of U.P. Vs. Man Singh & Ors  Insc
441 (24 October 2002)
V. Patil & Arun Kumar..Arun Kumar, J.
appeals are directed against a Division Bench judgment dated 9.1.1992 of the Allahabad
High Court allowing the appeals against the judgment of conviction passed by
the IV th Additional Sessions judge, Mainpuri, Uttar Pradesh. The High Court
acquitted all the four accused who had been found guilty by the trial Court. As
a matter of fact the trial Court convicted six accused. All of them had
appealed to the High Court. During the pendency of the appeals, two accused
viz., Raj Nath and Mansa Ram died and the remaining four accused were acquitted
by the High Court. Hence, these appeals by the State against the judgment of
acquittal passed by the High Court.
the facts are that on the morning of 6th January, 1978 immediately after
sunrise i.e. at about 7.00 a.m. Raja Ram left his house for his fields to start
the diesel engine of his pumping set in order to irrigate his field . He required
help of at least three others for the purpose of starting the engine. He called
his brother Kishan Lal to follow him alongwith two other persons so that the
engine could be started. It has come in evidence that starting the diesel
engine during the winter month of January requires quite an effort. Daya Ram
(P.W.1), Kishan Lal (P.W.2) and Dev Dutt followed Raja Ram. They were about
15-20 paces behind Raja Ram. As Raja Ram was proceeding towards his field he
passed by two "Noonars" (Tilas). As per the prosecution case seven
accused persons viz., Sadho Singh ( who died during trial) alongwith Dhyan
Singh, Man Singh, Mansa Ram, Raj Nath, Ram Naresh and Ram Saneshi suddenly
emerged from behind the Noonars (tillas i.e. big mounds of earth). They were
all armed with weapons; three had country made pistols while the others had
guns with them. Dhyan Singh accused exhorted his companions "Sathiyo Raja
Ram Sala aaj nekal na pai". Raja Ram who was some paces ahead of the
accused took to heels. The accused gave him a chase and started firing shots at
him with their fire-arms. Raja Ram on receiving gun shots fell down in the
field of one Balwant. When the accused persons reached near the body of Raja
Ram, they fired some shots in the air and some at Raja Ram.
also shouted "Bara Bahadur banta tha, aaj mar paya hai." The field of
Balwant was by the side of a river which had knee deep water.
accused dragged the body of the Raja Ram to the river. The body of the deceased
was tied with a rope and "tahmad" and was dragged into the river
where river was deep. The body of Raja Ram was thrown into the river. Before
throwing the body into the river, the accused had severed the head of Raja Ram
from the body.
all the accused went away.
Ram (P.W.1), Kishan Lal (P.W.2) and Dev Dutt were stealthily following the
accused. On the basis of the trail of blood they reached the place wherefrom
the tied body of Raja Ram was thrown into the river. They took out the headless
body of Raja Ram from the river. Raja Ram had his name tattoed over his hand
which had been erased. Daya Ram and Dev Dutt stayed there to keep a watch over
the dead body while Kishan Lal left for Police Station, Alau to make a report. Kishan
Lal lodged the F.I.R. at the Police Station, and thereafter returned to the
place where the dead body was lying.
motive behind the murder is alleged to be that accused Sadho Singh (since
deceased) and Dhyan Singh alongwith others were being prosecuted in a case
under Section 307 I.P.C. in respect of an assault on one Ram Prakash. Daya Ram
(P.W.1) in the present case was the prosecution witness in the said case. About
a month prior to the incident of murder of Raja Ram, all the accused of the
present case had gone to the house of Daya Ram where in the presence of Raja
Ram (deceased), Kishan Lal and Dev Dutt, they asked Daya Ram not to be a
witness in the case under Section 307 IPC and asked him to file an affidavit
that no such incident took place in his presence. Daya Ram repelled the
suggestion and replied in the negative. Raja Ram (deceased) uttered "Hum Thok
Kar Gavahi dilwayengai". The accused persons then went away holding out a
threat to Raja Ram.
examining the two eye-witnesses viz., Daya Ram (P.W.1) and Kishan Lal (P.W.2),
the prosecution examined Dr. Devendra Prasad Misra (P.W.3) who had conducted
post-mortem examination on the body of the deceased on 8th January, 1978. The
remaining witnesses examined by the prosecution were the official witnesses.
