IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
BHOOP SINGH & ORS. V/S The State of Rajasthan
CRIMINAL APPEAL No. 363 of 1983
Date of Judgment : 12th Feb. 2009
PRESENT
HON'BLE SHRI N.P.GUPTA,J.
HON'BLE SHRI KISHAN SWAROOP CHAUDHARY,J.
Mr. NIRANJAN GAUR, for the appellant.
Mr. JPS CHOUDHARY, P.P.
BY THE COURT:(PER HON'BLE GUPTA, J.
This appeal was filed by five accused persons
Bhoop Singh, Mahendra, Kashi Ram, Hari Singh and
Chhotu, against the judgment of learned Addl. Sessions
Judge, Nohar dt. 30.9.1983, convicting all the five
accused persons for the offence under Section 148 and
302 read with Section 149 IPC, and sentencing each of
them to one year’s rigorous imprisonment with a fine
of Rs. 200/- for offence under Section 148, and with
imprisonment for life and a fine of Rs. 500/- for
offence under Section 302 read with Section 149, and
further directing that in default of payment of fine
each accused shall undergo five months’ further
rigorous imprisonment.
2
The appeal was filed on 11.10.1983, and was
admitted on 13.10.1983. Then, on 11.11.1983 the
application for suspension of sentence of the accused
Mahendra, Kashi Ram, Hari Singh and Chhotu was
allowed, and they were released on bail. Then, on
16.2.1984 sentence awarded to fifth accused Bhoop
Singh was also suspended, and he was released on bail.
Thus, all the five accused are on bail. During trial
it was reported on 10.9.1999, that the accused
Mahendra has expired, and a death certificate was also
obtained, and enclosed. Thus, out of the five
appellants the appeal of Mahendra abates.
Consequently, the present appeal is required to be
considered to be an appeal on behalf of remaining four
accused only.
Facts of the case are, that one Fularam Jat
s/o Chiriya Gandhi lodged a report at P.S. Bherani at
7.45 P.M. (date we are not mentioning as that is one
of disputed points) to the effect, that his brother
Kalu Ram bears enmity with Hari Singh, Kashi Ram r/o
Chiriya Gandhi. There is litigation between the
relationship (आपस र श द म मकदमब ज चल ह), and on
that count yesterday at 2 P.M. on the Bus Stand Gandhi
Bari on the shop of Jagan, Kalu Ram was sitting, at
that time Chhotu intimated, thereupon Hari Singh,
3
Kashi Ram, Mahendra, Chhotu, Bhoop Singh sons of Moman
Ram r/o Chiriya Gandhi came duly armed with axe, and
lathi, and in front of shop of Jagan they started
beating Kalu, but Kalu took shelter in the shop by
rushing into it, but all these persons had broken his
head with lathis and axe, and have killed him. At that
time his elder son Dilip and his nephew Kashi Ram were
there at the bus stand, who had seen the incident.
There were many other persons seeing the incident. On
receiving this information he went to the shop of
Jagan, and saw that Kalu Ram was having injuries on
his head, and face, and was lying dead in the shop of
Jagan. On this information a case under Section 302,
147, 148 and 149 IPC was registered, and investigation
commenced. At this place we may observe, that in Ex.P-
1 date of incident is said to be 14.6.1982 at 2 P.M.
The F.I.R. in the prescribed column shows to have been
lodged on 14.6.82 at 7.45 P.M., but even according to
the contents of this report, as noticed above, the
incident took place on the earlier day. Obviously it
should be 13, while it is contended before us, that
the F.I.R. was, as a matter of fact, lodged on 15th, it
reached the Magistrate at 8.30 P.M. on 15th, and even
other circumstances were pointed out, which we will
discuss later. On this information, after registering
the case necessary investigation were undertaken, post
mortem was got conducted on 15th, report whereof is
4
Ex.P-9, and after completing investigation, challan
was filed against all the five accused persons, where-
from the case was committed.
The learned trial court framed the charges
for the aforesaid offences. During trial some 12
witnesses were examined by the prosecution, which
include the star witnesses being P.W.1 Fula Ram, P.W.2
Jagan, P.W.3 Kashi Ram and P.W. 4 Dilip. P.W.1 being
the informant, P.W.2 being the shop keeper Jagan,
P.W.3 Kashi Ram is the nephew of the deceased (being
the son of Ranjeet, the other brother of the deceased)
and P.W.4 Dilip is the sons of the informant.
Obviously they have been produced as eye-witnesses, or
material witness to unfold the prosecution case.
Likewise, the prosecution tendered in evidence some 36
documents. The accused persons took the stand of
denial. They also denied to have got made various
recoveries. The learned trial court after so
completing the trial convicted and sentenced the five
accused persons as above.
