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State Of U.P. v. Sheo Ram - GOVERNMENT APPEAL No. 260 of 1981  RD-AH 7441 (23 April 2007)
GOVERNMENT APPEAL NO. 260 of 1981
STATE OF U.P. Vs. SHEO RAM AND THREE OTHERS
Hon'ble Mukteshwar Prasad, J.
Hon'ble S.C. Nigam, J.
(Delivered by Hon'ble Mukteshwar Prasad, J.)
1- This appeal under Section 378 Cr.P.C. by the State of U.P. is directed against the judgment and order dated 13.11.1980 passed by the then IVth Additional Sessions Judge, Fatehpur in S.T. No. 338/79 whereby he acquitted all the four accused-respondents namely, Sheo Ram, Santu Singh, Bhola and Durga Singh of all the charges framed against them and they were given benefit of doubt.
2- Briefly stated, the facts of the case-giving rise to this appeal were as under:
3- P.W.1 Awadhesh Chandra, son of Suryabhan Prasad, the informant, handed over a written report at P.S. Kishunpur (Fatehpur) on 16.6.79 at 5-30 P.M. and the local Police registered a case under Section 364/395 I.P.C. According to prosecution about 2-3 years prior to the incident in question, accused Sheo Ram and others committed murder of one Jugal Kishore, son of the informant's mother's sister's (Mausi). The deceased (Akhilesh) brother of the informant, was doing pairvi in the murder case on behalf of the prosecution. Accused Sheo Ram, Santu Singh and Suleman, who did not face trial in the case, were convicted and sentenced to imprisonment for life. Since then, the parties were having strained relations. On 17.6.79, marriage of the sister of the informant was scheduled to be held and Baarat was to stay in the local Primary School.
4- On 16.6.79, Awadhesh Chandra accompanied by his brother Akhilesh (deceased) and their co-villager Moti Lal Gupta were going to have keys of Primary School to village Sarauli. When they arrived on the Pucca Road and took a turn towards village Sarauli, all the four accused named above along with Suleman and Naresh were seen coming from village Sarauli. Accused Sheo Ram and Durga Singh were armed with guns. Accused Santu Singh was carrying a Pharsa and Bhola was having a lathi. Accused Suleman and Naresh were carrying country made pistols. When the informant and others reached the culvert built on the canal at about 3-00 P.M., Sheo Ram exhorted his associates to teach a lesson to the enemy who was available there. On his exhortation, the accused snatched single barrel licensed gun of Akhilesh and took away Rs. 2100/- cash from his pocket. They caught Akkilesh. Bhola and Durga Singh tied his hands with a towel (Angauchha). They all took Akhilesh towards village Etaulipur. The informant made repeated requests to Sheo Ram and others to release his brother as marriage of his sister was fixed for 17.6.79 but they did not concede to his request. He further threatened the informant to go back failing which he would also be killed. The informant raised alarm, which attracted Raj Bahadur, Dhanraj Singh and Swaimbar Singh. They all prayed to Sheo Ram to allow Akhilesh to go to participate in the marriage of his sister but he paid no attention and they all took Akhilesh towards village Etaulipur with a view to kill him. Since the accused were carrying firearms, the witnesses did not chase them.
5- Awadhesh Chandra prepared a report in his own hand writing and reached Police Station Kishunpur and lodged FIR on the same day at 5-30 P.M. After registration of the case, the Police made entry in the G.D. and investigation was taken up by S.I. Shankar Singh (P.W.6). The I.O. left the Police station in the company of the informant. He interrogated Moti Lal Gupta and reached the scene of occurrence and after inspection at the pointing out of Awadhesh Chandra and Moti Lal Gupta prepared site-plan. He along with witnesses searched culprits and Akhilesh in several villages, including Etaulipur, Beouti, Ramsagra and Anjana Bharon but all in vain. On 17.6.79, the I.O. accompanied by Awadhesh Chandra, Moti Lal Gupta and Police personnel started searching the culprits and the victim. He found blood on the earth in the jungle. After vigorous search, he found hot ash. On further search, the I.O. found two pillars of well had fallen down and blood and bones were also there. When I.O. peeped into the well, he found fat floating in the water and with the help of Kanta a gunny bag was taken out from the well. Kanta was brought to the jungle by village Chaukidar and villagers. A headless body was found in the gunny bag. The legs were also cut. The dead body was identified by Awadhesh Chandra, his brother Dinesh and co-villagers Inder, Hajari and Mahabali. The informant disclosed that he was wearing red underwear and yellow banyan at the time of his abduction. The I.O. completed all formalities for post-mortem examination and collected blood stained earth, plain earth and ash also.