The Doctor opined that the death took place two days prior to the examination.
He gave details of various ante-mortem and post mortem injuries found on the
body of the deceased. Apart from other details he deposed that the head and
neck were missing from the body and an abrasion 6" x 4" cms was found
on right arm front middle. According to the doctor the death was due to shock
and haemorrhage on account of ante-mortem injuries.
Ram (P.W.1) and Kishan Lal (P.W. 2) are the eye- witnesses of the incident.
They were persons who were following Raja Ram along with one Dev Dutt in order
to help Raja Ram to start the diesel engine attached to the pump-set for
purposes of irrigating the fields. The two eye-witnesses gave details of the
incident as they were following Raja Ram (deceased) 15-20 paces behind him .
to the eye-witnesses they had seen all the accused suddenly emerging from
behind the "Noonars" (Tilas) armed with weapons, who started chasing
Raja Ram firing gun shots at him due to which he fell down in the field of one Balwant
wherefrom the body of Raja Ram was dragged by the accused to the river. Before
throwing the dead body into the river, the accused had severed the head from
the body and tied the body with rope and "tahmad". After throwing the
body into the river, the accused went away. The two eye-witnesses alongwith Dev
Dutt thereafter took the dead body of Raja Ram out of the river. Kishan Lal
(P.W.2) went to the Police Station to file FIR while the other two stayed back
to keep a watch on the dead body. After lodging the FIR, the investigation
accused persons were charged with offences under Sections 148, 302/149 and 201
IPC. The accused persons pleaded not guilty. The trial took place. None of the
accused examined any witness in defence. The trial Court after examining the
entire evidence on record, by a well considered judgment, came to the
conclusion that all the accused persons were guilty of the offences they were
charged with. It convicted all of them of the offences they were charged with.
Each of them was sentenced to two years' rigorous imprisonment for offence
under Section 148 IPC and four years' rigorous imprisonment for offence under
Section 201 IPC. For the offence under Section 302 read with 149 IPC each of
them was sentenced to life imprisonment. The sentences were to run
the six accused persons appealed to the High Court. The High Court allowed the
appeals and acquitted all of them. The High Court has noticed in its judgment
that all the accused persons were on bail, they were ordered to be set free.
reciting the facts of the case and after noting the arguments advanced by the
counsel for the appellants, the High Court had only this to say :
considered seriously over the plea of the appellants. Keeping in view all the
circumstances the presence of both the alleged eyewitnesses at the time of
incident is appearing doubtful to us on a/c of which their evidence cannot be
relied upon beyond reasonable doubt.
opinion the prosecution has not succeeded in proving its case against the appellants
beyond reasonable doubt due to which their conviction cannot be uphold."
Strangely in a murder case involving seven accused persons, all having been
convicted by the trial court, this is the only contribution of the High Court.
From the observations of the High Court, it is clear that the High Court did
not accept the evidence of the eye-witnesses. The very presence of the
eye-witnesses at the time of occurrence was considered doubtful by the High
Court. This doubt which appears to have entered the mind of the High Court is
based on the argument advanced on behalf of the accused persons that there was
fog at the time of occurrence and due to fog the eye- witnesses who were said
to be at a distance from the deceased could not have seen what was actually
view, this factor which seems to have prevailed with the High Court in
acquitting the accused persons was totally extraneous, being based on
conjectures. It is rather contrary to the evidence on record. Therefore, in our
view, the decision of the High Court cannot be sustained. The theory of fog was
introduced before the High Court for the first time. It is not based on any
evidence. In any case the said theory could not be introduced because the
presence of fog leading to the vision of the eye-witnesses being blurred was
never put to the eye-witnesses. The eye-witnesses were never asked in the
cross-examination as to whether there was fog at the time of the incident, and
if so, did it obstruct the eye-witnesses from watching the occurrence. When
this aspect was never put to the witnesses, it cannot be said on the basis of
mere imagination that the vision of the witnesses was obstructed by fog and
they could not have seen the occurrence. The High Court completely erred in
accepting this and doubting the version of eye-witnesses for this reason alone.