The learned trial court first of all
discussed the aspect of formation of unlawful
assembly, with common intention to cause death, and
referred to Ex.P-36, an F.I.R. lodged by the accused
Hari Singh, on that very day, 14.6.1982 at 7.30 P.M.,
5
to the effect, that Om Prakash, Sant Lal, Mange Ram
sons of Harpat are their relations, and there is
enmity between Kalu Ram on the one hand, Om Prakash,
Mange Ram, and Jai Singh on the other hand. They are
on litigating terms. With this, it was alleged, that
last evening Kalu and Jai Singh came in the Chowk of
their village and threatened him. Then, on the date of
report being 14.6.1982 at 2 in the noon, their brother
Chhotu came from his in-laws house, and alighted at
the bus stand Gandhi Bari, at that time Kalu and his
nephews Dilip and Kashi Ram stopped Chhotu Ram, and
intimation was sent at his house. Thereupon his
brothers Kashi Ram, and Bhoop Singh, and the father
Moman Ram came there armed with lathis, and when they
reached near the Kund, situated near the house of Hans
Ram Chamar, Kalu Ram came armed with single barrel 12
bore gun, and started firing at him, but his father
did not get separated, and Kalu fired from that 12
bore gun on his father, with the result, that his
father died on the spot. Kalu Ram started reloading
the gun, but since empty cartridge did not come out,
he along with Kashi Ram and Bhoop Singh challenged
Kalu Ram, who ran towards bus stand, thereupon they
chased him, and near the shop of Jagan, injuries were
inflicted on the head and face of Kalu Ram, who
concealed himself in the shop of Jagan. The informant
and Bhoop Singh entered in the shop, while Kashi Ram
6
remained out side. Kalu Ram was made to fall in the
shop, and injuries were inflicted to Kalu Ram with
lathis, they took the 12 bore gun with empty
cartridges, and came to their father who was bleeding.
After one hour the victim died of firearm pallets, and
he has come along with Kashi Ram to lodge the report.
On this report F.I.R. No. 40 was registered, for the
offence under Section 302 I.P.C. It was noticed, that
in this report itself, the informant Hari Singh
himself has disclosed about himself causing injuries
on the face and head of Kalu Ram in the shop of Jagan,
by entering the shop along with Bhoop Singh. Then it
was noticed, that the F.I.R. Ex.P-1 has been lodged at
7.45 P.M. wherein also the incident is said to have
taken place at 2 P.M., and there is interpolation in
the figure 1 and 0 in the F.I.R. Number, and it is
alleged in this Ex.P-1, that at about 2 in the noon
when the brother of the deceased was sitting on the
shop of Jagan, accused started beating the deceased
outside the shop, and inflicted fatal injuries, and
when his brother entered the shop, there also he was
beaten. Thus it was found, that presence of Dalip and
Kashi Ram has been admitted by the accused themselves,
from the averments contained in Ex.P-36. Thus, the
learned trial court proceeded with accepting presence
of P.W.3 and P.W.4 at the place of incident, and their
being eye witnesses.
7
Then, the evidence of P.W.2 has been
discussed, and it was found, that this witness Jagan
Nath had turned hostile, but he was treated to be eye
witness. Then the evidence of informant P.W.1 was
discussed, who also proved the site plan Ex.P-2,
Panchayatnama Ex.P-3, and the recovery memo of blood
stained clothes of the deceased. It was noticed, that
this witness is wavering on the aspect of F.I.R. being
lodged on 14th or 15th, but then it was found that his
evidence cannot be discarded altogether, F.I.R. not
being a substantive piece of evidence, nor is the last
word of prosecution. Thus, implicit reliance was
placed on the aforesaid eye witnesses.
Then, certain circumstances were also
considered, viz. the recovery of lathi from Hari
Singh, recovery of lathi from Kashi Ram, recovery of
Kulhari from Bhoop Singh, and recovery of other
lathies, from Mahendra and Chhotu each. Then, the
argument of incident being out come of sudden and
grave provocation was negatived, and was held to be an
act of retaliation. With these findings the accused
persons have been convicted as above.
We have heard the learned counsel for the
appellants, and the learned public prosecutor.
8
Before discussing the prosecution evidence,
we would like to refer to Ex.P-36, as this has been
considered to be of foundational importance, and the
evidence of P.W.3 and 4 has been substantially
believed on its basis. This document is available on
the record at page A-56/2, and a look at it shows,
that it has been filed vide application dt. 25.5.1983,
available in record at page A 56/1. Then this original
Ex.P-36 is nothing but a type copy of some paper,
purporting to be F.I.R., which is neither photostat
copy, nor any certified copy, nor compared by anybody
in authority. It does not bear any mark, to attach any
sanctity about its reliability or make it admissible.