6- The post-mortem was done by P.W.2 Dr. B.N. Singh attached to PHC Amauli. Dr. Singh conducted post-mortem examination on 19.6.79 at 4-00 P.M. and death had taken place three days prior to the examination. The rigor mortis had passed off from the upper and lower limbs. There was no head. Both forearms were detached from the elbow. Both lower limbs were missing from thigh and there was a through and through injury. The penis was also found cut.
7- On 19.6.79, the case was converted under Section 396/201 I.P.C. On 2.7.79 accused Santu surrendered in the court and I.O. interrogated Raj Bahadur, Dhan Raj Singh and Swaimbar Singh. On 7.7.79, Sheo Ram also surrendered. On 8.7.79 the investigation was handed over to S.O. Jadunath Dwivedi. He completed investigation and submitted charge sheet against the accused.
8- After submission of the charge sheet, the case was committed to the court of session for trial. All the four accused named above were initially charged under Sections 396/201 I.P.C. In the alternative, they were charged under Sections 364 and 302 read with Section 149 of the Penal Code. On 17.7.80 charges under Sections 147 and 148 I.P.C. were also framed.
9- At the trial, the prosecution examined P.W.1 Awadesh Chandra, informant, who is brother of the deceased, and one of the eyewitnesses also, P.W.2 Dr. B.N. Singh conducted autopsy on 19.6.79 at 4-00 P.M., P.W.3 Moti Lal Gupta is also said to be an eyewitness and was accompanying the deceased on 16.6.79, P.W.4 Dhanraj Singh is also named in the FIR as an eyewitness, P.W.5 Inder was accompanying the I.O. at the time of recovery of dead body from the well and he too identified the dead body of Akhilesh , P.W.6 Shanker Singh is the first I.O. of the case, P.W.7 H.C. Ram Niwas Misra prepared Chik report and made entry in the G.D., P.W.8 Maqsood Arif deposited a sealed bundle at Sadar Malkhana Fatehpur on 31.7.80, P.W 9 Constable Tehsildar Singh took a sealed bundle to Chemical Examiner Agra on 18.8.80 after obtaining the same from Sadar Malkhana. He again deposited the bundle in Sadar Malkhana on 23.8.80 and P.W.10 Constable Bhaiya Lal took the dead body to mortuary on 18.6.79 and produced the same before Dr. B.N. Singh for post-mortem examination on 19.6.79.
10- All the four accused who faced trial admitted in their statements that deceased was brother of P.W.1 Awadhesh Chandra. Sheo Ram and Santu Singh pleaded that they were falsely prosecuted for committing murder of Jugal Kishore and were convicted and sentenced to imprisonment for life. They however totally denied that pairvi was done by the deceased. All the accused totally denied that they had formed a group and committed the offences as alleged by the prosecution. Accused filed a certified copy of the judgment passed in S.T. No. 260/78 State Vs. Sheo Ram and others, under Section 395/397 I.P.C. P.S. Kishunpur. No oral evidence was led in defence.
11- After having heard learned counsel for the defence and the State and scanning of the evidence led by the parties during trial learned Judge found that the prosecution had not succeeded in establishing its case against any accused beyond all shadow of doubt and they deserved acquittal. He accordingly acquitted all of them of all the charges levelled against them and gave benefit of doubt. Hence this appeal.
12- We have heard learned Additional Government Advocate for the appellant and Sri R.B. Sahai, learned counsel for the accused-respondents at length and have gone through the entire record carefully.
13- Learned A.G.A. submitted that there was strong motive for Sheo Ram and Santu Singh to commit the crime in question, including murder of Akhilesh and the finding recorded by the court below is perverse. The learned Judge erred in evaluation of the evidence of prosecution witnesses. He further committed error in holding that identification of the dead body was not established by reliable evidence and the statement of Dr. B.N. Singh on this point is not reliable but testimony of the witnesses on this point was wholly reliable and should have been accepted. Both Sheo Ram and Santu Singh were convicted under Section 302 I.P.C. for committing murder of Jugal Kishore who was closely related to the deceased and were sentenced to imprisonment for life. Therefore, their complicity in the crime is not ruled out and the judgment impugned in this appeal is liable to be set aside.
14- The prosecution examined P.W.1 Awadhesh Chandra, real brother of the deceased, who was accompanying him at the time of alleged incident, P.W.3 Moti Lal Gupta, who was also accompanying the deceased and was going to have keys of the Primary School and P.W.4 Dhanraj Singh who also arrived at the scene of occurrence and made a request to the accused to free the deceased so that he could participate in the marriage of his sister. These three witnesses of fact fully supported the prosecution version. However, the trial Judge did not accept their testimony and giving benefit of doubt acquitted all the four accused.
