JUDGMENT
Palok Basu, J.
1. This is an appeal filed by the accused Ram Raj Singh, Zaki-ullah, Rahmat, Vijai Bahadur, Uma (since dead), Shyam Narain, Shyam Ji and Ram Dhani against the judgment and order dated 23-12-1982 convicting them Under Section 302, IPC and sentencing each of them to undergo life imprisonment passed by the Sessions Judge, Gorakhpur.
2. The appellants were charged Under Section 302, IPC for having committed the murder of Brahma Singh in the night of 26/27-6-1976, at about 12.00 in the night, in villages Saraiya, P. S. Belipur, district Gorakhpur.
3. After hearing the learned counsel for the appellants and the learned Additional Government Advocate for the State and perusing the record of the case on 6-3-1991, the appeal was allowed. We now proceed to give the reasons therefor.
4. The prosecution case is that accused Ram Raj Singh, who is the real brother of the deceased Brahma Singh, was employed in the Military and was away from his home for quite sometime. During his absence, the deceased Brahma Singh is said to have developed illicit relations with his wife. After Ram Raj Singh returned home on retirement, Brahma Singh got married. Their relations became strained. About one year prior to this occurrence, Brahma Singh was assaulted by Ram Raj Singh, Ram Dhani and Vijai Bahadur. A case was registered against them and Ram Raj Singh was arrested. He was released on bail about one month and ten days prior to this occurrence. After his release on bail, Ram Raj Singh became a deadly enemy of Brahma Singh.
5. Further case of the prosecution is that Brahma Singh, apprehending danger from Ram Raj Singh, allegedly collected a Panchayat in his village on the night of occurrence in the open space in front of the ‘baithak’ of Sangram Singh alias Samgam Singh, who was Ex. Pradhan of Gaon Sabha. In the Panchayat, besides Sangram Singh, Ram Awadh Singh, Pradhan and other persons of the village and some residents of other villages also were present. The deceased and the
accused persons were also there. Smt. Rumali Devi, wife of Brahma Singh, was also watching the proceedings of the Panchayat. In the course of the proceedings of Panchayat, hot words and abuses were exchanged between the accused Ram Raj Singh and the deceased Brahma Singh. Allegedly, Ram Raj Singh became violent and instigated the other accused to do away with Brahma Singh. On this instigation, Brahma Singh was attacked by the accused Shyam Singh, Zaki-ullah, Rahmat, Vijai Bahadur, Ram Ji Singh, Shyam Ji with lathis. Meanwhile, the accused Uma and Ram Dhani brought a shot gun and a pistol respectively with which they fired on Brahma Singh, who died. Thereupon Ram Raj allegedly said that it was not proper to leave the dead body there and suggested that the same should be disposed of. Acting on his suggestion, the accused Vijai Bahadur brought a Charpai from the Osari of Sangam Singh alias Sangram Singh. The dead body of Brahma Singh was put on the Charpai and was taken away towards north. Nobody dared to go to the Police Station in the night for lodging the report. A F.I.R. was lodged by Smt. Rumali, the wife of the deceased, on the next day, in the morning at 6-30 a.m., at P. S. Belipar.
6. S. I. Ayodhya Nath Misra was present at the Police Station and was acting as Incharge. He took up the investigation of the case and interrogated Smt. Rumali Devi and Vindhya Chal at the Police Station itself. Thereafter he proceeded to the place of occurrence and after interrogating the witnesses present, completed all other formalities. He collected blood from the place of occurrence. He then proceeded towards the Chak-Road following the track of blood drops on the way. Proceeding still further he reached the field of Dhanraj where also he found a pool of blood. Again the blood stained and plain earth was collected from there by him. The track of blood drops further took him to river Rapti by the side of village Barajuwa. Some blood was found by the side of the river also which was collected by him.
