Allahabad High Court High Court

Ram Swaroop vs State Of U.P. on 28 July, 2010

Allahabad High Court
Ram Swaroop vs State Of U.P. on 28 July, 2010
Criminal Appeal No. 436 of 1982                                         Court No. 44
   1. Ram Swaroop
   2. Shri Krishna
   3. Ram Kumar
   4. Suresh.............................................Appellants
                              Vs.
   State of UP...........................................Respondents.


HON'BLE YATINDRA SINGH, J.

HON’BLE SURENDRA SINGH, J.

1. This appeal is against the conviction and sentence dated 10.2.1982 passed by

1st Addl. Sessions Judge, Shahjahanpur (the ASJ) in ST No. 481 of 1981.

THE FACTS

2. An incident happened on 30.5.1981 at 19:00 hours. In this incident, Ram Autar

(the Deceased) was killed. The FIR was lodged by his brother Jang Bahadur (the

Informant). It was registered as case crime no. 59 of 1981 under section 302 IPC,

police station Khutar, district Shahjahanpur.

3. In the FIR, four persons namely Ram Swaroop (Appellant-1), Shri Krishna

(Appellant-2), Ram Kumar (Appellant-3) and Suresh (Appellant-4) were named as

the accused. They are jointly referred as the Accused.

4. The parties are related to each other. The relevant pedigree is mentioned below:

_______________ ______
I I
1st wife= Anokhey Lal = 2nd wife Ram Lal (DW-2)
I _I_______________________________
Bhup Ram I I I I
Laljit Rameshwar Ram Swaroop Shri Krishna
I (PW-5) (A-1) (A-2)
I I
__I____________ I
I I I
Rajesh Kumari = Jang Bahadur Ram Autar I
(PW-2) Informant (Deceased) I
(PW-1) ___________________I_____
I I I I
Ram Kumar Suresh Ram Kishor Ram Naresh
(A-3) (A-4)
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5. The allegations in the FIR are as follows:

Bhup Ram, son of Anokhe Lal from the first wife, has 1/3rd share in the

property and the remaining share is with the others. He (Bhup Ram) is close

to the Informant side. It is because of this reason that Ram Swaroop

(Appellant-1) and Shri Krishna (Appellant-2) are not in good terms with

them;

On 8.5.1981, the Informant’s father and Bhup Ram have purchased a

tractor. Since then, Appellants-1 and 2 have become in inimical terms with

them;

Appellants-1 and 2 have also threatened to kill Bhup Ram. The Deceased

had challenged them that they cannot do anything to Bhup Ram;

Today, after cultivating the land, the Deceased had kept the tractor in front

of the house and came to the old house at 19:00 hours, where the

Informant’s children live.

When he went inside to bring a cot, Appellant-1 started abusing him.

Appellants-2 to 4 exhorted to kill the Deceased. They got hold of the

Deceased and put him down;

The Deceased cried for help. On hearing his cry, the Informant (PW-1),

Rameshwar (PW-5), and Ram Lal (DW-2) went inside the house. They saw

that the Accused had kept the Deceased down and Appellant-1 knifed him

then ran away;

The Deceased died because of the knife injury.

6. The police investigated the case and submitted the charge sheet.

7. The case was committed to the sessions’ court and was numbered as ST No.

481 of 1981.

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8. The ASJ framed the following charges on 30.5.1981:

Ram Swaroop (Appellant-1) was charged under section 302 IPC;

Shri Krishna, Ram Kumar, and Suresh (Appellants-2 to 4) were charged

under section 302 read with section 34 IPC.

9. Among the others, the prosecution filed the following documents:

Copy of the FIR dated 30.5.1981 (Ex Ka-3);

Written Report dated 30.5.1981 (Ex Ka-1);

Recovery memo of blood stained and plain earth dated 30.5.1981 (Ex Ka-

13);

Postmortem examination report dated 31.5.1981 (Ex Ka-2);

Site Plan with the Index dated 31.5.1981 (Ex Ka-10).

10. The prosecution examined the following witnesses:

Jang Bahadur (PW-1): Informant, an eyewitness;

Rajesh Kumari (PW-2): Eyewitness;

Brij Bhushan Singh (PW-3): Constable, carried the dead body;

Dr. SC Gupta (PW-4): Doctor, conducted the postmortem;

Rameshwar (PW-5): Eyewitness;

RS Verma (PW-6): Investigation Officer (IO).

