Babua vs State Of U.P.
2019 Latest Caselaw 4353 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment reserved on 01.04.2019
 
Judgment delivered on 10.05.2019 
 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 2031 of 1982
 

 
Appellant :- Babua and another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.K.Pandey,Amit Mishra,Ms.Sadhna Dubey,R.R.K.Trivedi,Rajeev Trivedi,S.K.Shukla
 
Counsel for Respondent :- D.G.A.,Amit Mishra
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)

1. Heard Sri Amit Mishra, learned counsel for the appellant, Mrs. Archana Singh, learned A.G.A. for the State and perused the record.

2. This appeal has been preferred by accused appellants Babua and Haidar against the judgment and order dated 20.8.1982 passed in S.T. No. 6 of 1982 (State vs. Babua and another) whereby both the appellants have been found guilty of offence under sections 302 read with 34, 364 and 201 IPC and are sentenced to undergo life imprisonment under section 302 read with section 34 IPC; 7 years R.I. under section 364 IPC and three years R.I. under section 201 IPC. All the sentences are directed to run concurrently.

3. The appeal of appellant Babua stands abated vide this Court's order dated 11.12.2015 on account of his death. Therefore, only appeal of appellant Haidar remains for our consideration who is detained in prison.

4. In brief, the prosecution case as mentioned in FIR, is that in the intervening night of 30/31.5.1981, the informant Krishna son of Diviya Kumhar resident of Chand Thok Qasba and Police Station Sumerpur, district Hamirpur was sleeping with his wife in his house and his mother Budhiya and his brother Ram Bharose were sleeping in their house and his sister Smt. Ram Bai and wife of Durjan Kumhar were sleeping in the house of Durjan. At about 1.30 A.M. in the night, Ghaseeta son of Jageshwar @ Hagga Kahar, resident of Mohalla Amiliya, Babua son of Mangi Lohar, resident of Chand Thok having guns and also torches in their hands, Haidar son of Roshan Musalman resident of Thok having country made pistol in his hand came there and they all entered into the house of Durjan and opened latch of their house and caught hold of informant's sister and when his sister and wife of Durjan raised alarm, the informant's mother and his younger brother Ram Bharose aged about 9 or 10 years, informant himself and wife of the informant Bhuri rushed towards sister of the informant and challenged the accused. At this stage, Ghaseeta exhorted that let them be caught and be murdered. Hearing this, the informant fled from there. Right then his sister Ram Bai was left but his younger brother Ram Bharose was taken away/abducted by the accused persons. Prior to this also, Ghaseeta had murdered his brother Jageshwar and his uncle Chhiddu and in the said case, he has been acquitted. It is further mentioned that his brother Ram Bharose has been kidnapped with a view to murdering him. When lot of hue and cry was raised, many other people of the vicinity /Mohalla collected there, who have seen the occurrence. Therefore, it was prayed that his younger brother be searched and necessary action be taken against culprits. Further, it was mentioned that because of fear he had not come in the night to lodge the report.

5. On the said report (Exhibit Ka-1) being presented at the police station Sumerpur, Case Crime No.118 of 1981 was registered under section 364 IPC against accused Ghaseeta son of Jageshwar @ Hagga Kahar; Babua son of Mangi Luhar and Haidar son of Roshan Musalman on 31.5.1981 at 5.45 a.m. by Constable Moharrir Ram Nath and he prepared chik report in his handwriting which is Exhibit Ka-4 and also made entry of this case in G.D. report no. 55 time 5.45 a.m., which is Exhibit Ka-5.

6. The investigation of this case was handed over to S.I. Man Singh Gaur, PW-6 who on 31.5.1981 recorded the statement of constable Moharrir Ram Nath at the police station itself and thereafter went to the place of incident in the morning at about 6.00 A.M. and recorded the statement of informant and his family members and prepared the site plan of the place of occurrence, which is Exhibit Ka-6. He also recorded the statement of witnesses Chunubad, Bhairam and Durjan. He also tried to find out about the accused and missing brother of the informant. On 6.8.1981 accused Babua surrendered in Court and thereafter the investigation was handed over to S.O. Jai Ram Singh Chandel.

