JUDGMENT
1. Eight persons in all including the present appellant Nathulal and seven other persons namely Meharban, Ghurai, Jagdish, Girdhari, Narainlal, Jagannath and Lakhan Ram faced their trial before Mr. R.P. Gupta, I, the then IV Additional Sessions Judge, Pilibhit in Sessions Trial No. A 142 of 1977 for offences punishable under Sections 147, 302, 201 and 364 of the I.P.C. By his judgment and order D/- 24-8-1978 the learned Sessions Judge did not find any case made out against the remaining seven persons except Nathu Lal and acquitted them. Against Nathulal, however, the charges under Sections 302 and 201, I.P.C. were found to be made out. He was accordingly convicted and sentenced to imprisonment for life on the first count and two years’ rigorous imprisonment on the second count. Now he comes up in appeal.
2. The prosecution case was that one Babu Ram was resident of village Simra Kesaupur, Police Station, Faridpur, district Bareilly, Ram Saran who is the first informant of this case, was a police constable posted at Budaun. The accused Nathu Lal and others who were implicated in this case, were all residents of village chhutkuna, which lies within the area of police stati on, Bisalpur, district, Pillibhit, Babu Ram was having illicit connection with the wife of Nathu Lal appellant and this fact was resented by Nathu Lal who did not like the visit of Babu Ram at his house. It appears that on 14-7-1976 Babu Ram went to village Chhutkuna. In the night between 14/15-7-1976 all the eight accused including Nathulal appellant were seen taking Babu Ram from the house of Nathulal tied up with a rope, which was held by acquitted accused Lakhan. Another acquitted accused Narainlal was holding a Banka. The culprits were all saying that they were taking Babu Ram to the police station, in view of the fact that he had brought dishonour to the family of Nathu Lal by entangling himself with his wife. It is however contended that rather than take him to the police station, they committed his murder the same night.
3. It also appears that Nathulal took his wife to village Rasula and left her somewhere and lodged a false report Ext. Ka-12 at police station. Bisalpur, District Pilibhit on 15-7-1976 with an allegation that his wife had been enticed away by Babu Ram on 14/15-7-1976. It also appears that this lady had found some opportunity and had sent an information of this incident to Ram Saran constable the first informant who is the brother of deceased Babu Ram through one Dwarka Prasad of village Madaria which adjoins village Chhutkuna. Ram Saran first went to his village Simra Kesaupur and obtained an information that on 14-7-76, the deceased Babu Ram had gone to village Chhutkuna. Thereafter Ram Saran reached village Chhutkuna, and met witnesses Net Ram, Chet Ram, Sumer and Shyam Behari who narrated the details of the incident to him. Then Ram Saran lodged the first information report Ext. Ka-1 at police station, Bisalpur on 20-7-1976 at 12.40 p.m. and this is the basis of the present case.
4. A search for the accused was made. Nathulal and his wife Jambati were not available at their village. On 21-7-1976 an information was received by the Station Officer to the effect that Nathu Lal was going towards the village, Chhutkuna from village, Agnapur. He was apprehended on the chak road and taken into custody. On interrogation, he disclosed the places where the Banka had been thrown, where the murder had been committed and blood could be found where the head duly chopped off was also thrown. On the basis of these statements discovery of these articles was made. Then the case was started.
5. In the District Hospital of Pilibhit, Dr. V. P. Agarwal, Physician District. Hospital, Pilibhit conducted the post mortem examination on the recovered head on 22-7-1976 at 3.00 p.m. It was a skull and the doctor was of the view that it was the head of an adult male. The glabella, zygomatic and superciliary arches, mastoid processes and the occipital protuberances were quite prominent. The maxilla was quite big and contained spaces for sixteen teeth. Only twelve teeth were present and the remaining four sockets were empty. The frontal sonirors were quite developed. The lower jaw was completely absent. From an inspection of this skull, the stature and the body built could not be made out nor any opinion could be given as regards the complexion of the individual. It may however, be mentioned here that this head was recovered wrapped up in a tahmad.
6. The prosecution examined in this case ten witnesses. Ram Saran is not an eyewitness. He received an information from Dwarka Prasad and on that basis he came to his own village Simra Kesaupur, made certain enquiries and went to village Chhutkuna and after verifying the facts lodged the first information report. He has only proved the first information report. He could not identify the head because it was not identifiable and strangely enough, the tahmad was not put up for identification before him and it is not established that it is the Tahmad of the deceased.
