. Hari Gopal P.W. 1 stated that the accused involved themselves in the process of dragging. In such process, Suresh and Laksho alias Lakshman each had caught one leg of the deceased in their hands. Nothing of this kind of dragging part is to be found in the F.I.R. which is the first version of the prosecution. Probably, it was also an improvement induced at the stage of adducing evidence in the Court because no blood had been found near the chak of Jayanti. Rather blood had been found near the chak of Bangali. Further, as would be noted from the details of ante-mortem injuries sustained by the deceased reproduced above, certain injuries of blunt weapon had also been found on his person and, therefore, it became inevitable for the prosecution to introduce the theory of dragging. Another element of falsity was seemingly brought in during the course of adducing evidence that axe and pharsa had been wielded on the victim from the blunt side too. Obviously, it was done with a purpose to further explain the blunt weapon injuries found on the person of the deceased. Axe and pharsa are heavy sharp edged and cutting weapons and a weapon would usually be put to its normal use. It does not stand to reason that axe and pharsa would have been used by the Appellants by blunt side too. Ante-mortem injury No. 5 sustained by the deceased was a lacerated wound 5 cm. ? 2 cm. ? bone deep on right and lateral side of right eyebrow. On internal examination, right temporal bone beneath this injury was found fractured and it could, therefore, be caused by a forceful blow of a blunt object. Further, ante-mortem injury No. 8 was multiple abrasion in an area of 15 cm. ? 3 cm. from top of shoulder to lateral side of middle of chest-right side. Injury No. 8 was multiple abrasions in an area of 12 cm. ? 6 cm. on left side and middle of chest. Further, 3rd to 7th ribs of left side and 3rd to 6th ribs of right side were found fractured. Indeed, they could not have been fractured as a result of dragging of the victim by the Appellants his face being upward. What we wish to emphasise is that these injuries were the blunt weapon injuries which remained wholly unexplained. It was an unsuccessful and futile attempt on the part of the prosecution to have asserted during the course of adducing evidence to explain them as being the result of axe and pharsa having been used from blunt side too. The conflict between the medical examination and ocular version was so pronounced that it shook the very foundation of the prosecution case, clearly falsifying the ocular version.

There were other incongruities too that two unknown assailants were allegedly armed with country-made pistols but only used the same by firing to scare away the witnesses. There were sharp edged weapons which could be put to their maximum use to accomplish the job but they were allegedly used from their blunt side also and blunt object injuries out-numbered the sharp edged weapon injuries which were only three. The element of enmity existing from before was also there. It may also be stated as a passing reference that no money on the person of the deceased was found. The deceased was allegedly returning after closing his shop and the statement of Hari Gopal P.W. 1 is there that he used to return from the shop with money. As such, the possibility cannot be ruled out that while returning from his shop after closing it, the victim was waylaid by unknown persons and was assaulted. But to wreak vengeance or owing to suspicion because of earlier background of enmity, a false case was spun against the Respondents and Lakshman by the deceased''s son with the aid of his acquaintances who could stand by his side in the hour of his need.

Anyway, to come to a close, for the reasons dealt with above the finding of guilt could not be recorded. The learned trial court made proper appraisal of the evidence to come to a correct finding.

We see no merit in this appeal and we hereby dismiss it.