JUDGMENT
V.P. Mathur, J.
1. This appeal is directed against the judgment and order passed by Sri Ramji Lal, the then 1st Additional Sessions Judge, Etah on 8-5-1978 in Sessions Trial No. 833 of 1976. All the appellants were convicted under Sections 148, 364, 307/149, 302/ 149 and 201/149, I.P.C. Under Section 148, I.P.C. each one of them was awarded 2 years’ rigorous imprisonment. Under Section 201/149, I.P.C. each one of them was sentenced to five years’ rigorous imprisonment, under Section 364, I.P.C. and under Section 302/149, I.P.C. each one of them was awarded imprisonment for life and to each one of them seven years rigorous imprisonment was awarded under Section 307/ 149, I.P.C. All the sentences were made concurrent.
2. During the pendency of the present appeal Pati Ram appellant, resident of Dulhapur, Police Station Ooncha. District Mainpuri, was killed in an encounter on 31-1-81 and by the order dated 19-9-1988 his appeal abated. It now proceeds on behalf of the remaining four persons. Rajvir appellant belongs to village Antpur, Police Station Ooncha, District Mainpuri, Ram Sewak and Ram Prakash appellants belong to village Dattapur, Police Station Sakeet, District Etah. Ram Prakash is said to be armed with a gun while the remaining appellants were possessed of country made pistols. The occurrence took place in village Dattapur within . the area of police station Sakeet, District Etah on 11-2-76 at 8.00 p.m. and the first information report was lodged by Ram Prakash alias Prakash son of Narottam (P.W. 2) at 1 p.m. on 12-2-76 at Police Station Sakeet, the distance of the’ police station being 7 miles from the place of occurrence.
3. According to the First Information Report Ram Prakash alias Prakash, (hereinafter, referred to as ‘Prakash’) was sitting at his grocery shop when at about 8.00 p.m. the four appellants of this case along with three others passed from in front of his shop forcibly taking Smt. Phoolwati alias Phool Shri, wife of Meghnath Yadav of Dattapur, a lady of bad repute. She was crying. When these persons passed from in front of the shop of Prakash, he inquired as to what was the matter and who she was being taken away forcibly. Upon this the appellant No. 4 Ram Prakash who also belongs to village Dattapur fired with his gun at Prakash. The pellets hit Prakash on his arm. He took shelter behind the planks of door of his gate. The remaining three appellants also then fired at him with their country made pistols. The pellets hit planks of door of the shop as well as the wall. The cries of the woman and sound of the firing attracted at the scene of occurrence some persons of the locality, namely Rampal Singh, Sultan Singh, Kedar Singh and Mahobey. The culprits, however, all went away with the woman. Because Prakash was afraid to go to Thana in the, night, therefore, he waited for the morning. On account of the injury that he had sustained, he was not in a position to go on foot and, therefore, he made arrangement of a bullock cart and all this took time. Then from Rampal Singh (P. W. 3) he got the F.I.R. of the occurrence scribed and with it he went to the Thana where he lodged it at 1.00 p,m. on 12-2-76. Since he was injured, he had to be sent for medical examination but before that, in view of the fact that he was wanted in a dacoity case, he was arrested at the Thana. Then he was sent for medical examination. He was medically examined on 12-2-76 at 4.30 p.m. in the Primary Health Centre at Sakeet by Dr. J. S. Rao (P.W.6). The following injury was found on his person.
4. Fire arm wound, covering the front of the left arm up to an area of 41/2″ from the left elbow joint and over the side of the arm. Numerous small fire arm wounds, some of which were fused together with entrance on front side were also found. On probing blood came out. The arm was swollen. There was no blackening, scorching and tattooing wound and no pellets were found. In the opinion of the Doctor, the injury was caused by some fire arm and was simple. It was hours old. The case was referred to District Hospital for X-ray and treatment and the distance of the firing was of more than 6 feet.