7. Sri Jai Ram Singh Chandel, PW7 came to know on 8.6.19881 that accused Haidar was leaving Narayapur for Teliyan Ka Dera and accordingly arrested him and after his arrest, the said accused stated him that abductee had been murdered and was set ablaze about 50 paces away from Siddh Baba and that the bones of the said deceased would have been lying there which he could get recovered. Thereafter, the said accused Haidar took them to the said place where there were lying bones and some burnt clothes which were taken by him in possession and its Fard was prepared which is Exhibit Ka-2. He called there Krishna (informant), who after having seen half burnt clothes, stated that they belonged to his brother Ram Bharose which were underwear and bush shirt. Panchayatnama of bones was done which is Exhibit Ka-7 and Challan-nash of the bones is Exhibit Ka-8, which was prepared by him in his handwriting and the same was sent for postmortem. He also prepared the site plan of the said place of recovery which is Exhibit Ka-9. Thereafter, he recorded statement of witnesses of the said recovery namely Dev Raj Singh, Lakhan Singh and Bhurwa and returned to the police station and deposited the case property in the Malkhana and kept the alleged accused in Hawalat. The accused Ghaseeta could not be arrested, hence proceedings under sections 82 and 83 Cr.P.C. were initiated against him and thereafter on 12.6.1981, charge-sheet was submitted, which is Exhibit Ka-10.

8. The trial court framed charges against the accused-appellants under section 364, 302 read with 34 and 201 IPC on 11.2.1982 to which they pleaded to be not guilty and claimed to be tried.

9. In order to prove the prosecution case, the prosecution, has examined the informant Krishna (brother of the deceased) as PW1, Dr. V.N. Mehrotra as PW2, Chunubad as PW3, Ram Bai as PW4, Deoraj as PW5, Man Singh Gaur as PW6, J.R. Chandel as PW7 and Durjan Singh as CW1.

10. Thereafter, the prosecution evidence was closed and the statements of the accused were recorded under section 313 Cr.P.C. Both the appellants have taken the plea of false implication because of animosity. The accused Babu @ Babua has been falsely implicated under police pressure through MLA Dubey while the other accused Haidar has stated that the police was under pressure from MLA Pratap Narain and also some complaint was moved against police because of this he has been falsely implicated.

11. After having considered the entire evidence on record, the trial court has convicted the appellants and has sentenced as mentioned above.

12. Learned counsel for the appellants has vehemently argued that the deceased was stated to be 9-10 years old boy while the skeleton which is stated to have been recovered at the pointing out of the accused Haidar from open place after 6-7 days of the occurrence, age of the same is determined to be 12-14 years, hence the prosecution has failed to establish that the said skeleton was of deceased Ram Bharose. It is further argued that the entire evidence which has come on record, is misinterpreted by the trial court. There was no sufficient evidence to hold guilty and yet the trial court has drawn wrong conclusion and has ignored various discrepancies which were there in the prosecution evidence. Accordingly, it has been prayed that the trial court's judgment be set aside and the accused be acquitted.

13. On the other hand learned A.G.A. has vehemently argued that the trial court has passed the judgment of conviction against the accused-appellants strictly in accordance with law as there is eye witness account of the deceased having been taken away by the accused-appellant who had come with arm and were trying to take away the sister of the informant who was sleeping in the house of Durjan but when alarm was raised and the informant and all her family members came there besides the villagers, the accused had forcibly taken away/abducted the deceased Ram Bharose who was later on murdered by them and at the pointing out of accused Haidar, the skeleton of the deceased has been recovered which has clearly established guilt of the accused. There is no infirmity in the judgment and the same needs to be upheld.

14. We have to take into consideration the entire evidence on record and to form opinion as to whether the trial court has misread the evidence and whether the impugned order deserves to be interfered with.

