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STATE OF U.P. versus GANGA RAM & OTHERS

High Court of Judicature at Allahabad

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State of U.P. v. Ganga Ram & others - GOVERNMENT APPEAL No. 760 of 1981 [2006] RD-AH 937 (13 January 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                                     Reserved

                      Government Appeal No. 760  of 1981

State of U.P.  .......................................................Appellant

Versus

1.Ganga Ram

2. Uma Shanker

3. Jai Ram  .........................................................Accused

          Respondents

Hon'ble M.C.Jain,J.

Hon'ble M.Chaudhary,J.

            (Delivered by Hon'ble M Chaudhary,J.)

This is an appeal filed on behalf of the State from the judgment and order dated 21st of January 1981  passed by Sessions Judge Fatehpur in Sessions Trial No. 339 of 1980 State Versus Ganga Ram & others acquitting the accused respondents of the charge levelled against them.

Brief facts giving rise to this appeal in nutshell are that Ram Charan, Ram Singh and Sighhan  were real brothers residing at village Baluwapur. Baluwapur and Gandhrpi are  hamlets  of  village Habsapur.  Enmity between Lakshmi Narain  alias  Lallu, the Village Pradhan and Ganga Ram Kurmi resident of  village Hafispur Harkaran  was going on since long. Ram Singh used to accompany Lakshmi Narain for his security and sleep at his house near him, and on that very account Ganga Ram Kurmi and his associates used to bear grudge against Ram Singh.  In the month of February this very year a criminal case under section 307 IPC was launched against Lakshmi Narain and his associates, and Ganga Ram and his associates were accused of rioting etc.  Sighhan was a witness against Ganga Ram and his associates in the case of rioting against them. Ganga Ram and his associates threatened Ram Singh several times that he should not work as security guard for Lakshmi Narain otherwise he would be done to death.  In the noon of 3rd of July 1979 Ram Charan was grazing his cattle at the canal distributory and his brother Ram Singh was collecting fruits of Mahua tree in his  grove. Devi Prasad and his brother  Nanhkai   were also grazing their cattle at the canal distributory at some distance towards east.. At about  1:00 p.m.  that noon hearing the shrieks of Ram Singh, Ram Charan rushed towards his grove and saw that Ganga Ram armed with gun and his brother Uma Shanker alongwith one Jai Ram with countrymade pistols were chasing Ram Singh and on reaching in the vacant field of Ram Asrey, Ganga Ram fired at Ram Singh with gun hitting him at his chest and all the three miscreants bolted away towards west.  Sustaining the fatal injury Ram Singh died on the spot. In the meanwhile Moti Lal, father of the deceased and other co-villagers reached the scene of occurrence. Then Ram Charan went to his village and scribed report of the occurrence and went to  police  station Bindki situate  at a distance of six  miles from the  place of occurrence and handed over  written report of the occurrence to the police there.  The police prepared check report  on the basis of written report and made entry regarding registration of the crime in the GD  (Exts Ka 2 and Ka 3). SI Sita Ram Arora  to whom investigation  of the crime was entrusted  recorded statement of Ram Charan, the first informant at the police station itself.  Then he went to the scene of occurrence. He drew inquest proceedings on the dead body of Ram Singh preparing inquest report (Ext Ka 7) and other necessary papers (Exts Ka 8 to Ka 10) and handed over the dead body in a sealed cover alongwith  necessary papers to constable Brij Pal Singh and village chaukidar Ram Autar  for being taken for its post mortem.  Then he inspected the place of occurrence and prepared its site plan map  (Ext Ka 11).  He also collected blood stained and simple earth  from the scene of occurrence and prepared its memo (Ext Ka 12). Since none of the  eye witnesses was available at that time, he recorded the statements  of witnesses next morning.  Then he arrested  accused  Ganga Ram and Uma Shankar from their  house  and accused  Jai Ram from his field and went back to police station taking them.

Autopsy on the dead body of Ram Singh conducted by Dr Jagdish Saran Rai , Medical officer District Hospital Fatehpur on 4th of July 1979 at 2:15 p.m. revealed below noted ante mortem injuries:

1. Gun shot wound ¾" x ¾" x cavity deep on front of chest 3" away from left nipple at 7 O'clock position  with margins lacerated and inverted. Blackening and tattooing was found present around the wound.

           On internal examination  left lung and pleura, heart and pericardium  were found lacerated.  Stomach contained 4 oz semi digested food.  The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injury about one day ago. The doctor removed six big pellets and wadding pieces from inside the injury.

           SI Sita Ram Arora investigated the crime in main and on 5th of July 1979 investigation of the case was transferred to Station Officer Ram Pratap Tripathi.. After completing the investigation he submitted charge sheet against the accused accordingly.