7. Sumer Nath (P.W. 2) and Shyam Behari (P.W. 3) were examined to prove the fact that the deceased was taken by the accused appellant and his associates tied up with a rope ostensibly to the Thana (Sic) and thereafter was not visible at all. These two witnesses have turned hostile and denied having seen anything. Their testimony is, therefore, of no avail. Dadey Ram (P.W. 4) is the witness of recovery of bloodstained earth and Manmohan Sahai (P.W. 8) is also the witness of recovery of Banka and the skull wrapped up in a Tahmad. P.W. 5 Chet Ram and P.W. 7 Net Ram are two witnesses, who like Sumernath and Shyam Behari, saw the deceased being led by Nathu Lal and his associates tied up with a rope to the thana but these witnesses were not believed by the Court below for very cogent reasons. P.W. 9 Hari Singh Sharma is the Investigating Officer and P.W. 10 Durga Prasad Awasthi has come to prove the report lodged in the thana on behalf of the accused appellant Nathu Lal regarding enticement of his wife by the deceased Babu Ram.
8. May be, we can start with the assumption that as between the deceased and the appellant Nathu Lal there was some sort of enmity, because the deceased was having some liaison with the wife of Nathulal. There is however hardly any evidence in support of it except a first information report proved by P.W. 10 Durga Prasad Awasthi, through which Nathulal had made an allegation to the police that his wife had been enticed away. This lady was very much available and it is alleged that she had sent an information to Ram Saran through one Dwarka Prasad and on the basis of which, Ram Saran could lodge the first information report which has given rise to the present case. No attempt was made to interrogate her. She would have been a very material witness in this case. Even if it is assumed that the accused appellant Nathulal did lodge a report, then it is not established that it was false. In any view of the matter, there is nothing on the record to show that Nathulal was at all responsible for the disappearance of the deceased. The head that was allegedly recovered is not shown to belong to Babu Ram. The Tahmad in which it was tied up, is not proved to be that of the deceased.
9. So far as witnesses Chet Ram and Net Ram are concerned, the learned Sessions Judge has noted in his judgment that Chet Ram was a resident of village Saidpur, which was about 12 or 14 kose away from village Chhutkuna. According to this witness, he first went to Netram and took him with himself and then both of them came to village Chhutkuna to purchase a she buffalo of Sumer Nath. Sumer Nath denies this fact. According to this witness the transaction could not be concluded. As against this, Netram says that they never wanted to purchase she buffalo of Sumernath. They only stayed at his house. He himself had started from his village in search of a she-buffalo and it was in village Maandara for the first time that he was informed that one Badshah Kayasth was possessed of a she-buffalo in village Chhutkuna which he wanted to sell and for that reason they had visited Badshah Kayastha and seen the she-buffalo. Netram’s brother’s daughter is married to Ishwari who is the brother of the deceased, Chetram and Netram are relations inter se. One of the co-accused Jagannath was also an accused in the case of murder of Bhawani and Chetram admitted that Bhwani belonged to his family. For those reasons, the learned Sessions Judge did not find it safe to place reliance upon the statements of these, two witnesses and rightly so.
10. To our mind, there is absolutely no evidence to connect Nathulal with the alleged murder of Baburam which fact itself is not proved. There is no question of Nathulal being guilty of an offence under Section 201 of the Indian Penal Code either. We do not find any justification for the learned Sessions Judge’s order directing acquittal of the remaining seven accused on both these charges and yet convicting Nathulal for the two offences. Their cases are similar except for the fact that Nathulal is alleged to have had some enmity with Babu Ram while the others are not said to be having that. In any view of the matter, no case is made out against the appellant and the appeal has got to be allowed.
11. In the result, the appeal is allowed. The conviction of Nathulal under Section 302, I.P.C. and under Section 201, I.P.C. as returned by Sri R. P. Gupta I, the then IV Additional Sessions Judge, Pilibhit is set aside, and so also the sentence passed against him. Appellant Nathulal is acquitted on both the charges. He is on bail and need not surrender. His bail bonds and sureties shall stand discharged.