{"id":20533,"date":"2010-07-28T00:00:00","date_gmt":"2010-07-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-swaroop-vs-state-of-u-p-on-28-july-2010"},"modified":"2019-02-09T19:06:39","modified_gmt":"2019-02-09T13:36:39","slug":"ram-swaroop-vs-state-of-u-p-on-28-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-swaroop-vs-state-of-u-p-on-28-july-2010","title":{"rendered":"Ram Swaroop vs State Of U.P. on 28 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Ram Swaroop vs State Of U.P. on 28 July, 2010<\/div>\n
Criminal Appeal No. 436 of 1982                                         Court No. 44\n   1. Ram Swaroop\n   2. Shri Krishna\n   3. Ram Kumar\n   4. Suresh.............................................Appellants\n                              Vs.\n   State of UP...........................................Respondents.\n\n\nHON'BLE YATINDRA SINGH, J.\n<\/pre>\n
HON’BLE SURENDRA SINGH, J.\n<\/p>\n<\/p>\n
1. This appeal is against the conviction and sentence dated 10.2.1982 passed by<\/p>\n
1st Addl. Sessions Judge, Shahjahanpur (the ASJ) in ST No. 481 of 1981.<\/p>\n
                                          THE FACTS<\/p>\n
2. An incident happened on 30.5.1981 at 19:00 hours. In this incident, Ram Autar<\/p>\n
(the Deceased) was killed. The FIR was lodged by his brother Jang Bahadur (the<\/p>\n
Informant). It was registered as case crime no. 59 of 1981 under section 302 IPC,<\/p>\n
police station Khutar, district Shahjahanpur.<\/p>\n
3. In the FIR, four persons namely Ram Swaroop (Appellant-1), Shri Krishna<\/p>\n
(Appellant-2), Ram Kumar (Appellant-3) and Suresh (Appellant-4) were named as<\/p>\n
the accused. They are jointly referred as the Accused.<\/p>\n
4. The parties are related to each other. The relevant pedigree is mentioned below:<\/p>\n
                                                  _______________ ______
\n                                            I                            I
\n             1st wife= Anokhey Lal = 2nd wife                  Ram Lal (DW-2)
\n                       I            _I_______________________________
\n                     Bhup Ram       I         I              I             I
\n                                 Laljit Rameshwar Ram Swaroop Shri Krishna
\n                                  I        (PW-5)            (A-1)       (A-2)
\n                                  I                                          I
\n                               __I____________                               I
\n                               I                   I                        I
\n         Rajesh Kumari = Jang Bahadur Ram Autar                             I
\n                (PW-2)            Informant       (Deceased)                I
\n                                      (PW-1)        ___________________I_____
\n                                                I          I           I       I
\n                                        Ram Kumar Suresh Ram Kishor Ram Naresh
\n                                                       (A-3)       (A-4)
\n                                                                                   2<\/span><\/p>\n<\/blockquote>\n
5. The allegations in the FIR are as follows:\n<\/p>\n
       Bhup Ram, son of Anokhe Lal from the first wife, has 1\/3rd share in the<\/p>\n
       property and the remaining share is with the others. He (Bhup Ram) is close<\/p>\n
       to the Informant side. It is because of this reason that Ram Swaroop<\/p>\n
       (Appellant-1) and Shri Krishna (Appellant-2) are not in good terms with<\/p>\n
       them;\n<\/p><\/blockquote>\n
       On 8.5.1981, the Informant’s father and Bhup Ram have purchased a<\/p>\n
       tractor. Since then, Appellants-1 and 2 have become in inimical terms with<\/p>\n
       them;\n<\/p><\/blockquote>\n
       Appellants-1 and 2 have also threatened to kill Bhup Ram. The Deceased<\/p>\n
       had challenged them that they cannot do anything to Bhup Ram;<\/p>\n
       Today, after cultivating the land, the Deceased had kept the tractor in front<\/p>\n
       of the house and came to the old house at 19:00 hours, where the<\/p>\n
       Informant’s children live.\n<\/p><\/blockquote>\n
