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Supreme Court of India
Surendra Pratap Chauhan vs Ram Naik & Ors on 13 November, 2000
Author: R Lahoti
Bench: R.C. Lahoti, Shivaraj V. Patil.
           PETITIONER:
SURENDRA PRATAP CHAUHAN

	Vs.

RESPONDENT:
RAM NAIK & ORS.

DATE OF JUDGMENT:	13/11/2000

BENCH:
R.C. Lahoti, & Shivaraj V. Patil.




JUDGMENT:

R.C. Lahoti, J.

L…I…T…….T…….T…….T…….T…….T…….T..J

Ram Naik, Lalta and Kanta, the three accused-respondents
who are real brothers were convicted under Section 302/34
IPC and sentenced to imprisonment for life by the Second
Additional Sessions Judge, Jaunpur by judgment dated
17.2.1979. A Division Bench of the Allahabad High Court, by
its judgment dated 3.5.1991, allowed the appeal preferred by
the accused-respondents and acquitted them of the charges.
Surendra Pratap Chauhan, son of the deceased, has preferred
this appeal by special leave under Article 136 of the
Constitution laying challenge to the acquittal recorded by
the High Court.

The deceased Komal Ram, his father Ram Bharose – who is
also an eye-witness to the incident and who lodged the FIR
also, Zhamman (P.W.2) and Baijnath (P.W.5) – the two
eye-witnesses and the three accused-respondent are all
residents of village Saravni Purbi Patti, P.S. Kerakal.
There was a civil litigation relating to a land dispute
going on since 1966 between Ram Bharose (P.W.1) – the father
of the deceased Komal Ram and the accused Ram Naik, wherein
Ram Bharose had succeeded in the Trial Court. Ram Naik had
preferred an appeal in the year 1976 which was to come up
for hearing on 19.5.1978. Komal Ram, the deceased, was
looking after the litigation on behalf of his father, Ram
Bharose. On 19.5.1978 also Komal Ram was scheduled to leave
for the city where the appeal was to be heard. Komal Ram
was a primary school teacher by profession. At a distance
of about 100 yards from the residential house of Ram Bharose
is situated his agricultural land which has also a well.
Zhamman(P.W.2) and Baijnath(P.W.5) have their houses
situated in close vicinity of Ram Bharoses house in the
village.

According to the prosecution, sugarcane crop was sown in
the agricultural land of Ram Bharose. For two days
preceding the date of the incident the crop was being
irrigated from the well. For this reason and it being the
summer season, Komal Ram used to sleep on a cot by the side
of the well while Ram Bharose, Zhamman and Baijnath used to
sleep at their respective houses in the village but outside
the houses as the villagers do during the summer. At about
3.30 a.m. on the night between 17th & 18th May, Ram Bharose
was awakened by Komal Rams screams. He too raised hue and
cry which attracted Zhamman and Baijnath. They started
running towards the well. Each one of them had a torch in
his hand. They reached near the cot of the deceased Komal
Ram. Though it was moon-lit, the trio flashed their torches
and saw the three accused persons and an unidentified person
standing surrounding Komal Ram. Accused Ram Naik was armed
with a gandasa (a butchers heavy knife, also used for
chopping fodder-grass). The other two accused and the
unidentified person were empty- handed. The three,
excepting Ram Naik, had caught hold of Komal Ram keeping him
pressed on the cot in the lying position while Ram Naik was
rasping Komal Rams throat with gandasa, i.e., using the
gandasa like a saw or file. The three accused and the
fourth person – all took to their heels having seen Ram
Bharose and the two witnesses. Komal Ram was found dead
having sustained a severe cut wound on the neck and another
injury on the left hand. They returned back to the village.
One Shriram Yadav helped Ram Bharose by preparing a written
report of the incident which was taken to the police station
by Ram Bharose and on its basis FIR (Exhibit P-4) was
recorded by Sheikh Faikoo, the constable Mohrrir posted at
the police station at 6.10.a.m. An offence under Section
302 IPC was registered and the usual investigation
commenced, the details whereof are not very material.
Autopsy on the dead body was conducted by Dr. R.P.
Rastogi. On completion of investigation the three
accused-respondents were charge-sheeted.

On trial, the learned Sessions Judge found the testimony
of Ram Bharose(P.W.1), Zhamman(P.W.2) and Baijnath(P.W.5)
trustworthy and based conviction of the three
accused-respondents thereon. The High Court has found the
occular evidence not worthy of credence and the prosecution
story shaky. In the opinion of the High Court it was a
blind murder and the accused-respondents have been falsely
implicated on account of long pending litigation between the
complainant and the accused persons.