The matter does not end here. P.W. 11 Dungarmal,
S.H.O. the investigating Officer has proved this
document also, by deposing that on 15.6.1982 accused
Hari Singh s/o Moman Ram Jat appeared, and lodged an
oral report, that Kalu Ram has killed his father Moman
Ram, by a gun fire. This report is Ex.P-36, and bears
his signature ‘A to B’, while thumb mark of Hari Singh
is at point ‘X to Y’. This report was read over to
Hari Singh who understood it and found it to be
correct, and put his thumb mark, and after
investigation challan was filed. Likewise, he has
further deposed in cross-examination, that after
receiving the report Ex.P-36 he did not relieve Hari
9
Singh, and had carried him with him to Gandhi Bari,
and since then Hari Singh is continued to be with him.
He took Kashi Ram also with him from Police Station
Bherani, and he also continued to be with him. Even at
the cost of repetition it may be observed, that Ex.P-
36 does not bear any marks like ‘A to B’, much less
thumb mark or the mark ‘X to Y’. Then, in cross
examination, he has further deposed that in the said
F.I.R. he prepared Panchnama Lash Ex.D-8, Fard Surat
Haal Lash Ex.D-9, Ex.D-6 and D-7 are the site plan and
site inspection note, which depict the correct
situation as was found. Then, he has admitted that in
Ex.P-11, 13, 27, 34 F.I.R. Number is not mentioned.
Then, gun was recovered in F.I.R. No. 40/82 (Ex.P-36)
which was sent to F.S.L., which was having one empty
cartridge blocked in the barrel, and that at that time
gun was with Kalu Ram, and that, Kalu Ram had
committed murder of Moman Ram at place ‘O’ shown in
Ex.P-2. It may be noticed that Ex.P-2 is the site plan
of the present case, showing place of incident, which
is a place situated south west to the shop of Jagan.
During course of argument, we were told that in the
case of murder of Moman Ram no challan was filed,
rather final report was given, as the accused in that
case being Kalu Ram, had become a subject matter of
murder in the present case. This, in conjunction with
the fact, that P.W. 4 Dalip, who is son of the
10
informant, has deposed to be not knowing Moman Ram,
nor to have ever seen him, and that he did not even
hear Kalu Ram having killed or murdered Moman Ram on
the same date of incident, (क ल न म मन क उस ज म ददय
ह ऐस मन नह सन ). He deposed to be not aware about Kalu
having undergone imprisonment. It would suffice to
say, that if the story of Ex.P-36 were to be accepted,
the two murders have taken place immediately one after
another, and according to that report, this Kashi Ram
was there, and claims to be nephew of Kalu Ram. In
such circumstances, when he chooses to depose to have
not even heard of Moman having been murdered by Kalu
on that day, this, coupled with the above catalogued
circumstances, Ex.P-36, on which implicit reliance has
been placed by the learned trial court, cannot be
relied upon at all. It is a different story, that
Ex.P-36 is not even a document legally admissible in
evidence in law. Thus, the very basis of basic
assumption, made by the learned trial court, to place
implicit reliance on these two witnesses P.W. 3 and
P.W.4 falls flat.
In this sequence in the F.I.R. Ex. P-1 it
becomes very significant, as to whether it was lodged
on 14th or 15th. There may be circumstances and cases,
where even a day’s delay in lodging the report may not
be of very serious consequence, but here are peculiar
11
circumstances of the case, viz. we are asked to
believe, that two cross murders have taken place, and
present one being in retaliation. In this sequence
this fact is required to be attached substantial
importance, as to whether the F.I.R. was lodged on 14th
or 15th.
On looking at the front page of the F.I.R. it
clearly purports to have been lodged on 14th at 7.45
P.M., but then reading all the contents thereof shows,
that it narrates the incident of yesterday, i.e. 13th,
and then it is received by the Magistrate at 8.30 P.M.
on 15th. In this background, a look at the statement of
informant Fula Ram P.W. 1 shows, that he was cross
examined thoroughly on this aspect, and he has deposed
in examination in chief, to have lodged the report
Ex.P-1, and has proved it, but he has not given the
date. Then, he was cross examined in detail, and he
has stated that after giving report he returned, the
S.H.O. did not accompany him, and came later. Then, he
has stated that the S.H.O. came on the next day at
about 10-11 in the morning. Then, the witness has
changed by deposing, that the S.H.O. had come at about
10-11 in the night. Then, he further changed his
statement, that the S.H.O. came to his village at 11
same night of the lodging of the report, and
immediately he saw the dead body, and that the accused
12
Kashi Ram and Hari Singh were already there with the
S.H.O., who were immediately arrested on lodging Ex.P-
1, and the S.H.O. brought them with him. It may be
noticed here, that the S.H.O. P.W. 11 does not say so
to have arrested Kashi Ram and Hari Singh on receiving
the report Ex.P-1. He has denied the suggestion about
the report having not been lodged on 14th, and to have
been lodged on 15th, by being delivered to the S.H.O.
