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PETITIONER: SURENDRA PRATAP CHAUHAN

       Vs.

RESPONDENT: RAM NAIK & ORS.

DATE OF JUDGMENT:       13/11/2000

BENCH: R.C. Lahoti, & Shivaraj V. Patil.

JUDGMENT:

R.C. Lahoti, J.

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   Ram Naik, Lalta and Kanta, the three accused-respondents who  are  real brothers were convicted under Section  302/34 IPC  and  sentenced to imprisonment for life by  the  Second Additional  Sessions  Judge,  Jaunpur   by  judgment   dated 17.2.1979.  A Division Bench of the Allahabad High Court, by its judgment dated 3.5.1991, allowed the appeal preferred by the  accused-respondents and acquitted them of the  charges. Surendra  Pratap Chauhan, son of the deceased, has preferred this  appeal  by  special  leave under Article  136  of  the Constitution  laying challenge to the acquittal recorded  by the High Court.

   The  deceased Komal Ram, his father Ram Bharose - who is also  an eye-witness to the incident and who lodged the  FIR also,  Zhamman  (P.W.2)  and  Baijnath  (P.W.5)  -  the  two eye-witnesses  and  the  three  accused-respondent  are  all residents  of  village Saravni Purbi Patti,  P.S.   Kerakal. There  was  a  civil litigation relating to a  land  dispute going on since 1966 between Ram Bharose (P.W.1) - the father of  the deceased Komal Ram and the accused Ram Naik, wherein Ram  Bharose had succeeded in the Trial Court.  Ram Naik had preferred  an  appeal in the year 1976 which was to come  up for  hearing  on  19.5.1978.  Komal Ram, the  deceased,  was looking  after  the litigation on behalf of his father,  Ram Bharose.  On 19.5.1978 also Komal Ram was scheduled to leave for  the  city where the appeal was to be heard.  Komal  Ram was  a primary school teacher by profession.  At a  distance of about 100 yards from the residential house of Ram Bharose is  situated  his agricultural land which has also  a  well. Zhamman(P.W.2)   and  Baijnath(P.W.5)   have  their   houses situated  in  close vicinity of Ram Bharoses house  in  the village.

   According to the prosecution, sugarcane crop was sown in the  agricultural  land  of  Ram   Bharose.   For  two  days preceding  the  date  of  the incident the  crop  was  being irrigated  from the well.  For this reason and it being  the summer  season, Komal Ram used to sleep on a cot by the side of  the well while Ram Bharose, Zhamman and Baijnath used to sleep  at their respective houses in the village but outside the  houses as the villagers do during the summer.  At about 3.30 a.m.  on the night between 17th & 18th May, Ram Bharose

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was  awakened by Komal Rams screams.  He too raised hue and cry  which  attracted  Zhamman and Baijnath.   They  started running  towards the well.  Each one of them had a torch  in his  hand.  They reached near the cot of the deceased  Komal Ram.  Though it was moon-lit, the trio flashed their torches and saw the three accused persons and an unidentified person standing  surrounding Komal Ram.  Accused Ram Naik was armed with  a  gandasa  (a butchers heavy knife,  also  used  for chopping  fodder-grass).   The  other two  accused  and  the unidentified   person  were  empty-   handed.   The   three, excepting Ram Naik, had caught hold of Komal Ram keeping him pressed  on the cot in the lying position while Ram Naik was rasping  Komal  Rams throat with gandasa, i.e.,  using  the gandasa  like  a  saw or file.  The three  accused  and  the fourth  person  -  all took to their heels having  seen  Ram Bharose  and  the two witnesses.  Komal Ram was  found  dead having  sustained a severe cut wound on the neck and another injury on the left hand.  They returned back to the village. One  Shriram Yadav helped Ram Bharose by preparing a written report of the incident which was taken to the police station by  Ram  Bharose  and  on its basis FIR  (Exhibit  P-4)  was recorded  by Sheikh Faikoo, the constable Mohrrir posted  at the  police  station at 6.10.a.m.  An offence under  Section 302   IPC  was  registered   and  the  usual   investigation commenced,  the  details  whereof  are  not  very  material. Autopsy  on  the  dead  body  was  conducted  by  Dr.   R.P. Rastogi.    On  completion  of   investigation   the   three accused-respondents were charge-sheeted.

   On trial, the learned Sessions Judge found the testimony of  Ram  Bharose(P.W.1), Zhamman(P.W.2) and  Baijnath(P.W.5) trustworthy    and   based    conviction    of   the   three accused-respondents  thereon.  The High Court has found  the occular  evidence not worthy of credence and the prosecution story  shaky.   In  the opinion of the High Court it  was  a blind  murder and the accused-respondents have been  falsely implicated on account of long pending litigation between the complainant and the accused persons.