7. A net had been spread in the river bed by S. L. Raj Nath Gautam before S. I. Ayodhya Nath Misra reached there. S. I. Gautam was sent there in advance in search of dead body. Blood stained ‘Baanh’ of Charpai was recovered from the river bed with the help of the net. It was collected and sealed. He also found a portion of the ground washed with water on the river side near the place where some blood was found.
8. The prosecution case further is that on 28-6-1976, the accused Zaki-ullah was arrested by S. L. Laik Ahmad of P. S. Rajghat and Shiv Adhar, P.W. 6, the S.O. of P.S. Rajghat interrogated Zaki-ullah at the Police Station from whom he learnt that the accused was involved in the murder of Brahma Singh. He sent its information to P.S. Belipar through Police Constable, Om Prakash, who met S. I. Ayodhya Nath Misra at Namsharh chauraha. He conveyed the information to him. On this information S. I. Ayodhya Nath Misra went to P. S. Rajghat and interrogated the accused Zaki-ullah, who gave information that the arm and head of dead body of Brahma Singh had been burried in the bed of Rapti River in knee deep water and his body had also been left in the river bed and that he could get the same recovered. Accused Zaki-ullah led the police party and the witnesses to river Rapti near village Domingarh. He entered inside river bed, removed sand from the bed at one place and took out the burried head and arm as well as the body which was then packed in a gunny bag by S.I. Ayodhya Nath Misra. After completing the other necessary formalities, the sealed dead body and parts thereof recovered from the bed of river Rapti were sent for post-mortem. The entire body of Brahma Singh was sent for post-mortem examination which was conducted on 29-6-1976 at 4-30 p.m. at Gorakhpur by P.W. 3 Dr. M. N. Gope, Superintendent, District Hospital, Gorakhpur who found 8 incised wounds, 4 lacerated wounds, 7 punctured wounds and one lacerated gun shot wound. It is said that the body was identified by deceased’s relatives and other witnesses. After completing the investigation, charge-sheet was submitted again.
9. The accused did not plead guilty and attributed this false implication due to enmity.
10. Sri D. S. Tewari has been heard for the appellants, while Sri A. K. Dwivedi has argued the matter on behalf of the State. The entire record has been examined.
11. In order to prove the prosecution case, the informant Smt. Rumali Devi, wife of deceased Brahma Singh, was examined as P.W. 1. P.W. 2 Vindhyachal is the real brother of the deceased, who was also an eyewitness to the occurrence. P.W. 5 Sangram Singh is another eye witness. The other witness P.W. 7 Palakdhari Singh and P.W. 8 Khusar Singh are witnesses of recovery of the dead body. Besides examining Dr. M. N. Gope, who performed an autopsy on the dead body of Brahma Singh, and the Investigating Officer Ayodhya Nath Misra, P.W. 16, the other witnesses are formal in nature.
12. The main thrust of the arguments of the learned counsel for the appellants was that there was a conflict between the ocular and medical evidence for which the oral testimony is unworthy of credence. The medical evidence does not corroborate eye-witnesses, account as given by the prosecution witnesses thereby casting a grave doubt on the authenticity of the prosecution case. Dr. M. N. Gope, P.W. 3, who performed autopsy on the dead body of Brahma Singh found 9 incised wounds, 4 lacerated wounds, 7 punctured wounds and one fire arm injury on the dead body. He proved the post-mortem report which was exhibited as Ex.Ka-2. If we go through the eye-witnesses account as given by P.W. 1 Smt. Rumali Devi, wife of deceased, P.W. 2 Vindhyachal, the real brother of the deceased, and P.W. 5 Sangram Singh, Ex-Pradhan of the village Saraiya, we find that all of them were specific that the assault was committed by lathies and fire-arms. There is no mention of use of any sharp edged weapon. It is also not there that Brahma Singh was assaulted with a sharp edged weapon by accused or by any of the persons accompanying them. Dr. M. N. Gope, P.W. 3, has stated on oath and has also mentioned in the postmortem examination report that all the injuries including the punctured wounds were ante-mortem injuries The evidence of the medical expert, therefore does not tally with the eye-witnesses account. It is, therefore, obvious that there is a great conflict between the evidence of eye-witnesses and the medical evidence. The medical evidence does not corroborate the ocular evidence which creates a grave doubt on the credibility of the eyewitnesses.