       When he went inside to bring a cot, Appellant-1 started abusing him.<\/p>\n
       Appellants-2 to 4 exhorted to kill the Deceased. They got hold of the<\/p>\n
       Deceased and put him down;\n<\/p><\/blockquote>\n
       The Deceased cried for help. On hearing his cry, the Informant (PW-1),<\/p>\n
       Rameshwar (PW-5), and Ram Lal (DW-2) went inside the house. They saw<\/p>\n
       that the Accused had kept the Deceased down and Appellant-1 knifed him<\/p>\n
       then ran away;\n<\/p><\/blockquote>\n
       The Deceased died because of the knife injury.<\/p>\n<\/blockquote>\n
6. The police investigated the case and submitted the charge sheet.<\/p>\n
7. The case was committed to the sessions’ court and was numbered as ST No.<\/p>\n
481 of 1981.\n<\/p>\n
                                                                                    3<\/span><\/p>\n
8. The ASJ framed the following charges on 30.5.1981:<\/p>\n
      Ram Swaroop (Appellant-1) was charged under section 302 IPC;<\/p>\n
      Shri Krishna, Ram Kumar, and Suresh (Appellants-2 to 4) were charged<\/p>\n
      under section 302 read with section 34 IPC.<\/p>\n<\/blockquote>\n
9. Among the others, the prosecution filed the following documents:<\/p>\n
      Copy of the FIR dated 30.5.1981 (Ex Ka-3);<\/p>\n
      Written Report dated 30.5.1981 (Ex Ka-1);<\/p>\n
      Recovery memo of blood stained and plain earth dated 30.5.1981 (Ex Ka-<\/p>\n<\/blockquote>\n
      13);\n<\/p><\/blockquote>\n
      Postmortem examination report dated 31.5.1981 (Ex Ka-2);<\/p>\n
      Site Plan with the Index dated 31.5.1981 (Ex Ka-10).<\/p>\n<\/blockquote>\n
10. The prosecution examined the following witnesses:<\/p>\n
      Jang Bahadur (PW-1): Informant, an eyewitness;<\/p>\n
      Rajesh Kumari (PW-2): Eyewitness;\n<\/p><\/blockquote>\n
      Brij Bhushan Singh (PW-3): Constable, carried the dead body;<\/p>\n
      Dr. SC Gupta (PW-4): Doctor, conducted the postmortem;<\/p>\n
      Rameshwar (PW-5): Eyewitness;\n<\/p><\/blockquote>\n
      RS Verma (PW-6): Investigation Officer (IO).<\/p>\n<\/blockquote>\n
11. The statement of the Accused under section 313 CrPC were recorded on<\/p>\n
16.12.1981. They denied their involvement in the same and made the following<\/p>\n
statement:\n<\/p>\n
   (i) Appellant-1 denied his presence on the spot;<\/p>\n
   (ii) Appellant-2 stated that:\n<\/p>\n
             He was not permitting the father of the Deceased to irrigate the land.<\/p>\n
             Due to this, father of the Deceased was on inimical terms with him;
\n                                                                                4<\/span><\/p>\n
              He was implicated in this case for the aforesaid reason.<\/p>\n<\/blockquote>\n
   (iii) Appellants-3 and 4 stated that they were involved because of enmity with<\/p>\n
       their father (Appellant-2).\n<\/p>\n<\/p>\n
12. The defence examined the following witnesses:<\/p>\n
(a) Natthoo Lal (DW-1): Pradhan of the village deposed that:<\/p>\n
        He reached the spot at 23:00 hours;\n<\/p>\n
       Jang Bahadur (PW-1) reached the spot thereafter.<\/p>\n
(b) Ram Lal (DW-2): Brother-in-law of Anokhey Lal. He is the maternal uncle of<\/p>\n
PW-5, father of the Deceased as well as of Appellant-1 and 2. He deposed that<\/p>\n
Appellant-1 was in his house since before the incident.<\/p>\n
13. The ASJ by his judgement dated 10.2.1982 convicted the Accused and<\/p>\n
awarded them the following sentence:\n<\/p>\n
       (i)    Appellant-1 was awarded imprisonment for life under section 302<\/p>\n
       IPC;\n<\/p><\/blockquote>\n
       (ii)   Appellants-2 to 4 were awarded imprisonment for life under section<\/p>\n
       302 read with section 34 IPC.\n<\/p><\/blockquote>\n
Hence the present appeal.\n<\/p>\n<\/p>\n
14. During pendency of the appeal, the office gave report dated 9.7.2010 that Ram<\/p>\n
Swaroop (Appellant-1) and Shri Krishna (Appellant-2) have died. Their appeal is<\/p>\n
abated. The appeal survives for Ram Kumar (Appellant-3) and Suresh (Appellant-<\/p>\n
4). They are jointly referred as the Appellants.<\/p>\n
15. We have heard Sri PN Mishra and Sri Intekhab Alam, counsel for the<\/p>\n
Appellants, and Sri Arunendra Kumar Singh, AGA for the State.