5. On the basis of the F.I.R. a search for the missing lady was made as well as for the accused-appellants. They were, however, not found. Mr. S. P. Singh (P. W. 4) who was Sub Inspector in police station Sakeet was present when the first information report Ext. Ka5 was lodged. He interrogated the witness Sultan Singh in the Thana since he had gone along with the first informant. Because the Sub Inspector was busy with some urgent work, he could reach the spot only on 15-2-76 and there he interrogated Rampal Singh, inspected the scene of occurrence, prepared the site plan Ext. Ka7 and other-papers. He found blood lying near the door of the shop of the first informant. It was taken into custody vide memo Ext. Ka8 and the two tins Exts. 2 and 3. In the southern side of the planked door he found marks of pellets. Ram Prakash and Ram Sewak, the two appellants, were absconding, proceedings under Sections 82 and 83, Cr. P.C. were taken vide Exts. Ka 9 to Ka 14. Attachment of their properties was made on 8-5-76 and thereafter they all surrendered. They both surrendered on 28-6-76. Others surrendered afterwards. The investigation was taken over from Sri S. P. Singh by Sri Ram Saran Singh, the then Station Officer, Sakeet, and on his transfer it came to Sri C. L. Pathak, Sub-Inspector, who also interrogated some more witnesses and then submitted charge sheet on 29-6-76.
6. P.W.I Mr. R. D. Dixit was Station Officer of Police Station Ooncha in the year 1976. He was in the village in connection with some investigation. Then on 18-2-76 a constable brought to him some papers in village Dauli Kheria, which is quite close to village Dattapur. In the field of one Atar Singh a dead body had been seen. This information went to Mr. Dixit who was in the village at 8.00 p.m. he could not proceed at once and reached the spot next day on 19-2-76 at about 8.00 a.m. He found a dead body with the head completely severed and lying elsewhere, half buried from waist below under the ground. Upper portion of the body was unidentifiable because the flesh had been eaten away by animals. Even the flesh of the head was completely missing but the hair were present and a ribbon was tied in them. The lower portion of the body was clad in a Dhoti (Ext. 1) and a Petti coat and in the toes of the foot she was putting on Bicchuas. The witnesses Babu Ram, Raghubir and Ram Kishore recognized the dead body as that of Smt. Phoolwati wife of Meghnath of Dattapur. Inquest memo Ext. Ka 9 was prepared and the dead body was sent with the village Chaukidar Masi Charan for postmortem examination. Dattapur, according to this witness, is at a distance of about 5 or 6 miles from police station Ooncha.
7. Jaswant Singh (P.W. 8) was present when the inquest memo was prepared. He also identified the dead body as that of Smt. Phool Shri alias Phoolwati. The basis of the identification was Dhoti Ext. 1 which the dead body was wearing at the time of recovery. Jaswant Singh belongs to village Dauli Kheria where the dead body was recovered. According to him, he had seen Phoolwati putting on the same Dhoti a number of times. She was known to him because he was visiting village Dattapur occasionally and also because he met her a number of times in connection with a litigation in Tehsil. She was a woman of 35 to 40 years of age. According to this witness, Babu Ram and Ram Kishore also identified the dead body. He is also a witness of Panchayat-nama.
8. Ram Kishore (P.W.7) is the son of Meghnath and the deceased woman. He has, however, turned hostile to the prosecution. He was examined ostensibly to prove the identity of the dead body but he says that his mother is missing since long and that he never identified her dead body in village Dauli Kheria.