13. An attempt appears to have been made by the prosecution to show that the punctured wounds might have been postmortem injuries inflicted within five minutes of the death of Brahma Singh. The Doctor, who performed the autopsy, has opined that if the injuries are inflicted within five minutes of the death of a person, even the post-mortem injuries will give an appearance like ante-mortem injuries. It was, therefore, submitted that notwithstanding the description of punctured wounds having been given by the Doctor in his post-mortem examination report, the punctured wound may be postmortem injuries inflicted within minutes after the death of Brahma Singh. It is therefore, to be assessed whether there is convincing evidence to the effect that punctured and incised wounds might have been inflicted within five minutes of the death of Brahma Singh.
14. In the FIR lodged by Smt. Rumali Devi, it has been stated that Ram Dhani and Uma, after firing at his husband, said that he was dead. It was thereafter that the suggestion came from Ram Raj Singh not to leave the dead body there. On his suggestion, a cot was brought from the Osara of Sangam by Vijay Bahadur Singh. After putting the dead body on the cot, all the accused proceeded towards north. In her statement on oath also, she has reiterated this fact. She has, however, tried to improve in her statement by saying that after being hit by the fire arms, her husband was breathing slightly and so Ram Raj Singh pressed him with his Lathi until he was dead. It was thereafter that the dead body of Brahma Singh was taken on a cot brought by Vijai Bahadur from the Osara of Sangam after pushing one Parasuram from the cot. Parasuram has not been examined as a witness in this case. The body of Brahma Singh was then taken on the cot towards the north. It is not clear from the evidence as to at what place the punctured wounds were caused. However, if we take all these events into consideration, it becomes clear that cot was brought from the Osara of Sangam after making it certain that Brahma Singh was dead. It was thereafter that his dead body was put on the cot and taken towards north. The punctured wounds on the dead body were not caused in the visibility of eye-witnesses, otherwise the witnesses would have certainly deposed to have seen the accused inflicting punctured wounds on the dead body. Therefore, we are not satisfied that the punctured wounds were inflicted within five minutes of the death of Brahma Singh. Thus, the prosecution has failed in establishing that because the punctured wounds were caused within five minutes of the death of Brahma Singh, they looked like ante-mortem injuries in the appearance thereby giving an occasion to the Doctor to mention these punctured wounds also as ante-mortem injuries.
15. It is also important to note at this stage that whereas P.W. 1 Smt. Rumali Devi and P.W. 2 Vindhyachal, who are close relatives of the deceased, have stated that Brahma Singh was assaulted with lathi by all the accused excepting Uma and Ram Dhani, while P.W. 5 Sangram Singh has categorically denied the participation of the accused Rahmat Ali and Shyamji. Thus, we find that there is no satisfactory explanation of the punctured wounds, found on the body of deceased Brahma Singh. Also the participation of at least two of the accused, Rahmat Ali and Shyamji, becomes doubtful in view of the categorical denial by P.W. 5 Sangam Singh. Thus, the medical evidence does not corroborate the ocular evidence. Therefore, the eye-witnesses are unworthy of credence and no implicit reliance can be placed on their testimony.
16. The recovery of dead body, at the pointing out of the accused Zaki-ullah, is also doubtful in this case. It has come in the evidence of P.W. 6 Shiv Adhar Rai, who was posted as S.O., P.S. Rajghat, that Zaki-ullah was arrested by S.I. Laik Ahmad on 28-6-1976. During interrogation at the police station by him, he came to know his involvement in the murder of Brahma Singh. Information of it was sent to P.S. Belipar from where S.I. Ayodhya Nath Misra arrived at P. S. Rajghat and interrogated Zaki-ullah, who volunteered to give information regarding the dead body of Brahma Singh, which he and the other accused had concealed in the bed of river Rapti. He was taken there from where he dug out the dead body from the water of river Rapti.
