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Court No. 44
Criminal Appeal No. 3076 of 1981
1. Mithai Lal
2. Ram Lal
3. Kanahaiya
4. Nakchhed ...... Appellants
versus
State of U.P. ...... Respondent
Hon'ble Yatindra Singh, J.
Hon’ble B.N. Shukla, J.
1. This criminal appeal is against the conviction and sentence dated
26.11.1981 in ST No. 62 of 1977 (District Basti).
THE FACTS
2. The relevant pedigree (for this case) of victim side is as follows:
l
Medai
l
Nanhu
(Informant) Jagdev
l l l l
Ganeshi=Balwanta Behari Nadlu Gejai
(killed) (killed)
I
l l l l
Bulla Tilak Ram Shriram Shyam Sunder
(injured)
l l l l
Sheshram Hiraram Sitaram Budhuram
Out of these, Behari and Badlu were issueless.
3. In the night intervening 16/17 of June 1973, at about mid-night:
• Behari son of Jagdev and Balwanta wife of Ganeshi were killed; and
• Bulla daughter of Ganeshi was injured.
4. Nanhu (the Informant) lodged the FIR (Case Crime No. 432) on the next
day at about 7.30am. under Sections 147/148/149/307/302 IPC, Police
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Station Kotwali, District Basti with the following allegations that:
• The Informant’s house is in the middle of the jungle and there is no
Abadi within 1½ miles of his house. Due to this, some persons stay
there for safety;
• On the fateful night, Ismail and Ram Shanker were staying in his
house;
• His cousin Behari, Balwanta wife of Ganeshi and Bulla daughter of
Ganeshi were also in the house;
• In the mid-night, six accused Mithai Lal, Brij Lal, Kanhaiya, Ram Lal
all sons of Ram Achal, Nakchhed son of Ram Raksha and Jagmurat
son of Ganga Ram came armed with Pharsa.
• They injured Bulla; killed Behari and Balwanta;
• The Informant, Ismail and Ram Shanker had woken up due to
disturbances and saw the incident in the light of the lantern and
torch.
5. The Police investigated the case and submitted the charge-sheet against
the five accused. Jagmurat was absconding at that time and no charge-
sheet was filed against him. The case was committed to the court of
sessions and was numbered as S.T.No. 62 of 1977.
6. The IVth Additional Sessions Judge, Basti (the ASJ) framed charges
against the accused on 9.6.1978 under sections 307, 302 read with section
149 and 148 IPC.
7. At the time of framing of the charge, Brij Lal also died. Therefore, only
four accused were tried.
8. Among the other documents, the prosecution filed the following
documents:
• Recovery memo of blood stained and plain earth dated 17.6.1973
(Ex Ka-10 and Ka-11);
• Recovery memo of blood stained Kathari and Bandh dated
17.6.1973 (Ex Ka-12);
• Recovery memo of blood stained clothes dated 17.6.1973 (Ex. Ka-
13);
• Injury report of Bulla dated 17.6.1973 (Ex Ka-4);
• Post-mortem report of Behari dated 18.6.1973 (Ex Ka-2);
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• Post-mortem report of Balwanta dated 18.6.1973 (Ex Ka-3);
• Statement of Ismail dated 16.11.1981 (Ex Ka-14);
• Statement of Ram Shanker dated 16.11.1981 (Ex Ka-15);
• Statement of Bulla dated 16.11.1981 (Ex Ka-16).
9. The prosecution also examined the following witnesses:
• Nanhu (PW-1): Eyewitness, has lodged the FIR;
• Ismail (PW-2): Eyewitness;
• Bulla (PW-3): Injured eyewitness;
• Ram Shanker (PW-4): Eyewitness;
• Dr. U.R.Gupta (PW-5): Doctor, conducted the post-mortem of the
dead bodies;
• Onkar Nath Shukla (PW-6): Record-Keeper of the hospital;
• Dr. S.C. Chaturvedi (PW-7): Doctor, examined injured Bulla;
• Chandra Bhushan Tripathi (PW-8): Investigating Officer.