9. The post-mortem examination on the remanents of the dead body was conducted by Dr. J. D. Sharma of District Hospital, Mainpuri on 20-2-76 at 1.30 p.m. The Doctor found the body to be of a woman of 35 years of age and the time since death was about one week. There was a lot of mud on the dead body which had dried up. The head was separate from the trunk at the level of third cervical vertebra. There were no upper limbs. The right lower limb was bare up to the thigh and the muscles eaten up in calf region. The left was present. The ante mortem injury that the Doctor found was a complete cut of cervical vertebra at the right side at its juncture with found vertebra. On the left side margins were rough. Upper limbs all were missing. The brain was liquefied. There was no scalp or muscles present and only bones were present in the skull. The spinal cord was also absent. In the thorax, right second and third ribs were fractured. The pleuras were missing. The lungs, pericardium and heart were also missing. Lower jaw was completely missing. Small and large intestines were putrified and so also the gall bladder and kidneys. Pancreas and spleen were absent. Death was due to shock as a result of injury to blood vessels of neck and spinal cord.
10. The genuineness of the post-mortem examination report was admitted by the defence and hence Dr. J. D. Sharma was not examined.
11. The prosecution examined in this case 8 witnesses in all and we have made a brief mention about the role played by each of them above.
12. The accused persons denied their guilt. They all pleaded that they had been falsely implicated because of Partibandi and the witnesses were deposing against them because of Ranjish. Only Ram Sewak indicated that he wanted to enter defence but he actually did not examine any witnesses whatsoever.
13. According to Ram Prakash, he was not present on the spot. He was a student in Etah and was not present at his house. In support of this so-called alibi he has not examined any witness. Rajvir Singh’s contention is that the witnesses were deposing against him because of police pressure and he does not know why he has been implicated. He says that he used to teach in village Kharakpur from where he was arrested on 29-4-76 and falsely implicated in this case.
14. No defence evidence has been adduced.
15. It appears from the entire evidence on record, against which even the defence has nothing to say, that Smt. Phool Shri alias Phoolwati, who was wife of Meghnath of village Dattapur and mother of Ram Kishore (P.W. 7) was a woman of ill repute. She was 35 to 40 years of age. There is some suggestion from the defence side that she was somehow connected with a gang of dacoits headed by one Jarman but for this there is no direct evidence on record. This woman is missing and according to the prosecution witnesses about whom we have made mention above and whose evidence we will shortly analyse, she was last seen going in the company of the appellants including Patiram and she was being taken by force from village Dattapur towards north and the lady was crying. All this happened at about 8.00 p.m. on 11-2-76. Since then she was never again seen alive and a dead body was recovered by Mr. R. D. Dixit, Station Officer Ooncha on 19-2-76, on the basis of the information communicated to him, from the field of Atar Singh within the area of village Dauli Kheria. Jaswant Singh (P.W. 8) is a witness of recovery and the inquest memo.
16. The first point for consideration is about the identity of the dead body. According to the post-mortem examination report (Ext. Ka 21), the Doctor took out the following articles from the dead body, sealed them and gave the same to the constable :—
1-2. Woollen socks.
2-1. Dhoti.
3-1. Petticoat.
4-4. Bichhuas.
5-1. Ribbon.
17. This Dhoti has been exhibited as Ext. 1. Jaswant P.W. 8 came to say that the dead body was wearing this Dhoti when it was recovered. He also says that he had seen Phoolwati alias Phool Shri putting on this Dhoti a number of times earlier also. Strangely enough, the defence has not cross-examined this witness on this point at all. Then there is the testimony of Ram Prakash, the first informant, who says that Smt. Phoolwati, when she was taken away by the appellants, was putting on Dhoti Ext. 1, He has also not been cross-examined on this point at all. Rampal Singh, who is also an eye-witness of this occurrence also identified the Dhoti Ext. 1 as the one which Smt. Phoolwati was putting on at the time of the alleged abduction. He also has not been cross-examined on this point. It is true that the husband of Smt. Phoolwati has not been examined in this case. Actually it is really very strange that the police could not get hold of this witness at all. At any time he was not even interrogated, but that would not affect the prosecution case. The son of Smt. Phoolwati, namely Ram Kishore was completely turned hostile, there is the statement of Sri R. D. Dixit Station Officer, Police Station Ooncha, supported by P.W. 8 Jaswant Singh that Ram Kishore was present when the dead body was brought out of the earth from a field in village Dauli Kheria and he identified the dead body as that of his mother. In view of these two statements, the statement of Ram Kishore, who has turned hostile to the prosecution, whatever may be the reason, is not believable. It is therefore, well established that the dead body which was brought out of the earth on 19-2-76 at about 8.00 a.m. at the instance of Shri R. D. Dixit, Station Officer, Ooncha was the dead body of Smt. Phoolwati alias Phool Shri. This fact stands uncontroverted throughout.