After framing of charge against the accused the prosecution examined  Ram Charan (PW 1)  and Devi Prasad (PW 2)  as eye witnesses of the occurrence.  PW 3 HM Raj Kumar Misra  who prepared check report  on the basis of the written report handed over by Ram Charan  at the police station and made entry regarding registration of the crime in General Diary  has proved these papers (Exts Ka 2 & Ka 3).     PW 4 Dr Jagdish Saran Rai, Medical Officer District Hospital Fatehpur  who conducted autopsy on the dead body of Ram Singh has proved the post mortem report.   PW 5  CP Brij Pal Singh to whom dead body alongwith necessary papers  was entrusted for being taken for its post mortem  has stated the said fact.  PW 7 SI Sita Ram Arora  who investigated the crime in main and PW 6 station officer Ram Pratap Tripathi  who completed the investigation  and submitted charge sheet against the accused have proved these papers.

The accused denied the alleged occurrence altogether stating that they had been implicated in the case falsely on account of enmity. Accused Uma Shankar also stated that his brother was a witness against Lakshmi Narain  and others in a case under section 307 IPC.

The accused examined one Ram Deen (DW 1), Ram Sanjivan (DW 2) and Amrit Lal (DW 3) in their support.   DW 1 Ram Deen and DW 2 Ram Sanjivan stated that at about 11:00 a.m. the alleged noon  none fired at Ram Singh and that he committed suicide himself under the  acacia tree situate in the field of Ram Asrey.  DW 3 Amrit Lal stated that he did not witness the incident of firing at Ram Singh; that the alleged noon on hearing the sound of shot fired he rushed to the scene of occurrence but he did not  see any person  there and saw Ram Singh lying dead in a field at Gandharpi and that some 10-15 days thereafter some of the co-villagers had given an application to the Superintendent of Police, Fatehpur and he put his signatures on that application without going through its contents.

On an appreciation of the parties' evidence and other material on the record the  trial Judge disbelieved the prosecution case and evidence and placing reliance on the testimony of three witnesses examined by the accused in their defence held that Ram Singh could have committed suicide because of some  family troubles and giving benefit of doubt to the accused acquitted them.

Feeling dissatisfied by the impugned judgment and order, the State  preferred this appeal assailing acquittal of the accused respondents.

We have heard Sri K.P.Shukla learned AGA for the State appellant and Sri Kamal Krishna learned counsel for the accused respondents and gone through the record.

It is well settled that in criminal cases if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.  On the basis of this very principle appeal from an order of acquittal  should be interfered with only when there are compelling and substantial reasons therefor. After going through the impugned judgment and record of the case we find ourselves unable to agree with the findings recorded by the court below as the  same are not  at all  sustainable.

Learned AGA for the State appellant vehemently argued that the trial judge wrongly discarded the sworn testimony of the two eye witnesses placing implicit reliance on the defence evidence which is worthless. On the other hand, the learned counsel for the  accused  respondents  supported  acquittal on the lines of the  reasoning  adopted  by the  trial judge.  On careful  analysis, we find sufficient  force in the submissions of the  State Counsel. Relevant discussion would   render the situation clear.