15. PW1 Krishna who is informant of the case, in support of the FIR version has stated in examination in chief that about 11 months ago at about 1.30 a.m. he was sleeping in his house with his wife while in other house, his mother Budhiya and younger brother Ram Bharose were sleeping which was at a distance of 8-10 paces, while his sister Ram Bai was sleeping in the house of Durjan with the wife of Durjan. In the night at about 1.30 A.M., Ghaseeta (A-1), who has now died, Babua (A-2) and Haidar (A-3), who are accused present in Court, came at the door of Durjan's house and opened the latch which was closed from inside after inserting their hands and thereafter entered into the house. PW1 was witnessing the accused from his house opening the door of Durjan's house. All the three accused tried to forcibly dragged away his sister Ram Bai, whereon wife of Durjan and his sister raised alarm, then PW1, his wife, his mother and his younger brother Ram Bharose came out of their house and saw that Ghaseeta, Babua both were armed with guns and Haidar was armed with country made pistol and was having torch. PW1 and his other family members came to the rescue of PW1' sister at which accused Ghaseeta exhorted (Pakar Lo Salon Ko and Mar Do), on this PW1 returned to the door of his house. The accused left the sister of PW1 but caught hold of his younger brother Ram Bharose aged about 10 years. Because of it being night hours he did not go to lodge report in the night. He got the report scribed by Chunnu in his house which was given by him at the police station in the morning at about 5.45 a.m. which is Exhibit Ka-1 and which bears his thumb impression. He has further stated that much prior to this occurrence, Ghaseeta had murder his brother Jageshwar and uncle Chiddu. He had got acquittal in the said case. Ghaseeta, Babua and Haidar are friends of each other. He has further stated that after 8-9 days of the occurrence, he was called by the Inspector in the ''Har' of Siddh Baba where he was taken in a jeep by the constable and there he found burnt wood, clothes and bones. He identified the said burnt clothes to be that of his brother Ram Bharose who was wearing these clothes in the night when he was abducted. He further stated that the pieces of clothes which were shown to him, were pieces of bush shirt and underwear of his brother which were marked as material exhibits 1 and 2.

16. In cross-examination this witness has stated that Ram Bai, his sister had gone to sleep in the house of Durjan with his consent, who is married in village Rewai Sikaura. He denied that his sister had illicit relationship with accused Ghaseeta for a long time and of this, people from her matrimonial home had come to know. He also stated it to be wrong that his sister was thrown out of her matrimonial home because of this reason. The house of Durjan and his own house are situated in front of each other. There is no varanda in front of his house although there is one courtyard in his house. If one enters his house, he would face courtyard first. There is also a door in the rear side in the courtyard. He was sleeping after closing the door of his house. There is one narrow passage between his house and house of Durjan which would be hardly 2-4 paces in width. About 2-4 paces from the well, there is one house in which his mother and brother were sleeping. When the accused were opening the latch of house of Durjan, he could not see and, he by mistake had given statement above that he had seen them opening the latch.

17. The house of Durjan is situated adjacent of his own house towards south. The houses of Bhairam and Munna are also adjacent. The house in which his sister was sleeping, behind it, the house of Chirangoo is situated and 2-4 paces away from it the house of Chunubad is situated. When Ram Bai had raised alarm, first of all, he had come out of his house along with his wife and his brother had also reached there. Ram Bai was standing in front of the house of Durjan, who was held by accused Babua and Haidar and accused Ghaseeta was standing near them. The wife of Durjan was also standing. About this, he had written in his report that Babua and Haidar were holding his sister. Further, it is stated that he raised alarm that his sister was being abducted/taken away. It is not right to say that his sister had been taken by the accused upto ''Bari'. He has further stated that he stayed there hardly for 2-4 minutes and then ran away from there and came at the door of his own house. His mother and his wife had also fled from there and had come at the door of his house. When the accused had abducted/taken away his brother, then he returned into his house and Durjan also went to his house. When he had raised alarm, many people had come there but he could not recognize them. The police station is situated at about 100 yards away from his house. He had not told Durjan to accompany him to the police station because he was having some fear and on that date it was a dark night.

18. Further this witness has stated that to the north of his house is abadi. Adjoining to his house, there is house of MLA Sahab and the rear portion of his house belonged to MLA Sahab, where he keeps his cattle and at a little distance from there, there is his residential house. There is a well within the boundary wall of the house of MLA Pratap Narayan. After the well, there is a passage and thereafter is located the house of accused Haidar. He has further stated that he knows Kailash Dubey. His house is located near the house of Pratap Narain but he does not know whether there is any relationship between them or not. He does not know whether Dileep had filed a case under section 452 IPC or not against Kailash. The name of brother of Pratap Narain is Chunni Bhaiya. His sister was sleeping in the house of Durjan for the last 2-4 days because the wife of Durjan had asked for the same as her daughter had gone somewhere.