18. The prosecution story, in brief, is that the four appellants of this case including Pati Ram since deceased forcibly took this woman from village Dattapur towards north in the night between 10th and 11th Feb. 1976, at about 8.00 p.m. and since then she was missing till her dead body was recovered. The post-mortem examination report fixes the time of the murder of this woman also and the date will be near about 11-2-76. It, therefore, means that this woman was murdered sometime after 11-2-76. Her head was cut and body was buried waist down in the earth while it was wearing Dhoti, Petticoat etc. The upper ‘ portion of the body had been eaten away by the animals.
19. In the background of this, let us consider the testimony of Ram Prakash (P.W. 2) and Ram Pal Singh. Ram Prakash alias Prakash is the first informant. There is nothing on record to show that he had any enmity with any of the appellants including Patiram. He did receive injury which could relate back to about 8.00 p.m. on 11-2-76, according to the medical evidence, and this injury was in the nature of a gun shot wound on his arm. The testimony of Dr. J. S. Rao is to the effect that the pellets were embedded in the arm but they were not palpable and they had not gone through and through and the injury was directed from front to back. This supports the testimony of Ram Prakash and Rampal Singh who say that when the culprits passed from in front of the shop of Ram Prakash with Smt. Phool Shri being forcibly taken away by them, and Ram Prakash just made inquiry as to where they were taking her away, appellant No. 4 Ram Prakash of Dattapur who was armed with a gun fired the first shot at him and the pellets hit in his left arm. Simultaneously shots were fired on him by other appellants including Pati Ram who were armed with country made pistols. The Investigation Officer who visited the scene of occurrence on 15-2-76 found blood lying in front of the shop of the first informant and he also found marks of grazing by pellets on the door leaves of the shop. On this aspect of the matter again no cross-examination has been made to the witnesses.
20. Rampal Singh (P.W. 3) says that he also belongs to village Dattapur and he was going to purchase Biri from the shop of the first informant. It was about 8.00 p.m. when he was about 25 paces away from the shop he heard cries coming from the north. When he reached near the shop, he saw Phoolwati being forcibly taken by the four appellants. They were coming from south and heading towards north. Phoolwati was crying and calling for help. It was a moonlit night and there were seven culprits in all, out of whom he named four appellants. He also says that appellant No. 4 Ram Prakash was possessed of a gun and remaining three known appellants were possessed of country made pistols while three unknown culprits were armed with lathis. A lighted lantern was present inside the shop of first informant and its light was also coming out. When these persons taking the woman by force, came in front of the shop of Prakash, he just inquired as to; what was the matter and promptly Ram Prakash accused fired at him with his gun. That shot hit him. Then three other appellants also fired towards him and the pellets hit the door and wall. The lady was then taken away towards north. Sultan Singh and Mohabey also came. He also says that Smt. Phoolwati was wearing Dhoti Ext. 1. This witness is a teacher and next morning when he was going to his school, the first informant got the F.I.R. Ext. Ka 4 scribed from him at about 9, a.m. and with it he left for the Thana in a bullock cart. With this witness also there is no enmity alleged and none proved. In our opinion, Ram Prakash (P.W. 2) and Ram Pal Singh are completely independent witnesses and they had no axe to grind nor any reason to falsely implicate the appellants in this case. It is clear that on 11-2-76 the four appellants along with three others forcibly took away Smt. Phoolwati alias Phool Shri towards north and in that process when Ram Prakash tried to intervene he was shot at and hit and because of fear no other neighbours could come out and raise any protest.