11. The statement of the Accused under section 313 CrPC were recorded on

16.12.1981. They denied their involvement in the same and made the following

statement:

(i) Appellant-1 denied his presence on the spot;

(ii) Appellant-2 stated that:

He was not permitting the father of the Deceased to irrigate the land.

Due to this, father of the Deceased was on inimical terms with him;
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He was implicated in this case for the aforesaid reason.

(iii) Appellants-3 and 4 stated that they were involved because of enmity with

their father (Appellant-2).

12. The defence examined the following witnesses:

(a) Natthoo Lal (DW-1): Pradhan of the village deposed that:

He reached the spot at 23:00 hours;

Jang Bahadur (PW-1) reached the spot thereafter.

(b) Ram Lal (DW-2): Brother-in-law of Anokhey Lal. He is the maternal uncle of

PW-5, father of the Deceased as well as of Appellant-1 and 2. He deposed that

Appellant-1 was in his house since before the incident.

13. The ASJ by his judgement dated 10.2.1982 convicted the Accused and

awarded them the following sentence:

(i) Appellant-1 was awarded imprisonment for life under section 302

IPC;

(ii) Appellants-2 to 4 were awarded imprisonment for life under section

302 read with section 34 IPC.

Hence the present appeal.

14. During pendency of the appeal, the office gave report dated 9.7.2010 that Ram

Swaroop (Appellant-1) and Shri Krishna (Appellant-2) have died. Their appeal is

abated. The appeal survives for Ram Kumar (Appellant-3) and Suresh (Appellant-

4). They are jointly referred as the Appellants.

15. We have heard Sri PN Mishra and Sri Intekhab Alam, counsel for the

Appellants, and Sri Arunendra Kumar Singh, AGA for the State.
5

THE DECISION

16. The prosecution examined six witnesses. Out of these, three namely {the

Informant (PW-1), Rahesh Kumari (PW-2) and Rameshwar (PW-5)} are

eyewitnesses. Rest of them are formal witnesses.

17. The AGA submitted that eyewitnesses have deposed that:

The accused were present on the spot;

All of them were involved in the incident;

The Deceased died due to the knife injury caused by Appellant-1;

The prosecution has proved its case beyond reasonable doubt;

We have our doubts so far as the Appellants namely Appellant-3 and 4 are

concerned.

No Eyewitness was Present at the Beginning

18. According to the deposition of the Informant (PW-1) his wife Rajesh Kumari

(PW-2) was present on the spot. However, her presence is not mentioned in the

FIR. She is also not mentioned as an eyewitness on the spot. The prosecution

version in the FIR is that the Informant’s children used to live in the old house but it

neither means nor is there any mention that the Informant’s wife was present on

the spot at the time of the incident. This creates doubt whether PW-2 was present

on the spot at the time of incident.

19. The Informant (PW-1) has also deposed that whatever his wife (PW-2) told

him, he wrote in the written report (Ex Ka-1). This indicates that PW-1 did not reach

the place at the time of incident but reached there after the incident. His oral

evidence may be hearsay.

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20. The Informant (PW-1) and Rameshwar (PW-5) have deposed that:

They had two houses. One was old and the other was new.

The new house was about 250 paces from the old house;

The Informant, Appellants-1 and 2 alongwith their families used to live in the

old house;

They were coming form the new house towards the old house when they

heard the cries for help of the Deceased.

21. It is clear form the deposition of Informant (PW-1) and Rameshwar (PW-5) that

they were not in the old house but were coming towards it. They reached the spot

after they heard the cries for help of the Deceased. They were not there in the

beginning and do not know how it began.

22. In our opinion, none of the eyewitnesses were there before the incident began.

They reached after it ended or at best after it started.

Doubt About Exhortation

23. No one was present at the beginning of the incident. No one knows the real

reason of the incident. It cannot be said that Appellant-2 to 4 exhorted their uncle

Appellant-1 to kill the Deceased.

24. In our opinion, as none of the witnesses were present on the spot at the

beginning of the incident, there are doubts whether any exhortation was given by

Appellants -2 to 4. The only material evidence on record is, that Appellant-1 knifed

the Deceased. But we are not concerned with him.