19. The place of Siddh Baba is located between Pandhari Sumerpur and Tedha. At that time canal was being dug, thereafter he said that he had not seen the canal. The constable had taken him towards canal where Sub Inspector was present. He stayed there for about 1 ½ hours. As soon as he reached there, sun had set and there some writing work was done but he does not recollect whether his thumb impression was taken thereon or not. Inspector had shown him the clothes which were lying there, which kind of clothes, he does know whether he could get in market or not but he had identified the clothes to be that of his brother. The said clothes were lying in a field which was situated towards east of Siddh Baba. The Inspector had sealed the clothes, ashes, bones and wood in 2 or 3 bundles. In the report which he had lodged, he had not given any details of the clothes which Ram Bharose was wearing. He had not told Inspector about the clothes. He had also not written in his report that Babua, Haidar and Ghaseeta were friends of each other. He denied that he was giving the statement after being tutored and had falsely implicated the accused due to animosity or party bandi.

20. The above statement needs to be read in the light of the site plan which has been prepared by the Investigating Officer. In site plan Exhibit Ka-6 by ''A' from where the informant PW1 and wife of the informant PW4 are stated to have seen the occurrence. By ''B' is shown the place where the sister of the informant namely, Ram Bai was sleeping with the wife of Durjan across the house of informant. By ''C' is shown place where the mother of informant and his brother Ram Bharose (Abductee) were sleeping. By ''D' is shown the place where the accused leaving the sister of informant had caught hold of Ram Bharose and abducted him. By arrow is shown the way by which the accused came and fled away. The distance between the places shown by ''C' and ''D' is mentioned 20 paces.

21. The site plant would indicate therein all the three places, where the informant and his wife are shown to be sleeping at place ''A', his mother and abducted brother Ram Bharose are shown to be sleeping at place ''C' and at place ''D' where sister of the informant and wife of Durjan are stated to be sleeping, are close to each other and therefore, it is quite likely that when an accused came to the house of Durjan and opened latch of the said house after inserting hand as same was closed from inside, where-after when alarm was raised by the informant's sister and the wife of Durjan, the informant, his wife, his mother and the abducted brother came to the place shown by ''D', is very natural because the said places were very near to each other and it cannot be disbelieved that when in the night hue cry has been raised, people would have assembled there and would have seen the occurrence. In the statement of informant, he has explained that he had mentioned it by mistake that he had seen the accused opening the latch of the house of Durjan as the said house is across the lane from his house because he could not see the accused opening the door as he was inside his house. Therefore, it is apparent that the informant could reach the place of incident shown by ''D' only after hue and cry was raised by his sister and the wife of Durjan and thereafter the accused left his sister and had taken away/abducted Ram Bharose, his younger brother and because of fear the informant had returned to his house along with his wife and other witnesses had also gone back to their respective houses/places. The testimony of this witness in respect of having seen the accused-appellants taking away his brother Ram Bharose, therefore, would be believable.

22. Sri Chunubad son of Buddhu has been examined as PW3. It is stated in examination in chief by him that he knows both the accused Babua and Haidar while Ghaseeta has died. He also knows the deceased Ram Bharose who is younger brother of the informant Krishna who had been murdered about one year ago after having been abducted by accused Babua, Haidar and Ghaseeta. It was 2.00 a.m. in the night, he was sleeping in his house and he came out of his house after hearing noise and reached near the house of Durjan and saw that Ghaseeta and Babua were armed with guns while Haidar was having a country made pistol. He had appealed to the accused to set free Ram Bharose but they told him that they would shoot him and therefore because of fear he could not say anything.