The defence case is that due to family disputes Ram Singh  committed suicide the alleged forenoon at about 10-11 a.m.  The evidence adduced by the accused in their defence consists of the testimony of DW 1 Ram Din, DW 2 Ram Sajiwan and DW 3 Amrit Lal.  Out of the testimony  of these three witnesses testimony of DW 3 Amrit Lal is of no avail to the defence.  DW 3 Amrit Lal who is resident of village Baura ka Dera  situate at a distance of some four furlongs from the place of occurrence stated that at about 11:00 a.m.  the alleged day he was ploughing his field situate at a distance of about  100 yards from the place of occurrence; that he heard sound of a shot fired, that someone might have  shot Ram Singh  but he did not see any other person at the scene of occurrence at that time though he saw a girl at some distance and that about 3-4 hours thereafter he went to the scene of occurrence.  He further stated that some 10-15 days after the said incident Raghuraj brought an application to him and he obtained his signatures thereon  telling him that that application was to be given in the case of Ram Singh and that he put his signatures on that application without going through the contents thereof. Application aforesaid (Ext Kha 1) has not been duly proved as it is not known as to by whom that application was scribed and the signatures of various persons who allegedly signed that application too  have not been proved.  This witness Amrit Lal is a witness  no better than a got up witness.  DW 1 Ram Din stated that being a co-villager  he used to treat Ram Singh as his grandson (Naati); that for the last 4-6 days prior to the occurrence there were some family disputes in his family; that at about 10:00 a.m. the alleged forenoon he was sitting at the berm of the canal distributory; that Ram Singh came to him alongwith his sister and touched his feet and as he asked him as to what he was doing he replied  that he would go where Almighty would take him and then he proceeded towards his grove and that a little later he heard the sound of a gun shot and thereafter his sister Kallaniya going away weeping from the field of Nai and Ram Singh died near the acacia tree in that field.  He admitted that  the acacia tree was situate at a distance  of about half a furlong from the canal distributory where he was grazing his cattle.  He further stated that he continued  grazing his cattle upto 2-3 hours thereafter at that very place. This witness Ram Din stated  his age to be 70 years. He admitted in his cross-examination that he was history sheeter.  Hans Gross in his book ''Criminal Investigation'  Edited by  J C Adam 5th Edition published in the year 1962 at pages 159- 160 observed that if the eye sight is normal and the light good, one is able in broad day light to recognize persons whom one knows very well at a distance of 50- 90 yards . The eye sight of an old man aged about 70 years can not be said to be normal  as due to age factor it must have deteriorated.  Hence it is difficult to believe that he would have seen Ram Singh near the acacia tree  situate at a distance of more than half furlong firing at himself. Otherwise too, he stated that at about 10:00 a.m. the alleged forenoon Ram Singh came to him  and touched his feet  and after having a little talk he went away towards his grove and soon thereafter he saw Ram Singh near the acacia tree  and heard sound of gunshot and his sister going away weeping therefrom.  But his subsequent conduct  falsifies it  as he stated that after the incident he continued grazing his cattle for 2-3 hours there.  He nowhere  stated that  after hearing sound of gun shot he went to see the victim as to what happened to him.  If a person touches feet of some elderly person it is but natural that if the latter perceives  that there is something wrong with that fellow he would certainly rush for his help or at least  see as to what happened to him.  In view of these facts the testimony of this witness does not inspire confidence in its truthfulness.  DW 2 Ram Sajiwan  stated that at about 11:00 a.m. the alleged noon he was grazing his cattle at the canal distributory;  that he saw that Ram Singh committed suicide near the acacia tree  standing in the field of Ram Asrey Nai  by firing with countrymade pistol  and that  when other co-villagers reached the scene of occurrence he also went there but he did not see any miscreant at the scene of occurrence. He admitted in his cross-examination that Raghubir is his cousin brother and litigation over some land was going on in revenue court at that time between Ram pal, grandfather of Ram Singh  on one hand and Raghubir on the other.  According to defence version  itself the application that Ram Singh committed suicide was given to the Superintendent of Police,  Fatehpur some 10-15 days  after the said occurrence.  The defence version that Ram Singh committed suicide does not get corroboration from medical evidence as PW 4 Dr Jagdish Saran Rai, Medical officer District Hospital Fatehpur who conducted autopsy on the dead body of Ram Singh on 4.7. 1979 stated in his cross-examination that the ante mortem firearm injury on the chest of the deceased could not be self inflicted. Further there is nothing on the record to show that any countrymade  pistol with which he allegedly committed suicide was found lying on his body or near  thereto. Thus the defence theory of suicide  by Ram Singh which  has been wrongly believed  by the trial judge has to be left out of consideration. Inevitably  the finding of the court below that the possibility of  Ram Singh committing suicide  could not be  ruled out is erroneous and perverse.

The trial judge wrongly discarded the testimony of eye witness  PW 1 Ram Charan, brother of the deceased and first informant and PW 2 Devi Prasad observing  that their statements were contradictory on several points.    He pointed out that PW 1 Ram Charan, brother of the deceased stated that he was grazing his cattle at the canal distributory towards the western side since 8-9 a.m. that morning and Devi Prasad and his brother Nanhkai reached there  with their cattle at about 10:00 a.m. whereas PW 2 Devi  Prasad stated that he and his brother taking their cattle reached at the canal distributory at about 12:00 noon and after  a little while Ram Charan also reached  taking his cattle there. The gist of the testimony of PW 1 Ram Charan was that the alleged day he was grazing his cattle at the canal distributory since 8-9 a.m. and Devi prasad and Nanhkai taking their cattle for grazing reached at about 10:00 a.m. at the canal distributory at a short distance; that at that time his brother Ram Singh was collecting ''Gullu' (fruits of mahua tree) in his grove; that at about 1:00 p.m. he heard the  shouts of Ram Singh to save him; that immediately he rushed towards his grove; that Devi Prasad and Nanhkai also rushed with him  and they saw that accused Ganga Ram armed with gun alongwith his brother Uma Shankar and one Jai Ram with countrymade pistols  were chasing Ram Singh and as Ram Singh was running in the field of Ram Asrey  all the three pounced upon him and  Ganga Ram fired at him  with his gun from a close range and sustaining the firearm injury Ram Singh fell down and died on the spot and  that as they chased the assailants Ganga Ram reloaded his gun and at the gun point  they succeeded in making their escape good and that then he went to his village  and  his family members and other co-villagers reached at the scene of occurrence.  PW 2 Devi Prasad corroborated him stating likewise on all material points. This  time   difference did not  justify the rejection of the  testimony of the  two eye witnesses for the simple reason that time is not the  essence  of life of rustic villagers who speak about it on the basis of  rough  estimation, and not  with precision.