The basic fact about the presence of fog leading to blurring the vision of the
eye-witnesses without being put to witness during their cross- examination
could not have been taken into consideration. It was the witnesses who were in
best position to say whether there was fog at the relevant time or not and
whether the fog, if present, was enough to prevent the eye-witnesses from
watching the scene of occurrence.
High Court was not justified in basing its decision on the theory of presence
of fog. On the other hand it is to be seen that both the eye witnesses gave
detailed account of the incident. There is hardly any discrepancy in the
version of the incident given by the two witnesses. Without actually witnessing
the incident the witnesses could not have given such details of the occurrence.
In our view the eye witness account of the occurrence inspires confidence and
there is no reason to cast any doubt on the same. It is a case of brutal murder
of a person by a gang of seven persons. The details of the murder available on
record in the shape of eye witness account of the incident, medical evidence,
mutilated body of the accused with neck and head severed, leave no doubt about
the involvement of the accused-respondents in the crime.
High Court failed to appreciate that the dead body of Raja Ram was taken out
from the river by Daya Ram, Kishan Lal and Dev Dutt almost immediately after
the accused persons had left the scene after throwing the dead body into the
river. The immediate recovery of the dead body by these persons completely
establishes their presence at the scene of occurrence and the fact that they
had witnessed the entire incident. When the dead body was immersed in water and
was lying in the river bed, it would have been impossible to take it out
immediately unless the persons who took out the dead body had seen the dead
body being thrown into the river. The instantaneous recovery of the dead body
of Raja Ram from the river by the eye-witnesses, including Dev Dutt shows that
they had seen the spot where the dead body had been thrown into the river and
for that reasons alone, they could have it out, otherwise locating the dead
body in the river bed would have been quite an effort and time consuming. This
aspect completely establishes the presence of the eye-witnesses on the scene of
occurrence and the fact that they had seen the occurrence.
important fact to be kept in view is that the accused persons were seven in
number and they were all armed with guns and pistols whereas the three viz., Daya
Ram, Kishan Lal and Dev Dutt, belonging to the victims party, were totally
unarmed. This was the reason that they had to conceal themselves and they could
not come out in the open before the accused persons in order to make any effort
to save the deceased. Coming out in the open would have been fatal. The conduct
of these three was quite natural. Normally nobody would venture or have the
courage to go near the accused persons who were armed with fire-arms and who
were firing gun shots at their target. If any one would have tried, he would
have met the same fate. They must have been anxious to take the dead body of
the deceased with them and for that reason they hid themselves in the Arhar
fields and remained there till the accused left the place of occurrence to take
out the dead body. The trial court after closely examining the evidence of Daya
Ram (P.W.1) and Kishan Lal (P.W.2) noted that both were consistent in their
version of the occurrence and there was no material discrepancy in their
statements. It found that evidence of the two eye-witnesses was genuine.
all these reasons we are unable to sustain the judgment of the High Court which
is under appeal. Accordingly the same is set aside. The judgment of the trial
Court is upheld. We uphold the conviction of the accused persons and the
sentence imposed on them by the trial court. We are informed that out of the
six accused persons, two died during the pendency of appeal before the High
Court, the remaining accused persons be taken in custody to undergo the
sentence as awarded by the trial Court.
appeals are allowed accordingly.