21. The first charge against the appellants was under Section 364, I.P.C. and, in our opinion from the entire evidence on record it is well established, Smt. Phoolwati was forcibly taken away from village Dattapur by the appellants and three others, who were all variously armed, in order that she may be murdered. She was ultimately murdered and her dead body was recovered about 4 or 5 miles away within the area of village Dauli Kheria from the field of Atar Singh on 19-2-76 and according to the Doctor, the murder had taken place about a week earlier. The report of the Doctor is dated 20-2-76. Soon after the abduction therefore, this woman was murdered. There is no evidence direct or circumstantial to show that the murder was committed by the appellants but the fact that this woman was murdered and was taken away forcibly and was even crying for help when she was so being taken away, and further the fact that the appellants all were armed with fire arms and their three other associates were armed with lathis and they did not hesitate to fire at Prakash when he tried to inquire, undoubtedly show that the intention was to commit murder of this woman. In our opinion, all the appellants are proved to be guilty under Section 364, I.P.C. and their conviction on that charge is completely justified.
22. It is also established beyond doubt that first Ram Prakash and then his three associates Pati Ram, Rajvir Singh and Ram Sewak fired with their fire arms at Prakash (P.W.2) when he tried to intervene with the forcible abduction of Smt. Phool Shri. The firing was, however, resorted to from a distance. This is clear from the fact that the pellets did not go through and through into the arm but remained embedded in it and further from the fact that there was dispersal and absence of blackening, tattooing and scorching. It is also clear that the culprits did not stop in front of the shop of Prakash when he made inquiry from them. They continued to move with the woman and in passing fired shots towards Prakash. Their intention could not be to murder. Therefore, Section 307, I.P.C. would not be applicable to this case. Each one of them will not be guilty on that charge. In its place they are held to be guilty under Section 324, I.P.C. read with Section 149, I.P.C. because the injury sustained by the first informant was simple caused by a dangerous weapon like a fire arm.
23. Undoubtedly the appellants formed an unlawful assembly with the object of abducting Smt. Ram Shri (Phool Shri?) with an intention to have her murdered. They will, therefore, be guilty under Section 148, I.P.C. as each one of them was armed with a fire arm which, they used while abducting the lady. Their conviction, therefore, on that charge is perfectly justified. We are, therefore, of the opinion that the appeal should be allowed only in part and the conviction and sentences of the appellants under Section 302/149, I.P.C. should be set aside completely and so also the conviction and sentence under Section 201/149, I.P.C. while the conviction under Section 307/149 and the sentence of seven years’ rigorous imprisonment should be altered to one under Section 324/149, I.P.C. and to a sentence of three years’ rigorous imprisonment to each. In all other respect the appellants got to be dismissed.
24. So far as the charge under Section 201/149, I.P.C. is concerned, it is not clearly known what the appellants did after taking this woman away ostensibly for committing her murder. May be that they handed her over to other persons for the purpose of carrying out her murder. There is no evidence to show that they were responsible for the destruction of the dead body or for its burying waist down. Under these circumstances the offence under Section 201/149, I.P.C. against them is not made, out.
25. The appeal is allowed in part. The conviction of the appellants under Section 148, I.P.C. and their sentence of two years’ rigorous imprisonment awarded to each of them is upheld. The conviction of each appellant under Section 364, I.P.C. and the sentence of imprisonment for life is also upheld. They are all convicted under Section 324/149, I.P.C. and sentenced to three years’ rigorous imprisonment, each. All these sentences shall be concurrent. Their conviction and sentences under Sections 302/149 and 201/149, I.P.C. are set aside. The appellants are on bail. They shall surrender forthwith and be taken into custody to serve out their sentences.