Further, the trial court  observed that PW1 Ram Charan stated that his brother Ram Singh  worked in a factory at  Kanpur  for a period of six months two years prior to the occurrence whereas PW 6 station officer Ram Pratap Tripathi stated that  he enquired into the matter and learnt that Ram Singh had left the job only one month prior to the occurrence. But no documentary evidence has been brought on the record  by this  witness. In our considered view, Ram Singh had no reason to tell a lie on the point as he stated that in the month of February  that very year some quarrel took place between Lakshmi Narain Pradhan on the one  hand and accused Ganga Ram and others on the other and cross-cases were launched against them which were pending at that time.  Admittedly Sighhan, younger brother of Ram Charan was in the employment of Lakshmi Narain  for the last 8-9 years. PW 1 Ram Charan stated that since the said occurrence  in the month of February Ram Singh used to work as body guard of Lakshmi Narain and sleep  at the house of Lakshmi Narain Pradhan  near him since after 4-5 days of the said incident of assault between Lakshmi Narain Pradhan and Ganga Ram and others.

Minor discrepancies on trivial matters not touching core of the  case should not entail rejection  of the sworn testimony of the eye witnesses if the same is consistent  regarding substratum of the occurrence. Even honest and truthful witnesses may differ in some details unrelated to the main incident because of perception and retention power. Reproduction also differs from individual to individual.  Both these witnesses were subjected to searching and gruelling  cross-examination but nothing  tangible could be brought on the record to shake their credibility as  to the  central core of their testimony that  Ganga Ram shot dead  the deceased on the given  date, time and place.

Learned counsel for the accused respondents contended that the accused had no motive to commit the murder of Ram Singh.  It is well established that in the case of direct evidence motive pales into insignificance. However, according to PW 1 Ram Charan  for the last five months  Ram Singh used to work as body guard of Lakshmi Narain Pradhan  and accused Ganga Ram  and his family members used to threaten him not to continue as body guard of Lakshmi Narain Pradhan otherwise he would be killed. That constituted sufficient motive  for the instant crime.  

Both the eye witnesses namely PW 1 Ram Charan and PW 2 Devi Prasad appeared to be truthful and straightforward witnesses as they were subjected to rambling and gruelling cross-examination but nothing favourable to the accused could be elicited therefrom.  PW 1 Ram Charan is the brother of the deceased. His sworn testimony stands well corroborated by the medical evidence and FIR of the occurrence lodged by him promptly at the police station. It should be  stated  at the  risk of repetition that medical evidence completely dislodges the defence theory  of suicide by Ram Singh.  PW 4 Dr Jagdish Saran Rai categorically stated  in his cross-examination that the ante mortem firearm injury sustained by the deceased  could not be self inflicted.  The fact of  PW 1 Ram Charan being close relative of the deceased,  would add to the value of his testimony because he would naturally be interested in ensuring that real culprit is punished and not screened. As far as testimony of PW 2 Devi Prasad is concerned,  he is an independent witness as he had no axe to grind against any of the accused.

Thus, on a global consideration of the evidence and concomitant circumstances  we are of the view that judgment of the trial court can not be sustained in law as the trial court ignoring the ocular testimony corroborated by medical evidence and taking a suspicious view of the evidence based on conjectures and surmises  has recorded the finding  of acquitting the accused. However since no overt act has been attributed to accused Uma Shankar and Jai Ram, they can well be given benefit of doubt. Thus,  accused Ganga Ram is held guilty of the charge levelled against him under section 302 IPC.

The appeal is allowed in part setting aside acquittal of accused respondent Ganga Ram. He is convicted under section 302 IPC  and sentenced to imprisonment for life thereunder.

Acquittal of accused respondents Uma Shankar and Jai Ram is hereby affirmed. They are on bail. Their bail bonds are hereby discharged.

Accused respondent Ganga Ram is convicted under section 302 IPC and sentenced to imprisonment for life thereunder. He is on bail.  Chief Judicial Magistrate, Fatehpur is directed  to get him arrested and sent to jail  to serve out the sentence imposed upon him.

Copy of the judgment be certified to the court below.

Record of the case be transmitted immediately to the court concerned for necessary compliance under intimation to this court within two months from the date of receipt of the record and the copy of the judgment.

Dated: 13th of January, 2006

Dks/GA 760-1981


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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