17. We are, however, in the dark as in what connection the accused Zaki-ullah was arrested by S.I. Laik Ahmad. No attempt has been made either to examine the S.I. Laik Ahmad or to file relevant entry in the General Diary regarding his arrest. Further the information regarding the arrest of Zaki-ullah from P.S. Rajghat was sent to P.S. Belipar through the constable, Om Prakash, who met the S.I., Ayodhya Nath Misra, at the crossing of Nausar Chauraha. Even constable Om Prakash of P. S. Rajghat has not been examined. In the circumstances, the arrest of Zaki-ullah accused becomes highly doubtful. The recovery witness P.W. 7 Palakdhari could not say whether the accused Zakiullah, present in court, was the same person, who had dug out the dead body from the river bed of Rapti. P.W. 8 Khusar, who is another witness of recovery, is resident of another village Garhawa, which is about 4 to 5 miles on the south of Nausar Chauraha. It was on his own that he accompanied the police party and reached the river Rapti. He did not know the accused Zaki-ullah from before. When the dead body was recovered, the persons present told him that the man, who recovered the dead body, was Zaki-ullah. It is nowhere mentioned in his statement that he identified Zaki-ullah in the court as the person who had dug out the dead body in his presence. It is also important to note that if a large number of persons belonging to the village Saraiya were present there at the time the dead body was dug out by the accused Zaki-ullah, why none of them was made an eye-witness to the recovery and why P.W. 7 Palakdhari Singh, resident of Badhagarha, and P.W. 8 Khusar of village Garhwa were selected to be the witnesses of recovery. In the circumstances, the recovery of dead body of Brahma Singh at the pointing of the co-accused Zaki-ullah becomes highly doubtful.
18. Holding of Panchayat in this case is also very doubtful. There was no occasion for holding the Panchayat by Brahma Singh. Simply because he apprehended danger from the hands of accused Ram Raj Singh, it cannot be believed that there was an occasion to hold Panchayat. There was no property dispute among the brothers. They were living separately for quite sometime before the incident. There was also no joint property about which there could be any dispute between them. Thus, there was no occasion for holding the Panchayat. Further, the Panchayat could not be held without prior intimation to the other party. Admittedly, Ram Raj Singh had no prior information of the holding of Panchayat. There is nothing on record to establish that he had also agreed for the Panchayat and to be there. It cannot be believed that he along with the other co-accused reached there of his own.
19. Although Ram Awadh, Pradhan of the village, was also present in the Panchayat, he has not been examined as a witness. Similarly, the Chowkidar, Sahbul, who, according to P.W. 1 Smt. Rumali Devi, was also present, has not been examined. They would have been the best persons to depose regarding the holding of Panchayat. Thus, the fact that the Panchayat was held, as alleged by the prosecution, also becomes very doubtful.
20. Emphasis was laid on the testimony of P.W. 5 Sangram Singh, Ex-Pradhan of village Saraiya. According to the prosecution, a Panchayat was held in front of his Baithak. If we go through his entire statement, we find that he has given a wavering and half-hearted statement. He has stated that when he receded to his Osara, he heard the firing of 2-3 shots. It is also in his statement that he saw Ram Raj, Shyam Nain and Vijai weilding Lathi, but he could not say as to who others were along with them. He claims to have intervened in the fight in which he also got a Lathi blow. Thereafter he went inside his Osara. It is also important that in his cross-examination he has stated that before the Marpit started, there was an altercation between accused Ram Raj Singh and deceased Brahma Singh. He, however, could not give an account of it nor could say that there was an exchange of abuses. All this creates a grave doubt in his presence in the Panchayat, It is also very important that although he claims to have received a Lathi blow, he did not mention it to the Investigating Officer in his statement Under Section 161, Cr. P.C. nor he was medically examined. He has admitted that it was for the first time that he was saying so. P.W. 1 Smt. Rumali Devi has also stated that when Sangram Singh intervened in the fight, he also received Lathi blows on his arm and back. Had it been a fact, Sangram would certainly have mentioned this fact to the Investigating Officer and also got his injuries examined. In the circumstances, we are not satisfied that Sangram was present in the Panchayat. This along with other attending facts and circumstances, as mentioned above, regarding holding of Panchayat itself becomes a doubtful event.