\n                                                                                       5<\/span><\/p>\n
                                   THE DECISION<\/p>\n
16. The prosecution examined six witnesses. Out of these, three namely {the<\/p>\n
Informant (PW-1), Rahesh Kumari (PW-2) and Rameshwar (PW-5)} are<\/p>\n
eyewitnesses. Rest of them are formal witnesses.<\/p>\n
17. The AGA submitted that eyewitnesses have deposed that:<\/p>\n
              The accused were present on the spot;<\/p>\n
              All of them were involved in the incident;<\/p>\n
              The Deceased died due to the knife injury caused by Appellant-1;<\/p>\n
              The prosecution has proved its case beyond reasonable doubt;<\/p>\n<\/blockquote>\n
We have our doubts so far as the Appellants namely Appellant-3 and 4 are<\/p>\n
concerned.\n<\/p>\n<\/p>\n
                  No Eyewitness was Present at the Beginning<\/p>\n
18. According to the deposition of the Informant (PW-1) his wife Rajesh Kumari<\/p>\n
(PW-2) was present on the spot. However, her presence is not mentioned in the<\/p>\n
FIR. She is also not mentioned as an eyewitness on the spot. The prosecution<\/p>\n
version in the FIR is that the Informant’s children used to live in the old house but it<\/p>\n
neither means nor is there any mention that the Informant’s wife was present on<\/p>\n
the spot at the time of the incident. This creates doubt whether PW-2 was present<\/p>\n
on the spot at the time of incident.\n<\/p>\n<\/p>\n
19. The Informant (PW-1) has also deposed that whatever his wife (PW-2) told<\/p>\n
him, he wrote in the written report (Ex Ka-1). This indicates that PW-1 did not reach<\/p>\n
the place at the time of incident but reached there after the incident. His oral<\/p>\n
evidence may be hearsay.\n<\/p>\n
                                                                                    6<\/span><\/p>\n
20. The Informant (PW-1) and Rameshwar (PW-5) have deposed that:<\/p>\n
       They had two houses. One was old and the other was new.<\/p>\n
       The new house was about 250 paces from the old house;<\/p>\n
       The Informant, Appellants-1 and 2 alongwith their families used to live in the<\/p>\n
       old house;\n<\/p><\/blockquote>\n
       They were coming form the new house towards the old house when they<\/p>\n
       heard the cries for help of the Deceased.<\/p>\n<\/blockquote>\n
21. It is clear form the deposition of Informant (PW-1) and Rameshwar (PW-5) that<\/p>\n
they were not in the old house but were coming towards it. They reached the spot<\/p>\n
after they heard the cries for help of the Deceased. They were not there in the<\/p>\n
beginning and do not know how it began.\n<\/p>\n<\/p>\n
22. In our opinion, none of the eyewitnesses were there before the incident began.<\/p>\n
They reached after it ended or at best after it started.<\/p>\n
                             Doubt About Exhortation<\/p>\n
23. No one was present at the beginning of the incident. No one knows the real<\/p>\n
reason of the incident. It cannot be said that Appellant-2 to 4 exhorted their uncle<\/p>\n
Appellant-1 to kill the Deceased.\n<\/p>\n<\/p>\n
24. In our opinion, as none of the witnesses were present on the spot at the<\/p>\n
beginning of the incident, there are doubts whether any exhortation was given by<\/p>\n
Appellants -2 to 4. The only material evidence on record is, that Appellant-1 knifed<\/p>\n
the Deceased. But we are not concerned with him.<\/p>\n
                       Weak Motive — Some Other Reason<\/p>\n
25. In substance, the motive in the FIR is that:
\n                                                                                  7<\/span><\/p>\n
             Laljit (father of the Deceased and the Informant) had purchased a<\/p>\n
             tractor alongwith Bhup Ram;\n<\/p><\/blockquote>\n
             They were closed to Bhup Ram;\n<\/p><\/blockquote>\n
             Appellants-1 and 2 were jealous because of above reasons.<\/p>\n<\/blockquote>\n
The aforementioned motive is also broadly also deposed by the eyewitness too.<\/p>\n
26. Even if the motive is accepted, it is too weak a motive to commit the murder of<\/p>\n
such a close relative. No one would commit murder of real nephew or a cousin for<\/p>\n
this. The reason of the incident appears to be different: it could be what<\/p>\n
immediately happened before the incident. It could be some insult to Appellant-1 or<\/p>\n
sudden dispute on the spot but what was that is not known.<\/p>\n
                    Presence of Appellants 3 and 4 — Natural<\/p>\n
27. All eyewitnesses have deposed that:\n<\/p>\n
             The Deceased was knifed by Appellant-1;\n<\/p>\n