15- Learned A.G.A. has placed reliance on two decisions of Supreme Court in Sucha Singh Vs. State of Punjab reported in AIR 2001 S.C. Page 1436 and State of Punjab Vs. Karnail Singh 2004 SCC (Cri) Page 135.
16- On the other hand, learned counsel appearing for the accused-respondents supported the judgment in question and contended that after recovery of dead body on 17.6.79, there was no question of marriage in the family of the deceased and identification of the dead body was not proved by reliable evidence. He further submitted that presence of witnesses at the time of recovery of dead body of Akhilesh is highly doubtful and the prosecution failed to show as to why the head and other parts of the body were cut into pieces and were separated. The trial Judge rightly disbelieved the prosecution story and was wholly justified in acquitting the accused.
17- It is well settled now that there is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that 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. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. Therefore, a duty is cast upon the appellate court to reappreciate the evidence even where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused committed any offence or not and the appellate court is required to interfere only when there are compelling and substantial reasons for doing so.
18- We have considered the submissions made on behalf of the parties and scrutinized the evidence in the light of the aforesaid principles laid down by the Apex Court of the country in respect of the appeal filed by the State against acquittal of the accused.
19- According to the informant, Jugal Kishore, who was closely related to him and his brother (the deceased) was killed by Sheo Ram, Santu Singh and others. Both the accused Sheo Ram and Santu Singh admitted that they were prosecuted for committing murder of Jugal Kishore and the trial Judge convicted and sentenced them to suffer imprisonment for life. It is true that they denied that pairvi was done by deceased Akhilesh but the informant gave out in clear words that pairvi in the murder of Jugal Kishore was done by his brother Akhilesh. It is, therefore, obvious that Sheo Ram and others were on inimical terms and as such, they had strong motive to commit the crime in question. It was suggested to the informant on behalf of the defence that the cattle owned by the informant had damaged the standing crops of Sheo Ram who took them to cattle pound and maarpit took place between the parties, which ended after intervention of the villagers. It is noteworthy that the trial Judge has also recorded a finding that the accused had a motive to commit the offence. Besides the accused, Suleman and Naresh had also sufficient motive to commit the offence.
20- In the instant appeal, the prosecution mainly relied on the testimony of P.W.1 Awadhesh Chandra, P.W.3 Moti Lal Gupta, P.W.4 Dhanraj Singh and P.W.5 Inder who were allegedly present at the time of recovery of the dead body and identified the dead body of Akhilesh. We have thoroughly scanned the statements of these four witnesses and find that their testimony can be relied upon and accepted in part. In our opinion, there is clear and cogent evidence on record to the effect that incident in question took place on 16.6.79 at about 3-00 P.M. and marriage of sister of the informant was to be solemnized on 17.6.79. It is also clear that marriage party was to stay in the local Primary School and the deceased accompanied by his brother Awadesh Chandra and co-villager Moti Lal Gupta were going to have keys of the School to the house of Headmaster Bhudeo Prasad. P.W.1 Awadesh Chandra and P.W.3 Moti Lal Gupta corroborated the testimony of one another on these points and we see no valid reason to reject their testimony. It was suggested to them that the School was managed and controlled by Zila Parishad but no permission was sought and no documentary evidence was led to show that deceased or members of his family had obtained permission for staying marriage party. It will not be out of place to mention here that normally marriage parties in the villages stay in the local Schools/Colleges and keys are obtained by the persons concerned from the Headmaster/Principal of the College and no formal permission is obtained. We further find that P.W.1 Awadhesh Chandra and P.W.3 Moti Lal Gupta supported the prosecution version to the effect that on the impugned date at about 3-00 P.M. they both along with the deceased were going to have keys to village Sarauli and they met the accused in the way who overpowered Akhilesh and looted his single barrel licensed gun as well as Rs.2100/- from his pocket. They further disclosed that the accused and their associates were armed with guns, country made pistols, Pharsa and lathi and by using force, they snatched the gun and cash. Accused Bhola and Durga Singh tied hands of Akhilesh with their Angauchha and they took him towards village Etaulipur. P.W.4 Dhanraj Singh, who is an independent witness and Thakur by caste, was coming back after marketing in village Kishunpur and he too saw the hands of Akhilesh tied and accused Bhola had caught him. He, Swaimber Singh and Raj Bahadur requested the accused to release Akhilesh but they paid no attention. These three witnesses namely, Awadhesh Chandra, Moti Lal Gupta and Dhanraj Singh were cross-examined at length but in our opinion nothing could be elicited to show that they did not speak the truth or were partisan/interested and as such, their testimony has to be discarded. In our view, these three witnesses appear to be wholly reliable on the point that three persons namely Awadesh Chandra, Moti Lal Gupta and the deceased were going to obtain the keys of the Primary School to the house of the Headmaster on 16.6.79 at about 3-00 P.M. and Akhilesh became victim of the highhandedness of the accused and their companions Suleman and Naresh. The accused persons used force and looted licensed gun as well as Rs.2100/- cash from the pocket of Akhilesh and thus they committed dacoity in broad day light in the presence of eyewitnesses and despite their repeated requests and prayer for mercy on the ground that victim's sister was to be married next day, they did not show any sympathy and took away the victim with them.