23. In cross-examination this witness has stated that Krishna is ''Kumhar' while he himself is ''Kanchhi'. There is one lane which exists between houses of Krishna and his own house, which is about 1 ½ yards in width. There is one room prior to his house and thereafter, courtyard. He was sleeping in his room. In the north of his house, there is ''Bari' of his brother which is about 3 to 4 Bighas. After ''Bari', there is one Gali and adjacent to Gali towards north, house of Durjan is situated. The distance between the house of Krishna from the house of Durjan is about 10 paces only. The house of Durjan which is situated north of ''Bari' is a place where he keeps his cattle. When at the time of occurrence, he came out of his house, he had seen Ram Bai near the house of Durjan where he used to keep cattle. He does not know as to whether she was sleeping in the night. He had met Krishna in the night itself. He has not told him anything about it. After eight days of the incident, police had recorded his statement. He has further stated that he knows Babua son of Ram Ratan but he does not know that any case of dacoity was faced by him. The said Babu had committed murder of the brother of Krishna namely, Jageshwar in collusion with Verma. Further, this witness has stated that he does not know where Ram Bai was married. Ram Bai had not gone to her matrimonial home after ''Gauna' rather she was staying in her house. He has further stated that he does work of labour in the day and returns home in the evening. He does not know whether Ghaseeta accused used to go stealthy to meet Ram Bai. He has apprehension from the side of accused of being killed. He remained at the place of incident for about one hour and did not run away and his children were also standing there. His house is situated at a distance of half mile from the police station. He does not know where accused had gone. He had not gone to lodge report at police station. He has stated it to be wrong that he was making false statement at the instance of informant Krishna.

24. This witness has further stated that the name of father of Haidar is Roshan and Roshan's brothers are Khalil and Jalil. He also knows Pratap Narain Dubey as well as Kailash Nrain who is nephew of Pratap Narain. This witness has further stated that there is one Dharamshala of Kumhar which is situated on Pandhari road, the management of which is looked after by Pratap Narain Dubey. In the said Dharamshal, Barat of Kumhar stayed. Bora Kumhar is not relative of informant. Khalil had filed a case under section 452 IPC against Kailash Dubey, he does not know. He stated it to be wrong that because of fear he did not oppose the miscreant/accused. He further stated that they (including him) had told the accused to leave the brother of the informant but when accused side gave threat, they could not resist and clarified that in his earlier part of his statement he had stated by mistake that he had given resistance to the accused. He has further stated that he did not tell the Investigating Officer that he found Krishna and Ram Bai at the place of occurrence and was saying so in the court for the first time. This witness has further stated that Inspector had come to the place of incident at 7.00 a.m. Prior to his meeting with the Inspector, he had not narrated about the occurrence to any one. When the accused had fled from the scene occurrence, he continued to remain in his house. He had seen the occurrence from the door of Durjan. The accused were holding Ram Bharose and carrying him towards south and were about 10 paces away from him. He further stated that he does Palledari in the market. In the morning he also holds a shop in Sumerpur market to sell Gobhi. When there was period of Zamindari, the father of accused Haidar used to realize Tehbazari. He had no quarrel with him. Because of being neighbour of the informant he has affection towards informant. Pratap Narain is a big person. He has children. Durjan has also daughter and son. He has stated it to be wrong that he was giving false statement under pressure from police as well as Pratap Narain Dubey.

25. In the site plan, the house of this witness has been shown to the south of the house of Durjan and in between there is a lane. The details of which have been given by this witness in respect of situation of his house and the distance from the place of incident is in consonance with the site plan. Since he is neighbour of the informant and his house was very close to the house of Durjan where incident happened, therefore, it seems to be very natural that when he heard hue and cry when accused were taking away the deceased Ram Bharose, he would have seen the occurrence as has been stated by him in the examination in chief. He has also stated that the accused were armed with weapons and it was very natural that when he tried to rescue the deceased Ram Bharose, he was threatened to be killed which compelled him to withdraw. The presence at the scene of occurrence of this witness is found to be proved by us in the light of the above statement made by him.

26. The other eye witness of the occurrence is Smt. Ram Bai (victim) who is sister of the informant and has been examined as PW4 by prosecution. She has stated in examination in chief that the deceased Ram Bharose had been murdered about one year ago and at that time she was sleeping at the house of Durjan whose house was at a distance of three paces from her own house. The wife of Durjan had told her to sleep with her as she was alone in the night. In the night of the incident, his elder brother Krishna was sleeping in his own house with her Bhaujai Bhuri. Her mother Bhudhia and brother Ram Bharose were sleeping in their house near the well. At about 1.30 A.M. in the night, the accused Babua, Haidar and Ghaseeta opened the latch (Sakar) after inserting their hand inside, as it was closed from inside and, opened the door and came in side the house. She got up. Babua and Haidar dragged her after holding her hand, whereon she raised alarm, hearing which, his brother Krishna, Bhaujai Bhuri, mother and brother Ram Bharose came there. It was dark but the accused Ghaseeta was having a torch. Her brother came near her to rescue her, the accused had threatened him as a result of which he fled from there. Thereafter, the accused had taken away her younger brother Ram Bharose with an intention to kill him. At that time, Babua and Ghaseeta were armed with guns and Haidar was having country made pistol.