             Appellant-1 ran away thereafter.\n<\/p>\n<\/p>\n
28. Appellants- 2 to 4 were on the spot and were arrested on the same day.<\/p>\n
However, Appellant-1 was not arrested. He surrendered before the court on<\/p>\n
5.6.1981. This indicates that the deposition of the eyewitnesses that Appellant-1<\/p>\n
knifed the Deceased might be correct but we are not concerned with him and are<\/p>\n
concerned with only Appellants-3 and 4.\n<\/p>\n<\/p>\n
29. Admittedly Appellants- 2 to 4 resided in the old house. Their presence on the<\/p>\n
spot was natural.\n<\/p>\n
                       No Overt Act by Appellants – 3 & 4<\/p>\n
30. The ante mortem injuries of the Deceased are as follows:<\/p>\n
      (i)    Stab wound with incised margins 3 cm x \u00bd cm x chest cavity deep on
\n                                                                                     8<\/span><\/p>\n
      the part of left side of chest 4-1\/2 cm x medical and slightly above the left<\/p>\n
      nipple (at 10 O’ clok position). The direction was straight forward. The III and<\/p>\n
      IV ribs, under the injury have been cut.<\/p>\n<\/blockquote>\n
      (ii)   Old healing wound \u00bd cm x \u00bd cm x over medial malleolus of right foot<\/p>\n
      painted with nail polish.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
31. It indicates only one knife injury. The prosecution case is also that there was<\/p>\n
only one knife blow.\n<\/p>\n<\/p>\n
32. There is no evidence of exhortation; there is no credible evidence of any overt<\/p>\n
act by the Appellants.\n<\/p>\n<\/p>\n
33. It was said the Appellant-3 and 4 gave exhortation but there is no evidence for<\/p>\n
the same. There presence on the spot is natural: they reside in the same house.<\/p>\n
No one knows how the incident started. The motive is too weak. There is no<\/p>\n
reasons for Appellants-3 and 4 to join in the crime. There is no credible evidence<\/p>\n
that there was any overt act on their part. Considering the circumstances, it cannot<\/p>\n
be said that there was any common intention to commit the crime.<\/p>\n
34. Appellant-2 has four sons: Two are appellant-3 and 4; Two others are Ram<\/p>\n
Kishore and Ram Naresh. They were minors at the time of the incident. It is just<\/p>\n
possible that entire family of Appellant-2 was added leaving out the minors sons.<\/p>\n
35. In our opinion, the prosecution has not been able to prove its case beyond<\/p>\n
reasonable doubt against the Appellants.\n<\/p>\n<\/p>\n
                                     ORDER<\/p>\n
36. In view of our conclusions, Ram Kumar and Suresh (Appellants-3 and 4) are
\n                                                                                 9<\/span><\/p>\n
given benefit of doubt and are acquitted. The conviction and sentence by order<\/p>\n
dated 10.2.1982 passed by 1st Addl. Sessions Judge, Shahjahanpur in ST No. 481<\/p>\n
of 1981 is set aside. They are already on bail. Their bail bonds are cancelled and<\/p>\n
sureties are discharged. They need not surrender.<\/p>\n
Date: 28.7.2010
\nSKS
\n                                                                                 10<\/span><\/p>\n
Criminal Appeal No. 436 of 1982\n<\/p>\n
   1. Ram Swaroop\n<\/p>\n
   2. Shri Krishna\n<\/p>\n
   3. Ram Kumar\n<\/p>\n
    4. Suresh………………………………………Appellants
\n                                 Vs.\n<\/p>\n
State of UP…………………………………………..Respondents.<\/p>\n
HON’BLE YATINDRA SINGH, J
\nHON’BLE SURENDRA SINGH, J.\n<\/p>\n
1. We have heard Sri PN Mishra and Sri Intekhab Alam, counsel for the Appellants<\/p>\n
and Sri Arunendra Kumar Singh, AGA for the State.<\/p>\n
2. In view of office report dated 9.7.2010, the appeal of Appellants-1 and 2 is<\/p>\n
abated.\n<\/p>\n<\/p>\n
3. The prosecution has not been able to prove its case beyond reasonable doubt<\/p>\n
against Ram Kumar and Suresh (Appellants-3 and 4). They are given benefit of<\/p>\n
doubt and are acquitted. Their appeal against the order dated 10.2.1982 passed by<\/p>\n
1st Addl. Sessions Judge, Shahjahanpur in ST No. 481 of 1981 is allowed. They<\/p>\n
are already on bail. Their bail bonds are cancelled and sureties are discharged.<\/p>\n
They need not surrender.\n<\/p>\n<\/p>\n
4. For detailed orders, see our orders of date passed on separate sheet of papers.<\/p>\n
Date: 28.7.2010
\nSKS\n <\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-20533","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nRam Swaroop vs State Of U.P. on 28 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ram-swaroop-vs-state-of-u-p-on-28-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Swaroop vs State Of U.P. on 28 July, 2010 - 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