10. The ASJ convicted the accused on 26.11.1981 and has awarded the
following sentences to them:
• One year RI under section 148 IPC;
• Seven years RI under sections 307 read with section 149 IPC; and
• Life imprisonment under section 302 read with section 149 IPC.
Hence the present appeal.
11. This appeal was filed by the four Appellants. Out of these, three
Appellants are dead. The appeal on behalf of Appellant no. 1 Mithai Lal
and Appellant no. 3 Kanahaiya was abated on 2.9.2004. The office has
given report on 7.4.2007 that a Fax message has been received from the
Chief Judicial Magistrate that Appellant no. 4 Nakchhed is also dead. His
appeal is also abated.
12. We have heard Sri Pradeep Misra, Advocate, holding brief of Sri Vinay
Saran for Appellant no. 2 and learned the AGA for the State.
13. There was a statement at the Bar that:
• The sixth accused Jagmurat was also arrested;
• He was separately tried in ST No. 62-A of 1977; and
• He has been acquitted.
However, there is nothing on the record to substantiate it.
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THE DECISION
14. The site-plan was not produced before the Court. The Investigating
Officer (PW-8) has deposed that he had prepared the site-plan but as it
was not on the record, it was not filed in the case. From a reading of the
oral evidence, it appears that:
• Balwanta and Bulla were sleeping on a cot outside on the northern
side of the house;
• Behari was sleeping after some paces further north and then
thereafter was a well;
• The Informant and his two helpers (Ismail and Ram Shanker) were
sleeping 3-4 paces east of Behari.
15. Ismail (PW-1) and Ram Shanker (PW-4) were also on the spot. They
are eyewitnesses. They have deposed about the incident but could not
recognise the assailants who had committed the crime.
16. Bulla is the most important witness. She is not only an eyewitness but is
also an injured witness. She must have seen all the accused. It is sad
incident for her: not only was she injured but her mother and uncle were
killed in the incident. She was youngest of all eyewitnesses and had best
eyesight. Yet, she has also deposed that she did not recognise the
assailants. This leaves only the deposition of the Informant (PW-1).
17. The Informant (PW-1) has deposed that:
• He was about 76-77 years old at the time of the incident (Paragraph
14 of the cross-examination);
• The moon had already set (paragraph-12 of his cross-examination);
and
• The only source of light was the lantern and the torch;
• The Informant and helpers hid themselves in a bush and saw the
incident.
18. The Informant was an old man. Eyesight becomes weak at that age.
Let’s consider if there was sufficient light for him to see or not.
19. It is not clear how far was the bush from the place where Behari was
sleeping. It is surprising that he lighted the torch and yet the assailants did
not notice it. Had they noticed it then Informant and his helpers would have
been assaulted too. The assailants always try to remove the eyewitnesses.
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20. According to the FIR version and the deposition of the eyewitnesses,
the incident happened at the time when they were sleeping. Often people
put off their lantern, or in the case, the lantern is kept burning then it dims
as the time passes. There may not be sufficient lantern light.
21. The lantern and torch were not made the case exhibit. According to the
Informant, he had shown them to the Investigating Officer but he returned
them back. It is not clear if the lantern had sufficient light. We are doubtful
if there was sufficient light.
22. The enmity between the parties is admitted (paragraph 3 of the
examination-in-chief of PW-1) and the possibility of involving the accused
cannot be ruled out.
23. Considering the:
• Age and condition of the eyesight of the Informant at the time of the
incident;
• The deposition of other eyewitnesses;
• The condition of light; and
• Possibility of implicating the accused due to enmity;
We are doubtful of the prosecution case and give benefit of doubt to the
appellant.
CONCLUSION
24. In view of above, the appeal is allowed. The appellant is given benefit of
doubt. He is acquitted of the offences charged with. He is already on bail.
His bail bonds are cancelled and sureties are discharged.
Dated: 4.2.2010
SU.