Pratap Chauhan Vs. Ram Naik & Ors  INSC 557 (13 November 2000)
Lahoti, & Shivaraj V. Patil. R.C. Lahoti, 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
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.
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.
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.
and Baijnath(P.W.5) have their houses situated in close vicinity of Ram Bharoses
house in the village.
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
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.
on the dead body was conducted by Dr. R.P.
On completion of investigation the three accused-respondents were
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.
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.
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.
to Ram Bharose(P.W.1), he was awakened by the shouts of Komal Ram. He got up
and ran towards the well.
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).
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
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
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.
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.
weapon of the offence was not recovered.
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.
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.
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.
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
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.