27. In cross examination she has stated that she knows accused Ghaseeta right from the time when she started understanding things. His house is situated adjoining to gate of her house. The gate is near the well. Earlier the house of Ghaseeeta was situated near the house of Deviya which has now been purchased by Munna who does not live there now. Deviya is her father. The house was purchased by Munna from Ghaseeta about 5-6 years ago but she does not know whether Ghaseeta had knowledge about this fact or not that in the night of incident she was sleeping in the house of Durjan. She was not on talking term with Ghaseeta because he had killed his brother Jageshwar and his uncle Chheddu. In the said murder along with Ghaseeta, Ram Raj and Sundar were also accused. Ram Raj is the son of Parma. In the murder of Chheddu, Babua and Ghaseeta were accused but they were acquitted although she does not know who were the witnesses in that case. In the house of Durjan, where she was sleeping, there were only two rooms. She and wife of Durjan were sleeping on one cot in the court yard. When she heard the noise of Sakar (latch), she got up from the cot while wife of Durjan continued to sleep although she had also got up later on. She could not know when the latch was opened as to who had come in side. When Ghaseeta flashed his torch, Babua and Haidar caught her hand and then she recognized all the three accused. She did not raise alarm in the court yard but did raise alarm when she was dragging out of the house by the accused. The wife of Durjan was not caught by them nor did accused say anything to her. Durjan has three daughters who were all elder, in age, to her. All the three have children. In the night of occurrence, the daughters of Durjan were not in the house, while Durjan and his son were sleeping in Khaliyan. Inside the house only she and wife of Durjan were there. She had earlier slept in the house of Durjan.

28. Further, this witness has stated that prior to recovery of bones, the Investigating Officer had not taken her statement. She had stated to the Investigating Officer that when the accused caught her, she had made noise, hearing which, her brother had come and then the accused had given life threat. The door of Durjan's house opens towards the direction where sun arises as she does not have sense of direction. She was married when she was 5-7 years old and ''Gauna' had also happened. The married ladies fill ''Sindoor' but the ladies who are divorced by their husband, do not fill ''Sindoor'. Initially, she made a statement that her ''Gauna' had been performed but again stated that it was not performed because of which she does not fill ''Sindoor'. She stated it to be wrong that she was having illicit relationship with accused Ghaseeeta. Her Sasural is in Revai. She stated it to be wrong that she was thrown out by her matrimonial home. She has furthr stated that the house in which she was sleeping, belonged to Durjan, where he also keeps cattle. The other house of Durjan was lying vacant. The house, in which she was sleeping, has a gate and thereafter there was court yard. The gate was closed from in side. After the court yard, there is a room and thereafter again there is a court-yard. The court-yard is adjacent to the gate where she was sleeping. She had stated to the Investigating Officer where she was sleeping in the night of incident. She further stated that on being enquired by Court that there was only one court-yard in the house of Durjan where she was sleeping.

29. This witness has further stated that there were two rooms by the side of courtyard. Thereafter, she stated that courtyard was not there and when they (PW4) came out of courtyard then alarm was raised and upon it people of the Mohalla had reached there but she could not recognize anyone of them because of darkness. Shiv Prasad, Mahaveer, Bhaiya Deen, Raj Kumar, Munna Brahman were living at a small distance from her house. She had stated to the Investigating Officer that accused Babaua and Haidar had caught her hand but if the same has not been written, she could not tell its reason. She has also stated to the Investigating Officer that all the three accused had challenged his brother and if the same was not written, she could not tell its reason. When the accused challenged, his Bhaujai and brother fled from there, only she and her brother Ram Bharose kept standing and when the accused held his brother and dragged him, PW4 also concealed herself. At the exhortation of accused, her elder brother, mother and Bhaujai had also concealed themselves. After this occurrence, she had gone to the house where her brother and Bhaujai were sleeping. She had told everything to her brother. She had seen the accused flee towards ''Bari' which was located towards house of Chunubad. She has stated it to be wrong that she was giving false statement of being tutored.