in the village only. Then, he has picked up another
story by deposing, that at the time when he gave
information on 14th, Ex.P-1 was not scribed, and Ex.P-1
was scribed on 15th. This version was given out on
being put the word “yesterday” appearing in the body
of the F.I.R. Then he has again stated, that after
giving report to the S.H.O. in police station, the
S.H.O. made writing, and obtained his thumb mark on
Ex.P-1, and he does not know as to how the word
“yesterday” has occurred, and he has maintained that
report was not lodged on 15th but on 14th, and that in
earlier part of his statement he had wrongly stated
that the report was lodged on 15th at village. Then, he
was confronted with his police statement Ex.D-1 “A to
B” being reference of F.I.R. No. 41 dt. 15.6.82, he
stated, that he does not know as to how it came to be
scribed. He denied the suggestion about the F.I.R.
being lodged on 15th, describing it to be of 14th. Then,
he has stated that his sister, Kashi Ram and Dalip had
13
come early in the morning of 15th, and on that very day
S.H.O. interrogated them on 15th. The arrival of
sister, Dalip and Kashi Ram is relevant, because in
the earlier part he has stated, that sister of the
informant is married at Rampuriya, and when Kashi Ram
and Dalip came from Rampuriya, his sister also came
from Rampuriya, as she had learnt about the incident,
and in this process the informant denied the
suggestion about Dalip and Kashi Ram to be not there
at the place of incident, and to have come only after
learning about the incident. In this very sequence
again, a look at the statement of P.W. 11 would show,
that he deposed to have reached on the spot on
15.6.1982, and inspected the site, and prepared Halaat
Moka Ex.P-20. On 15.6.1982 he prepared the
Panchayatnama Lash, Fard Surat Haal Lash being Ex.P-
21, seized the sample earth and blood smeared earth,
and got the post mortem examination done, report
whereof is Ex.P-9. In juxtaposition of this, we may
recapitulate that P.W.1 has deposed that the S.H.O.,
immediately on reaching the spot saw the dead body,
and obviously other things were done later, and Fard
Surat Haal Lash Ex.P-21 is dated 15.6.1982, and very
intelligently time has not been mentioned. The
mentioning of time has been omitted, not only on this
document, but on very many other documents as well.
Even in arrest memo of Kashi Ram Ex.P-18 time has not
14
been mentioned. Though arrest memo of Hari Singh does
mention time being 9 P.M. Site inspection note does
not bear any date and time. Likewise, even the
information memo Ex.P-23 and Ex. P-24 do not mention
time. Likewise, the information memo Ex.P-30 and Ex.P-
31 do not mention any time. All this does cast serious
doubt, about the fact of lodging of the report on 14th.
Not only this, it is significant to note,
that a bare look at Ex.P-36 also shows, that thereupon
it is endorsed that F.R. No. 34 was given on
28.11.1982, under the heading “ADAM PATA”. It is
notwithstanding all this, that as late as on 25.5.1983
the I.O. has chosen to depose the challan having been
filed on this Ex.P-36 after completing investigation.
This clearly shows, height of either telling lies, or
careless attitude of the S.H.O., in giving statement
in the Court.
Thus, it is clear, that the prosecution has
resorted to manipulations on every convenient place,
and has even gone to the extent of tendering
inadmissible document in evidence, and the S.H.O. has
gone to the extent of giving statements, even contrary
to the contents of Ex.P-36. In such circumstances, the
presence of P.W. 3 and 4, who are none else than the
son of the informant, and the nephews of the deceased,
15
cannot be presumed, as done by the learned trial
court, and their evidence is required to be
scrutinised with utmost care and caution, as to
whether they were at all at the scene of incident, or
that they had gone to village Rampuriya, to fetch the
sister of the informant, and there having learnt about
the incident, came in the morning, and thereafter the
story was cooked up, introducing them as eye
witnesses, and F.I.R. Ex.P-1 was subsequently lodged.
In the above background now we proceed to
examine the material and important evidence on record,
on which the prosecution seeks to rest its case.