   We  have heard the learned counsel for the appellant and also  the learned counsel for the State.  Having heard their submissions  and  having gone through the statements of  the several  witnesses  as also the other material available  on record  we are of the opinion that the finding of  acquittal as  arrived  at  by  the  High Court is  not  liable  to  be interferred with.

   As  already  stated, strained relationship  between  the three accused-respondents and the complainant Ram Bharose is an admitted fact.  Ram Bharose(P.W.1) has also admitted that Zhamman  and Baijnath, the two eye-witnesses were his  caste fellows.   In the civil litigation, Zhamman and Baijnath had appeared  as his witnesses against Ram Naik.  The litigation had  been  going on for about 12 years prior to the date  of the  incident.   Ram Naik having lost in the first round  of litigation,  had preferred an appeal and was prosecuting the same.   Apparently,  nothing had happened immediately  which could    have    prompted   or     motivated    the    three accused-respondents  to  murder Komal Ram.  If  there  would have  been any such apprehension on the part of the deceased or  the  complainant, the deceased Komal Ram would not  have gone to sleep alone near the well.  At the same time, merely because  the  relations between the accused persons and  the complainant  were  strained  leading  to  groupism  in   the village,  the  testimony of the eye-witnesses is not  to  be

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discarded  though it needs to be scrutinised with caution so as to eliminate the possibility of any false implication.

   According  to Ram Bharose(P.W.1), he was awakened by the shouts  of  Komal Ram.  He got up and ran towards the  well. His  own  cries awakened Zhamman and Baijnath who  also  ran towards  the well.  Each one of the three had a torch in his hands.   The torches were flashed when they had reached near the  deceased.  He saw the accused Lalta holding one arm  of the  deceased  and the unidentified culprit holding  another arm  of the deceased.  According to him the accused Ram Naik was  also  keeping  pressed with his foot one  hand  of  the deceased.   The accused Kanta had caught hold of the face of the  deceased and was keeping it pressed.  According to  Ram Bharose one of the culprits had climbed over the legs of the deceased  though  he was not able to name who he  was.   Ram Bharose  and  the two witnesses had reached near the cot  of the  deceased  almost simultaneously.  Other villagers  also reached there but a little later.  During cross-examination, he  stated,  when he and the witnesses had reached near  the cot,  the accused persons were already running away and were at a distance of about 15 lathas (one latha being about 5 to 6 feet).

   According  to  Zhamman(P.W.2),  he having arose  at  the cries  of Ram Bharose, picked up his torch and followed  Ram Bharose,  who  was running towards the well.  From 10 to  12 paces away from the well he saw the accused Ram Naik rasping the throat of Komal Ram with gandasa and three other persons including  Lalta  and  Kanta, accused keeping  the  deceased Komal Ram pressed on the cot.  He had not heard the voice of the  deceased  Komal  Ram  but had heard the  cries  of  Ram Bharose  only.   None had lighted the torches while  running towards  the well as moon-light had created some visibility. The two witnesses ran after Ram Bharose and had reached near the cot of the deceased.  He stated to have seen the accused Ram Naik rasping Komal Rams throat.

   Baijnath(P.W.5)  states  to  have been awakened  by  the cries of Ram Bharose and Komal Ram.  He also ran towards the well  with  a torch in his hands.  He could see  nothing  so long  as he was running towards the well.  He did not  light his  torch on the way.  According to him neither he nor  Ram Bharose nor Zhamman lighted any torch as it was not required on  account of twilight visibility being available.  He  saw the  deceased  Komal Ram lying on the cot, Kanta  and  Lalta accused  and  an unidentified person gripping  the  deceased keeping  him  pressed on the cot while Ram Naik was  cutting Komals throat with gandasa.

   Dr.   R.P.   Rastogi  who   conducted  the   post-mortem examination of deceased Komal Ram at 3.45 p.m.  on 18.5.1978 found  an incised wound 22 cm x 3½ cm x ½ cm on the neck  of the  deceased.   The neck was joined with skin on  the  back side  and right side.  The incised wound was behind the neck going to the right from the left, about 5 cm below the right ear.   The thyroid cartilage was cut parallel to chin on the level  of  4th vertebra of the neck.  The bone was  entirely cut.   The borders of the wound were clean cut and  multiple tags  of  skin were present.  There was yet another  incised wound  17 cm x 3 ¼ cm x bone deep extending from behind         the forearm  to  the back of the palm of the left  hand  between little  and ring fingers.  The 4th metacarpal bone and  left radius  bone were cut.  The borders of the wound were  clean cut.   The cause of the death was shock and haemorrhage  due

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to  the  neck  injury.  The death was likely to  have  taken place  at  3.30  a.m.   The injury  was  sufficient  in  the ordinary course of nature to cause death.  Both the injuries could  have  been caused by a weapon like  gandasa.   During cross-examination,  Dr.  Rastogi stated that the neck injury seemed  to  have  resulted not by one blow  but  by  several blows.   He stated that if a sharp weapon was rasped at  one place  then  tags would not be left at the rasped place  and the  wound  would  be  clean  cut.  In  answer  to  a  Court question, Dr.  Rastogi stated that if the neck be cut by one blow  then  due to the force of the same becoming  light  on being inflicted the upper surface would be clean cut and the tags would remain at the other end.