21. Whether the dead body recovered from the river Rapti was of Brahma Singh is also very doubtful. Admittedly P.W. 1 Smt. Rumali Devi, wife of deceased Brahma Singh, did not go to the river. She admits that she did not see the dead body. P.W. 2 Vindhyachal, the real brother of the deceased, claims to have seen the dead body. He, however, states that the eyes were not present in that body which he was shown. The other witnesses including the Doctor have stated that the eyes were present in the dead body dug out from the river bed of Rapti. It is also in the statement of Dr. Gope that in the absence of the eyes, the severed head cannot be identified. There is no dispute that both the ears and nose from the recovered head were not present. In the circumstances, it was difficult for Vindhyachal to have identified the head as of his brother because of his own saying the eyes were not there and without eyes the identity of the deceased could not be fixed. P.W. 1 Smt. Rumali Devi claims to have heard 6 or 7 fires being shot from the fire arms. The other witnesses have stated that there were only two fires from the Katta and the gun. She had further stated to have gone to the Police Station alone for lodging the F.I.R. P.W. 2 Vindhyachal, however, claims that he had accompanied Smt. Rumali Devi for lodging the report. It is also important to note that P.W. 2 Vindhyachal, who is the real brother of the deceased, has stated that he himself did not see the accused Uma and Ram Dhani firing the shots from their respective arms at the deceased. He claims to have heard the firing of shots from his house. In these circumstances, the presence of this witness also at the Panchayat and to have seen the occurrence becomes doubtful.
22. It may also be mentioned that admittedly, Ram Raj Singh had lodged a report regarding his assault against the deceased Brahma Singh and the co-accused Shyam Nain and Uma about one and half years prior to this occurrence. In the circumstances, it is difficult to believe that the co-accused Shyam Nain and Uma would have joined hands with Ram Raj Singh in the assault of Brahma Singh. This also makes the participation of Shyam Nain and Uma in the murder of Brahma Singh doubtful.
23. A few other facts that have come in evidence also need to be highlighted. All the eye-witnesses including Smt. Rumali Devi, P.W., have stated that when altercation between the accused Ram Raj Singh and the deceased started, the co-accused Uma and Ram Dhani left Panchayat but soon thereafter returned there armed with a gun and a country made pistol respectively. This fact, however, does not find place in the FIR lodged by Smt. Rumali. It can also not be believed that the dead body of Brahma Singh claimed to have been buried by the co-accused Zaki-ullah in the flowing river Rapti would have remained imbedded there itself despite the current of flowing river. It was not tied with any stone, sand bag or any other heavy load. Hence in all probability it must have shifted the place if not floated down the current of the river. In the circumstances, alleged recovery of the dead body in the flowing river bed from the same place where it was alleged to have been buried by Zaki-ullah becomes further doubtful. Lastly, if the incised and punctured wounds found on the body of Brahma Singh are ignored, the four simple lacerated wounds on the head of the deceased which had not caused fracture or concussion or coagulation of blood, could not result in his falling unconscious or dead. In the FIR there is no mention of how many shots had hit the deceased. But since the Doctor in his deposition said that the injuries sustained may have been caused by one fire, the eyewitnesses were made to say that one fire had hit the deceased. All the aforesaid reasons cast a serious doubt in the story of assault as set out by the prosecution witnesses rendering the whole case suspicious and the appellants are entitled to have benefit of that doubt. The appeal has to succeed.
24. In view of the above discussions, the appeal is allowed. The conviction and sentences of the appellants are set aside, they are acquitted of the charges framed against them. All the appellants are on bail, their bail bonds are discharged, they need not surrender.