As noticed above that evidence comprised of
P.W.1, P.W.3 and P.W.4, as P.W. 2 has been declared
hostile. Before proceeding with that, we may
recapitulate the material part of the F.I.R. Ex.P-1,
which is lodged by P.W.1 Fula Ram. According to this
report after narrating the alleged actual incident,
about the accused persons coming armed with weapons,
and causing injuries to the deceased, deceased taking
shelter in the shop of Jagan, but all of them having
entered in the shop, and inflicted injuries, and
having killed him. It is alleged in the report, that
at that time Jagan, informant’s son Dalip and his
nephew Kashi Ram were available on the bus stand, who
16
had seen the incident, and very many other persons
were there to see the incident. Thereafter on the
informant’s receiving information he went to the shop
of Jagan, and saw the deceased dead having injuries on
his person. Thus, according to this report, P.W. 1
Fula Ram informant is not an eye witness of the
incident, and has lodged the report only on the basis
of the information conveyed to him, obviously either
by Dalip, Kashi Ram, and/or Jagan. Then, coming to
statement as given in the Court as P.W.1, it is
deposed, that Kalu is on litigating terms with the
relations of the accused persons. He was told about
the incident to have occurred on the bus stand on the
shop of Jagan Nath, he asked Jagan Nath about the
incident, and he was told that Kalu has been killed,
and Kalu did not do anything. Obviously as observed
above, on that very day, at that particular time, as
the story goes, Kalu had killed the father of the
appellants, Shri Moman Ram, and since as has come in
the evidence of the two eye witnesses, they did not
want to own that incident, and even decided to depose
ignorance. It is in that sequence, that he has
unnecessarily deposed, that his brother (deceased) did
not do anything. Then he has deposed, that Jagan Nath
had informed, that at the time of incident Dalip and
Kashi Ram were there. Then, he made enquiries from
Dalip and Kashi Ram. At the outset it may be observed,
17
that it does not stand to reason, that if so close
relatives being the nephews of the deceased had seen
the incident happening, they would not do anything,
and informant would be left to be informed about their
presence by the other alleged eye witness Jagan. Then,
in cross examination he has further stated, that on
14th he had gone to village Jogiwala, wherefrom he
returned at 3.30 in the noon, he had gone to Jogiwala
on foot, though there is bus available. Then, he
stated, that when he went to ask Jagan nobody else was
with him. Then he has deposed, that the house of Kalu,
his another brother Ranjit, and that of the witness
are at the same place. He stated that Kashi Ram lives
in the house of his father. While Dalip lives with the
witness, and that the shop of Jagan is at a distance
of 500 paces. He has also stated, that on 14th evening
the S.H.O. had come in the village, and he does not
know as to whether they had seen the dead body of
Moman Ram. Then he had admitted, that Moman Ram had
died at 5 P.M. on 14th, who was father of the accused.
Then, he has clarified, that he was told that Moman
Ram had died at his own house, and he does not know as
to how Moman Ram died, and he has reiterated, that
when he learnt that the accused persons have killed
his brother Kalu, he did not hear, or learn that Moman
Ram had been shot dead by Kalu. He has also stated,
that after returning from Jogiwala, Dalip (some times
18
described as Deep Chand) and Kashi Ram had informed of
the incident at his house. He was not told by these
two witnesses that at that time Kalu Ram was having
gun with him. Then, he was contradicted on the aspect
of his having told about different weapons. He was
also asked various questions about the situation
inside the shop, which would have been put topsy-
turvy, if any beating would have been given in inside
the shop, as alleged, like water having been split
from the pitcher, pitcher to have broken, or presence
of canister of flour etc. Then, he has described the
width of that Kothri to be 5 to 6 ft., and height to
be 7 to 8 ft. Thereafter, significantly he has stated
that at 11 in the night when S.H.O. came, Dalip and
Kashi Ram were not available in the village as they
had run away to Ramlpuriya, he did not find them at
house, even when he returned from P.S. Bherani, though
while he went they were there. Then, on the court
question he expressed inability to show any reason as
to why these two persons Dalip and Kashi Ram were not
taken by him to police station for lodging report. He
has also admitted, that his sister is married at
Rampuriya, and when Dalip and Kashi Ram returned, his
sister was also with them, because she had learnt
about the incident. He has denied the suggestion about
Dalip and Kashi Ram being not there at the time of
incident, and to have come from Rampuriya only on
19
learning about the incident. Then, significantly he
has stated that Dalip and Kashi Ram had called his
sister (ददल प औ क श म म बहन क बल क ल ए थ।). He has
also stated, that his sister, Dalip and Kashi Ram had
come early in the morning of 15th, and that very day
S.H.O. had interrogated them.
It is in this background, that now we
proceed to examine the evidence of P.W. 3 Kashi Ram,
who is son of Ranjit, another brother of P.W.1 Fula
Ram, and the deceased. He has deposed that at 2 in the
noon, on the fateful day, he along with Dalip were on
the bus stand, there was a dialogue between Kalu and
Mange Ram and Om Prakash. Mange Ram is the relative of
the accused persons, though the deceased had no
quarrel with Mange Ram. He has stated that on the bus
stand, he and Dalip were going to fetch their Bhua
(sister of P.W.1 Fula Ram). At that time his uncle
Kalu came from towards Chiriya Gandhi, he was having a
gun, and the accused persons were also behind him.
Bhoop Singh was having Kulhari, and others were having
lathis, and they were chasing and beating him. The
deceased stopped at the Dhaba of Jagan. All the five
accused persons gave beating there, then the deceased
took shelter in the Kothri. Thereupon Hari Singh and
Bhhop Singh entered Kothri also, Jagan Nath tried to
intervene, but Kashi pushed him away, and when they
20
came forward, they were threatened with dire
consequence, and were told that his uncle has been
killed, and they may see their uncle, and do whatever
they want to do. Then, they went to home, where nobody
was there, and only aunt was there. Then, at about 3-4
P.M. Fula came to home, and the story was narrated.