       The weapon of the offence was not recovered.

   The  nature  of the injury on the neck, as described  by Dr.  Rastogi, renderes it highly probable that heavy blow or blows,  one  or two, were dealt with by sharp cutting  heavy weapon, may be a gandasa, resulting into instantaneous death of  the  deceased.   By  the same or a  similar  weapon  the deceased  sustained an injury on the hand also.  The medical evidence  does  not suggest the neck of the deceased  having been  rasped,  i.e.,  by  using like a saw,  a  weapon  like gandasa.

   The  story  as  narrated  by Ram  Bharose,  Zhamman  and Baijnath  does  not fit in with the medical  evidence.   The three  witnesses  state  Ram Naik rasping the  neck  of  the deceased  while  two co-accused and one unidentified  person were  leaning  over the victim catching hold of or  pressing the  hands,  legs  and face of the deceased.  The  story  of rasping  the  neck  appears to have been introduced  by  the witnesses  with  dual  purpose.  Firstly, rasping  the  neck would  take  time and enable the witnesses to  identify  the assailants.   Secondly,  the act of rasping the  neck  would certainly  be  resisted by the victim who would  not  remain stationary   and  therefore  the   two  co-accused  and   an unidentified  person can be introduced in the  incriminating story  playing  the part of holding the victim tied  to  the cot.   None  of  the  witnesses   explains  how  the  victim sustained  the  injury on the hand.  Each one of  the  three eye-witnesses  states  to  be sleeping with a torch  by  his side.   Each of the witnesses brought his torch in the Court on  the date of his examination and showed the torch to  the Court.   Each of the torches is a three-cell torch, i.e.,  a powerful  one.   Ordinarily,  people in the village  do  not sleep  accompanied by torches unless it is customary in  the village  to do so!  There is contradiction in the  testimony of Ram Bharose and Baijnath whether the torches were lighted or  not.   Ram  Bharose and Zhamman have  contradicted  each other  on  the  point at which the torches were  flashed  __ while  running  towards the well or when the  witnesses  had reached near the cot of the deceased.  It was just moonlight even if the moon was there in the sky.  If the witnesses had torches  in  their hands and they were running  towards  the well  on the village path or through the fields the  natural impulse would be to flash the torches so as to make the path visible  and also to attempt to have a view of the place  of the  incident  wherefrom  the cries had  emanated.   If  the torches  were  lighted,  the assailants would  not  keep  on standing  but would rather take to their heels in which case they  would  not  have been identified.  The High  Court  is right  in observing that the case appears to be one of blind murder  and false implication of the accused persons who are

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three  real brothers so as to avenge the enmity generated by the land dispute.

   Ordinarily,  Ram Bharose would have rushed to the police station  and  narrated the incident orally to the  constable Mohrrir  for  the purpose of recording the FIR.  However,  a written  report  prepared by Shriram Yadav was taken to  the police  station.   It is surprising that the written  report carried  by Ram Bharose and delivered at the police  station has  not  been exhibited.  Shriram Yadav, the scribe of  the report,  has  also not been examined.  According  to  Shiekh Faikoo(P.W.6)  there was only one FIR, the one in  question, lodged at the P.S.  on that day.  The General Diary in which the  FIR was recorded was thus open and so available for the whole  day.   No record has been produced to show  when  the copy  of  the  FIR  was   despatched  to  the   jurisdiction Magistrate  in  compliance with S.157 Cr.P.C..  We  are  not recording  any  finding  that the FIR in the case  was  made belatedly  and then ante-timed;  we are only pointing out at a  few  likely holes left unplucked by the  prosecution  and hence perceptible in the facts and circumstances of the case at hand.

   The  High  Court  has on an evaluation of  the  evidence found  the  ocular evidence untrustworthy and discarded  the prosecution  version of the incident in so far as it relates to the accused-respondents.  We too are not inclined to take a different view.  The unnaturality of the story attributing collective role to four assailants apparently with a view to embroil  as many, higher probability of the assailants being not  available  by the side of victim  improbablising  their identification,  more  likelihood  of the incident  being  a hit-and-run crime as reflected by medical testimony, coupled with  other infirmities in the prosecution case evaluated in the light of strained relations between the parties anterior to  the  incident  persuade  us not to  interfere  with  the finding  recorded  by the High Court.  The acquittal of  the accused-respondents has to be sustained.

   The appeal is dismissed.  The judgment of the High Court acquitting  the  accused-respondents  is  maintained.    The accused-  respondents  are  on  bail.  The  bail  bonds  are discharged.