We have heard the learned counsel for the appellant and
also the learned counsel for the State. Having heard their
submissions and having gone through the statements of the
several witnesses as also the other material available on
record we are of the opinion that the finding of acquittal
as arrived at by the High Court is not liable to be
interferred with.

As already stated, strained relationship between the
three accused-respondents and the complainant Ram Bharose is
an admitted fact. Ram Bharose(P.W.1) has also admitted that
Zhamman and Baijnath, the two eye-witnesses were his caste
fellows. In the civil litigation, Zhamman and Baijnath had
appeared as his witnesses against Ram Naik. The litigation
had been going on for about 12 years prior to the date of
the incident. Ram Naik having lost in the first round of
litigation, had preferred an appeal and was prosecuting the
same. Apparently, nothing had happened immediately which
could have prompted or motivated the three
accused-respondents to murder Komal Ram. If there would
have been any such apprehension on the part of the deceased
or the complainant, the deceased Komal Ram would not have
gone to sleep alone near the well. At the same time, merely
because the relations between the accused persons and the
complainant were strained leading to groupism in the
village, the testimony of the eye-witnesses is not to be
discarded though it needs to be scrutinised with caution so
as to eliminate the possibility of any false implication.

According to Ram Bharose(P.W.1), he was awakened by the
shouts of Komal Ram. He got up and ran towards the well.
His own cries awakened Zhamman and Baijnath who also ran
towards the well. Each one of the three had a torch in his
hands. The torches were flashed when they had reached near
the deceased. He saw the accused Lalta holding one arm of
the deceased and the unidentified culprit holding another
arm of the deceased. According to him the accused Ram Naik
was also keeping pressed with his foot one hand of the
deceased. The accused Kanta had caught hold of the face of
the deceased and was keeping it pressed. According to Ram
Bharose one of the culprits had climbed over the legs of the
deceased though he was not able to name who he was. Ram
Bharose and the two witnesses had reached near the cot of
the deceased almost simultaneously. Other villagers also
reached there but a little later. During cross-examination,
he stated, when he and the witnesses had reached near the
cot, the accused persons were already running away and were
at a distance of about 15 lathas (one latha being about 5 to
6 feet).

According to Zhamman(P.W.2), he having arose at the
cries of Ram Bharose, picked up his torch and followed Ram
Bharose, who was running towards the well. From 10 to 12
paces away from the well he saw the accused Ram Naik rasping
the throat of Komal Ram with gandasa and three other persons
including Lalta and Kanta, accused keeping the deceased
Komal Ram pressed on the cot. He had not heard the voice of
the deceased Komal Ram but had heard the cries of Ram
Bharose only. None had lighted the torches while running
towards the well as moon-light had created some visibility.
The two witnesses ran after Ram Bharose and had reached near
the cot of the deceased. He stated to have seen the accused
Ram Naik rasping Komal Rams throat.

Baijnath(P.W.5) states to have been awakened by the
cries of Ram Bharose and Komal Ram. He also ran towards the
well with a torch in his hands. He could see nothing so
long as he was running towards the well. He did not light
his torch on the way. According to him neither he nor Ram
Bharose nor Zhamman lighted any torch as it was not required
on account of twilight visibility being available. He saw
the deceased Komal Ram lying on the cot, Kanta and Lalta
accused and an unidentified person gripping the deceased
keeping him pressed on the cot while Ram Naik was cutting
Komals throat with gandasa.

Dr. R.P. Rastogi who conducted the post-mortem
examination of deceased Komal Ram at 3.45 p.m. on 18.5.1978
found an incised wound 22 cm x 3½ cm x ½ cm on the neck of
the deceased. The neck was joined with skin on the back
side and right side. The incised wound was behind the neck
going to the right from the left, about 5 cm below the right
ear. The thyroid cartilage was cut parallel to chin on the
level of 4th vertebra of the neck. The bone was entirely
cut. The borders of the wound were clean cut and multiple
tags of skin were present. There was yet another incised
wound 17 cm x 3 ¼ cm x bone deep extending from behind the
forearm to the back of the palm of the left hand between
little and ring fingers. The 4th metacarpal bone and left
radius bone were cut. The borders of the wound were clean
cut. The cause of the death was shock and haemorrhage due
to the neck injury. The death was likely to have taken
place at 3.30 a.m. The injury was sufficient in the
ordinary course of nature to cause death. Both the injuries
could have been caused by a weapon like gandasa. During
cross-examination, Dr. Rastogi stated that the neck injury
seemed to have resulted not by one blow but by several
blows. He stated that if a sharp weapon was rasped at one
place then tags would not be left at the rasped place and
the wound would be clean cut. In answer to a Court
question, Dr. Rastogi stated that if the neck be cut by one
blow then due to the force of the same becoming light on
being inflicted the upper surface would be clean cut and the
tags would remain at the other end.