Then, Fula went to bus stand, and saw Kalu. At this
place it may at once be observed, that the narration
given by this witness is contradicted by the narration
given by Fula, inasmuch as according to that witness
P.W.1, he was informed when he returned from village
that his brother has been killed who was sitting on
the shop of Jagan Nath. Then, he went to Jagan, and
made enquiry, and was told the sequence of event, so
also of the fact that Dalip and Kashi were also seeing
the incident. It does not stand to reason, that if
these witnesses had narrated him the event at the
house, there was no occasion for Fula to learn from
unknown sources, and go to Jagan, and learn these two
persons to be eye witnesses. We may stress again, that
according to this witness he was at the bus stand,
because he was going to fetch his Bhua, who was living
at Rampuriya, who had come in the early morning of
15th. In cross examination he has stated, that his
house is at a distance of 100-150 paces from the bus
stand. At the time he reached the bus stand, bus had
already come from Bhadra, in which bus itself they had
21
to go. Then he has stated, that when he saw Kalu for
the first time, he was near the Chhapar of Jagan, and
was holding gun in his hand, it was not hanging on his
neck. The bus coming from Bhadra was to go to Kagdana,
had haulted to drop the passengers, and since at that
time another bus goes to Bhadra, therefore, those
passengers were also available at the bus stand. Then,
he was confronted with some portion of his police
statement Ex.D-2. He has stated, that when they saw
Kalu, they had just come on the bus stand, and does
not know since how long Kalu was there on the bus
stand. He has also stated, that it is only when
accused persons had gone away, that they went to the
house. Of course, before that they had seen Kalu
inside the Kothri. On this aspect he was again
confronted with Ex.D-2, then he has stated that he was
standing at a distance of about 20 paces from the shop
of Jagan, in the east of the house of Hans Ram Gurda,
and when he returned home, the bus had come from
Kagdana going to Bhadra. He has denied to have stated
the portion A to B in Ex.D-2, about he, along with
Dalip to have immediately rushed to house, and to have
informed his uncle Fula Ram the whole incident, to
which he stated that this was not so stated by him, as
his uncle had already gone to other village, and had
come later. He did not accompany Fula, when Fula had
come to see Kalu. Then, he has stated that he was
22
already interrogated by the police on 13th. Then, he
informed that he does not know about dates. However,
he was interrogated after three days of the incident.
Significantly he has also stated that he was not in
the village as he and Dalip had gone to village
Rampuriya to bring their Bhua, who is married at
Rampuriya. Rampuriya is at a distance of 4 Kos from
Gandhi Bari (around 12 kms.), and they had gone on
foot, even though bus is available for going there. He
has also stated, that on the date of incident at the
time of around cow dust they had gone, they have
narrated the incident to their Bhua, and have come on
the next day in the morning. He has stated, that when
they came from village Rampuriya, police had already
come in the village, they were called for next day at
Bhadra, and on the still next day his statement was
recorded. Then, significantly he has stated that at
the time of incident Hem Raj, Nahar Singh and many
more persons were there on the spot. Neighbours were
also there. Significantly no independent witness has
been examined by the prosecution. Then, he has stated
that he does not know father of the accused being
Moman Ram, and that he never had any dealing with him,
and stated to be knowing the accused persons from the
date of incident only. He stated that his uncle Kalu
was quite strong man. He has deposed ignorance about
Kalu having already served sentence for the offence of
23
murder of Laxman Dhilu. Then, he has stated that Mange
Ram is the real Bahnoi of the accused persons, and has
stated that subsequently he heard that Kalu had killed
Moman. He had denied the suggestion about not having
seen the incident, and to be giving false statement,
or that on the date of incident he was in Rampuriya
only, and to have not seen the incident.
Now, we take up the evidence of P.W.4 Dalip.
He has stated, that on the fateful day at about 2, he
along with Kashi were there on the bus stand, who were
going to fetch their Bhua, because his sisters were
scheduled to be marred on 24th. His uncle Kalu came
from towards Chiriya Gandhi, who was having gun, and
was being chased by the accused persons, they came
near the shop of Jagan, and started showering blows on
Kalu with Lathi and Kulharis. The deceased took
shelter in the shop, thereupon Hari Singh and Bhoop
Singh also went in the shop and inflicted further
injuries, with the result that Kalu died. According to
him many more persons were also there at the scene. He
also states, that after the accused persons had gone
about 50-60 paces after killing Kalu, then they went
to deceased. Then, from the spot they went to home,
narrated the whole thing to Fula Ram. Fula Ram then
came to the place of incident, and asked Jagan, then
he saw Kalu, and then went home. Then, Fula Ram went
24
to lodge report at the police station Bherani. The
motive is deposed by these witnesses to be, that his
uncle had litigation with some relatives of the
accused persons. He has stated Mange Ram to be Bahnoi
of the accused persons, and father of the accused
persons being Shri Moman Ram, and there was bad blood
between the deceased and the accused persons, and
Harpat Ram is deposed to be father of Om Prakash and
Mange Ram. Kalu Ram was taking side of Jai Singh, in
the dispute against Mange Ram. This so called motive
is not deposed by anyone else, whether by Fula Ram, or
by Kashi Ram. Then, the story narrated by Kashi Ram
about, when Kalu was killed they intervened, is not
deposed by this P.W.4, rather Kashi Ram also
contradicts Fula Ram, about the source of information
of Fula, as to whether it was through Jagan, or from
other source, and about his having come to know, that
these persons are two eye witnesses. In cross
examination he stated, that the land in dispute was
cultivated by Harpat Ram, which is a government land,
and did not belong to Kalu or Jai Singh. He has
stated, that when they left home Kalu was not at the
house, as Kalu had already left the house at about
1.30 in the noon, but at that time he did not see gun
with Kalu, and at the bus stand he was having the gun.