Weak Motive — Some Other Reason

25. In substance, the motive in the FIR is that:
7

Laljit (father of the Deceased and the Informant) had purchased a

tractor alongwith Bhup Ram;

They were closed to Bhup Ram;

Appellants-1 and 2 were jealous because of above reasons.

The aforementioned motive is also broadly also deposed by the eyewitness too.

26. Even if the motive is accepted, it is too weak a motive to commit the murder of

such a close relative. No one would commit murder of real nephew or a cousin for

this. The reason of the incident appears to be different: it could be what

immediately happened before the incident. It could be some insult to Appellant-1 or

sudden dispute on the spot but what was that is not known.

Presence of Appellants 3 and 4 — Natural

27. All eyewitnesses have deposed that:

The Deceased was knifed by Appellant-1;

Appellant-1 ran away thereafter.

28. Appellants- 2 to 4 were on the spot and were arrested on the same day.

However, Appellant-1 was not arrested. He surrendered before the court on

5.6.1981. This indicates that the deposition of the eyewitnesses that Appellant-1

knifed the Deceased might be correct but we are not concerned with him and are

concerned with only Appellants-3 and 4.

29. Admittedly Appellants- 2 to 4 resided in the old house. Their presence on the

spot was natural.

No Overt Act by Appellants – 3 & 4

30. The ante mortem injuries of the Deceased are as follows:

(i) Stab wound with incised margins 3 cm x ½ cm x chest cavity deep on
8

the part of left side of chest 4-1/2 cm x medical and slightly above the left

nipple (at 10 O’ clok position). The direction was straight forward. The III and

IV ribs, under the injury have been cut.

(ii) Old healing wound ½ cm x ½ cm x over medial malleolus of right foot

painted with nail polish.

31. It indicates only one knife injury. The prosecution case is also that there was

only one knife blow.

32. There is no evidence of exhortation; there is no credible evidence of any overt

act by the Appellants.

33. It was said the Appellant-3 and 4 gave exhortation but there is no evidence for

the same. There presence on the spot is natural: they reside in the same house.

No one knows how the incident started. The motive is too weak. There is no

reasons for Appellants-3 and 4 to join in the crime. There is no credible evidence

that there was any overt act on their part. Considering the circumstances, it cannot

be said that there was any common intention to commit the crime.

34. Appellant-2 has four sons: Two are appellant-3 and 4; Two others are Ram

Kishore and Ram Naresh. They were minors at the time of the incident. It is just

possible that entire family of Appellant-2 was added leaving out the minors sons.

35. In our opinion, the prosecution has not been able to prove its case beyond

reasonable doubt against the Appellants.

ORDER

36. In view of our conclusions, Ram Kumar and Suresh (Appellants-3 and 4) are
9

given benefit of doubt and are acquitted. The conviction and sentence by order

dated 10.2.1982 passed by 1st Addl. Sessions Judge, Shahjahanpur in ST No. 481

of 1981 is set aside. They are already on bail. Their bail bonds are cancelled and

sureties are discharged. They need not surrender.

Date: 28.7.2010
SKS
10

Criminal Appeal No. 436 of 1982

1. Ram Swaroop

2. Shri Krishna

3. Ram Kumar

4. Suresh………………………………………Appellants
Vs.

State of UP…………………………………………..Respondents.

HON’BLE YATINDRA SINGH, J
HON’BLE SURENDRA SINGH, J.

1. We have heard Sri PN Mishra and Sri Intekhab Alam, counsel for the Appellants

and Sri Arunendra Kumar Singh, AGA for the State.

2. In view of office report dated 9.7.2010, the appeal of Appellants-1 and 2 is

abated.

3. The prosecution has not been able to prove its case beyond reasonable doubt

against Ram Kumar and Suresh (Appellants-3 and 4). They are given benefit of

doubt and are acquitted. Their appeal against the order dated 10.2.1982 passed by

1st Addl. Sessions Judge, Shahjahanpur in ST No. 481 of 1981 is allowed. They

are already on bail. Their bail bonds are cancelled and sureties are discharged.

They need not surrender.

4. For detailed orders, see our orders of date passed on separate sheet of papers.

Date: 28.7.2010
SKS