21- The second part of the accusation against the accused is that they forcibly took away Akhilesh to the jungle and subsequently committed his murder, cut several parts of the body into pieces and burnt him. After burning, they are said to have thrown headless body into a well from where the I.O. in presence of witnesses recovered the dead body on 17.6.79.
22- P.W.1 Awadesh Chandra claimed that I.O. recovered the dead body from the well and he had identified the dead body of his brother in the presence of his co-villagers Inder and Mahabali. According to him, there were half burnt underwear and banyan wrapped on the body of the deceased which helped him in identifying the dead body. Contrary to this, P.W.5 Inder testified that the dead body was totally naked and there were no clothes on the body. Both stated in unambiguous words that headless body was recovered from the well. There were no legs and hands. Legs were cut and separated from both thighs. According to the I.O., the dead body was identified by Awadhesh Chandra, his brother Dinesh and co-villagers Inder, Hazari and Mahabali. It may be mentioned here that Dinesh, Hazari and Mahabali were not examined by the prosecution and Massa on the back and mark of Phora were not seen by Inder on the dead body and these two identification marks were disclosed to Inder by I.O. The brother of the deceased claimed to have identified the dead body with the half burnt clothes on the body of the deceased. We further find a salient feature in this case. The I.O. started searching Akhilesh on 16.6.79 and he succeeded in recovering his dead body on 17.6.79 with the help of villagers. He, however, prepared inquest report on 18.6.79 and summoned Jild Panchayatnama from the Police station on 17.6.79. He did not leave the Police station for investigation of the case along with Jild Panchayatnama. This conduct on the part of the I.O. creates suspicion regarding recovery of the dead body from the well on 17.6.79. We are conscious of the legal position that a presumption may be drawn against the accused who are found responsible for abduction of a person in the sight of others and later on the abductee is killed. In the instant case, we are of the opinion that identity of the dead body was not established by the prosecution by reliable and clinching evidence. Admittedly, there was no head and both hands and legs were cut and separated from the body. Penis was also cut. In this view of the matter, it was very difficult for anybody, including members of the family to identify the victim correctly and beyond reasonable doubt. P.W.2 Dr. B.N. Singh gave out that the dead body was in the state of decomposition and as such, there was no mark of identification.
23- In view of the aforesaid discussion and analysis of the evidence on record led by the prosecution, we are clearly of the opinion that the prosecution miserably failed to prove and establish the identity of the dead body and as such, we are not inclined to interfere and disturb the finding of the court below on this point. Consequently, we hold and affirm the finding of the trial Judge that the accused-respondents could not be held guilty of the charges framed under Sections 364, 302, 201, 147 and 148 I.P.C. However, in our opinion, the prosecution led sufficient reliable and convincing direct evidence to the effect that all the four accused-respondents along with two others committed dacoity in broad day light in the month of June at about 3-00 P.M. and took away licensed single barrel gun of Akhilesh and Rs.2100/- cash also from his pocket in the presence of his brother and co-villagers. All the four accused-respondents are, therefore, found guilty for committing dacoity punishable under Section 395 I.P.C.
24- This appeal is, accordingly, partly allowed. The order of acquittal passed against all the four accused-respondents by the trial Judge are hereby set aside and all of them namely, Sheo Ram, Santu Singh, Bhola and Durga Singh are found guilty and convicted of the offence punishable under Section 395 of the Penal Code. Each of them is sentenced to suffer imprisonment for life.
25- All the four appellants on are bail. Their bail bonds are cancelled. They shall be taken into custody and sent to Jail to serve out the sentence.
26- A copy of this judgment shall be sent to C.J.M., Fatehpur for necessary compliance of the order who will cause the appellants arrested and send them to Jail. Certify a copy of this judgment to the court below also for necessary compliance. Compliance report shall be sent to this Court within a period of two months from the date of receipt of a copy of this judgment.
Date:23rd April, 2007
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