He deposed ignorance as to from where Kalu procured
gun, available with him at bus stand. Then, he deposed
25
to be not knowing Moman, and that he never saw Moman.
Then he has deposed, that Moman lives in another Bas,
and he had no occasion to go to the house of Moman,
and Moman never happened to visit their house. Then,
significantly he has also stated, that he did not ever
hear, that on that very day Kalu had killed Moman.
Then as against the evidence of P.W.3, he has admitted
it to be true, that Kalu had undergone sentence for
murder of Laxman (Lichman). Then, contradicting P.W.3
he has stated, that the incident had already taken
place before bus having come from Bhadra, destined to
go to Kagdana, rather bus came later, and since the
incident had taken place, therefore, they did not go
to Rampuriya, and returned home, and went to Rampuriya
in the evening. He has stated, that when they returned
home, bus from Rampuriya to Bhadra had already gone to
Bhadra, so also the bus going from Bhadra to Rampuriya
had already gone. He claims to have remained at bus
stand for half an hour, and many persons had come
there, but nobody intervened to prevent the accused
from committing the incident. It is strange, that if a
person armed with gun is belaboured by five accused,
armed with Lathis and Kulhari at the bus stand at a
time when two buses have arrived, and many persons are
there, nobody would either intervene, or would be
available to see the incident, and narrate it in the
Court. It is stated, that when he saw Kalu, he was
26
going running from towards Chirya Gandhi, going
towards west. At that time Kalu was at the house of
Hans Ram, whose house is in the north south lane,
while the lane of bus stand is towards west, and house
of Hans Ram is not visible from the shop of Jagan, but
is visible from the open Chowk. He has stated to have
not seen Kalu firing any bullet near the house of Hans
Ram Chamar, and also did not see anybody living near
the house of Hans Ram having sustained gunshot injury,
nor did he hear the rapport of gunshot. He stated,
that accused persons were at a distance of 2-3 paces
from Kalu, they remained at bus stand for half an
hour, and during this time they did not hear the
rapport of gun shot. Then, he narrated the injuries
received by the deceased. He stated that at the time
when Kalu was being beaten he was having gun with him,
and that no blow was aimed by the accused persons on
the gun, or on the wrist, nor did they try to snatch
the gun, and stated, that after killing they took away
gun. Then, he has deposed, that he was standing
towards the north, in the southern lane, at a distance
of around 50 paces. Significantly he has stated, that
injuries of Kalu did not bleed, which injuries were
caused by Barchhi. He stated that when accused persons
were chasing Kalu, the customers sitting on the shop
of Jagan had got scared, and ran away. However, the
passengers of the bus remained there only. According
27
to him they returned from Rampuriya at 11 A.M. in the
next morning, while according to Fula Ram P.W.1 and
P.W. 3 Kashi Ram, they had come in the early morning.
He stated that he along with Bhua came on foot, and
not by bus. According to him police did not ask as to
where they were standing on the side. Both these
witnesses being P.W.3 and 4 were interrogated by the
police at the same time. Then, Dy.S.P. came to record
the statement on 3rd day in the rest house at Bhadra.
He has stated that Fula had not instructed them to go
to Rampuriya, but they went Rampuriya in frightened
state of mind, being afraid of accused persons,
because they were in Chiriya Gandhi itself, and next
day they came on their own, though they had not
overcome the fear, and had gone all alone, did not
carry any weapon either. He has deposed ignorance
about Kalu having killed Moman from the same gun, or
that Kalu intended to kill the sons of Moman also,
from that very gun. He had denied the suggestion,
about his not being there in the village, or to have
gone to village Rampuriya. He has stated that he did
not tell Fula Ram, that Kalu was sitting on the shop
of Jagn before death, rather he had informed that Kalu
was running with the gun, being chased by the accused
persons. He stated that he had told Fula Ram that the
accused persons threatened them with dire consequence
if they intervene. He has denied the suggestion about
28
he and Kashi having not narrated anything to Fula Ram.