The weapon of the offence was not recovered.

The nature of the injury on the neck, as described by
Dr. Rastogi, renderes it highly probable that heavy blow or
blows, one or two, were dealt with by sharp cutting heavy
weapon, may be a gandasa, resulting into instantaneous death
of the deceased. By the same or a similar weapon the
deceased sustained an injury on the hand also. The medical
evidence does not suggest the neck of the deceased having
been rasped, i.e., by using like a saw, a weapon like
gandasa.

The story as narrated by Ram Bharose, Zhamman and
Baijnath does not fit in with the medical evidence. The
three witnesses state Ram Naik rasping the neck of the
deceased while two co-accused and one unidentified person
were leaning over the victim catching hold of or pressing
the hands, legs and face of the deceased. The story of
rasping the neck appears to have been introduced by the
witnesses with dual purpose. Firstly, rasping the neck
would take time and enable the witnesses to identify the
assailants. Secondly, the act of rasping the neck would
certainly be resisted by the victim who would not remain
stationary and therefore the two co-accused and an
unidentified person can be introduced in the incriminating
story playing the part of holding the victim tied to the
cot. None of the witnesses explains how the victim
sustained the injury on the hand. Each one of the three
eye-witnesses states to be sleeping with a torch by his
side. Each of the witnesses brought his torch in the Court
on the date of his examination and showed the torch to the
Court. Each of the torches is a three-cell torch, i.e., a
powerful one. Ordinarily, people in the village do not
sleep accompanied by torches unless it is customary in the
village to do so! There is contradiction in the testimony
of Ram Bharose and Baijnath whether the torches were lighted
or not. Ram Bharose and Zhamman have contradicted each
other on the point at which the torches were flashed __
while running towards the well or when the witnesses had
reached near the cot of the deceased. It was just moonlight
even if the moon was there in the sky. If the witnesses had
torches in their hands and they were running towards the
well on the village path or through the fields the natural
impulse would be to flash the torches so as to make the path
visible and also to attempt to have a view of the place of
the incident wherefrom the cries had emanated. If the
torches were lighted, the assailants would not keep on
standing but would rather take to their heels in which case
they would not have been identified. The High Court is
right in observing that the case appears to be one of blind
murder and false implication of the accused persons who are
three real brothers so as to avenge the enmity generated by
the land dispute.

Ordinarily, Ram Bharose would have rushed to the police
station and narrated the incident orally to the constable
Mohrrir for the purpose of recording the FIR. However, a
written report prepared by Shriram Yadav was taken to the
police station. It is surprising that the written report
carried by Ram Bharose and delivered at the police station
has not been exhibited. Shriram Yadav, the scribe of the
report, has also not been examined. According to Shiekh
Faikoo(P.W.6) there was only one FIR, the one in question,
lodged at the P.S. on that day. The General Diary in which
the FIR was recorded was thus open and so available for the
whole day. No record has been produced to show when the
copy of the FIR was despatched to the jurisdiction
Magistrate in compliance with S.157 Cr.P.C.. We are not
recording any finding that the FIR in the case was made
belatedly and then ante-timed; we are only pointing out at
a few likely holes left unplucked by the prosecution and
hence perceptible in the facts and circumstances of the case
at hand.

The High Court has on an evaluation of the evidence
found the ocular evidence untrustworthy and discarded the
prosecution version of the incident in so far as it relates
to the accused-respondents. We too are not inclined to take
a different view. The unnaturality of the story attributing
collective role to four assailants apparently with a view to
embroil as many, higher probability of the assailants being
not available by the side of victim improbablising their
identification, more likelihood of the incident being a
hit-and-run crime as reflected by medical testimony, coupled
with other infirmities in the prosecution case evaluated in
the light of strained relations between the parties anterior
to the incident persuade us not to interfere with the
finding recorded by the High Court. The acquittal of the
accused-respondents has to be sustained.

The appeal is dismissed. The judgment of the High Court
acquitting the accused-respondents is maintained. The
accused- respondents are on bail. The bail bonds are
discharged.


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