Then he has stated, that he does not know as to
towards which side the accused persons had gone after
incident, or from which lane they went. He denied the
suggestion about not seeing the incident, and deposing
falsely being nephew of the deceased.
This is the whole stock of the eye witnesses.
In this background a look at the statement of P.W.2
Jagan would show, that he has not at all supported the
prosecution case, and has stated, that at about
quarter to two there was attack, and at that time he
was coming after having purchased sugar, Kashi, Bhoop
Singh, Hari Singh were coming having killed Kalu, and
had run away. He identified the accused persons; one
was having axe, the other was having Lathi. According
to him many passengers of the bus had come, who had
ran away. Then, thereafter Kashi and Dalip had come,
and went away after seeing. He has denied to have seen
any beating, but beating was given on the shop. The
prosecution of course got him declared hostile.
In our view, on the face of the above state
of evidence of the three persons, which contradicts
each other, on all material particulars, and aspects,
including, rather basic aspects being, as to how Fula
came to know of the incident, as admittedly Fula does
29
not claim to be eye witness. According to Fula he
learnt about the incident, and then ascertained facts
from Jagan, who told that Kashi and Dalip were also
seeing the incident, while according to Kashi and
Dalip they were there at the bus stand, and had seen
the incident, and thereafter they rushed to the house,
and narrated the things to Fula Ram. Thus, in the
background of the facts, that admittedly there was
marriage in the family, i.e. sisters of Dalip were
scheduled to be married on 24th, and according to the
witnesses they had gone in the evening to bring their
Bhua to Rampuria, obviously in the marriage. The two
witnesses maintained, that they had gone at the bus
stand, at that time, for the purpose of going to
Rampuriya, to fetch their Bhua. In this background
what the Court is asked to believe by these two
witnesses is, that despite being eye witness of the
incident, despite the accused persons being of the
same village, despite they being in a frightened state
of mind, and despite bus being available, they had
gone 12 kms. on foot only, after sun set, all alone,
even without carrying any weapon, and had come back
with their Bhua in the early morning. It is also
significant to note, that admittedly Fula was away to
other village, and did not instruct these witnesses to
go Rampuriya to fetch Bhua, yet they claim to have
gone to bus stand to go to Rampuriya. In this
30
background, what is significant to note is, that as
this Court is desired to believe through Ex.P-36, that
Moman Ram, father of the accused persons had been shot
dead by Kalu that very time, and in the retaliation,
and hot pursuit, the deceased was killed. As against
this both these witnesses have clearly denied this
fact, so much so that despite their claiming to be at
bus stand for half an hour, they did not hear any
rapport of the gun shot, much less did they see Moman
Ram lying in the lane, in which, and at the place at
which, they had first noticed Kalu Ram going. We are
not speaking about existence of motive or the incident
having taken place in retaliation, or the like, but we
are considering this aspect, for the only purpose of
judging about the fact, as to whether two witnesses
P.W.3, and P.W.4 were at all there at the time of
incident, obviously they had seen the incident, or
not, or are introduced. According to this witness when
they returned from Rampuriya police was available in
the village, but their statements were recorded on
third day of the incident, despite the fact, that
these two persons only are the persons, who claimed to
be the eye witnesses.
In our view, in this state of affairs, the
fact, as to whether the F.I.R. was lodged on 14th or
15th acquires greater significance, inasmuch as if it
31
is lodged on 15th, the possibilities are not ruled out,
that after P.W.3 and P.W.4 had arrived in the village
from Rampuriya, it was decided to introduce them as
eye witnesses, and then only F.I.R. was lodged.
Obviously, otherwise F.I.R. should have been lodged on
14th itself, and the circumstances already discussed
above do clearly tilt heavily towards the fact of
F.I.R. having been lodged on 15th.
It is well nigh possible that these two
witnesses had gone to Rampuriya to fetch their Bhua,
while Fula had gone to another village, and some
incident ensued between Moman Ram and Kalu Ram, being
Kalu Ram killing Moman with fire arm, and in
retaliation, accused persons might have killed Kalu
Ram, and believing this sequence of events, finding no
evidence, the two witnesses P.W.3 and P.W.4 are
introduced, to ensure conviction.
We are afraid, that thus the matter rests in
realm of suspicion, howsoever strong which may be, it
cannot take the place of proof. And as found above, in
our view, the evidence of three witnesses being P.W.1,
P.W.3 and P.W.4 do not at all inspire confidence, to
enable us to sustain conviction.
The result of the aforesaid discussion is,
32
that the appeal is allowed. The conviction and
sentence passed by the learned trial court against all
the appellants are set aside. They are acquitted of
all the above charges, they are on bail, their bail
bonds are cancelled, and they need not surrender.
( K.S.CHAUDHARY ),J. ( N P GUPTA ),J.