30. It was argued by the learned counsel for the appellants that the statement of this witness is unbelievable as there were number of inconsistencies and it was also stated that she had illicit relationship with accused Ghaseeta and because of the said reason, she, despite being married in village Revai, was thrown out of her matrimonial home and therefore her testimony deserves to be discarded as the same is totally false and has been given only with a view to falsely implicating the accused. It is further argued that this was not possible for the accused to know as to where she was sleeping in the night i.e. there was no way in which the accused would know that she was sleeping in other person's house i.e. in the house of Durjan in the night of incident, where she is stated to have been sought to be dragged with evil intention but later on, on the informant and other family members of the informant having reached at the place of incident including the abductee, brother, Ram Bharose she was left there and Ram Bharose was taken away/abducted by the accused.

31. We are not inclined to accept this argument of the learned counsel for the appellant that the statement of PW4 should be discarded only she had some illicit relationship with the accused Ghaseeta and was discarded by her matrimonial home on this count. It has come in evidence that she was sleeping in the house of Durjan on the date of incident because the wife of Durjan was alone as her daughters were not there, therefore, her presence/sleeping in the house of Durjan would not be treated to be an occurrence which would be unbelievable.

32. The testimony of this witness needs to be interpreted in the light that she is an illiterate lady who does not have any sense of direction even. Few discrepancy with respect to her saying that there were two courtyards in the house of Durjan which was got clarified by the trial court and it turned out to be that there was only one courtyard, would only be treated to be misstatement because of illiteracy. By and large, the statement of this witness seems to be believable to us in respect to the fact that she was sleeping in the night of occurrence in the house of Durjan when the accused came to that house and opened the latch which was closed from in side and the accused entered the said house where-after she was tried to be dragged out but when the informant and other family members reached there on her raising alarm, the accused left her behind but her younger brother Ram Bharose was taken away.

33. PW2 Dr. V.N. Mehrotra has stated in examination in chief that on 9.6.1981 at 2.00 p.m. one skeleton was brought by Constable Jagdish Singh and Home Guard Dashrath from Sumerpur which was stated to be that of Ram Bharose son of Deviya, resident of Mohalla Chand, Quasba Sumerpur. He measured size of the dead body to be 141.446 cm. The cause of death could not be ascertained. Bones were preserved and he has proved his report Exhibit Ka-3 and further stated that all these bones belonged to a child who might have been between 12 to 14 years of age and the death may have happened 10 days prior to conducting of postmortem.

34. In cross-examination, this witness has stated that the period of 10 days was stated by him on the basis of conjectures as no exact data is available and it was possible that the deceased might have died 15 days ago also. No marks of injuries were found on the bones. There was no flesh on the bones, although he cited that the age of the deceased could be between 12 to 14 years. Further he has stated that identification of the bones was made by the Constable as well as the Home Guard and because of it being skeleton, there could not be written any mark of identification.

General Description of Bones. ( The post-mortem report is not very legible, however, effort is made to give out its contents as accurately as possible. )

35. Bones are lying individually. Head is attached with vertebral column. Pelvis is attached with femur bone, sacrum and lumbar vertebrae. Bones are whitish, few are burnt at free end, few bones have been gnawed by animal. Ligaments are attached with bone. Epiphysis and bone of arm two ligaments have not fused with main bone. Maximum length of one femur bone is 32 cm. All the bones are of one individual and are of a male child. Following bones are found.

i) Skull are intact.

ii) Pelvis one.

iii) Bones of lower limbs - two femur attached with pelvis. Lower end of right femur is absent. Both tibia and fibula, upper half pelvis present. Lower ends are burnt. Few bones of foot i.e. two calcanium, few meta carpals, two meta carpals, bones present attached with ligaments calcanium bones are present.

iv) Upper limb bones - two scapula partially burnt, one clavicle partially burnt, bones of arm and fore arm i.e. humerus and radius and ulna bones present, and are partially absent and burnt. Three meta carpal bones and few burnt bones present.

v) Thorax - 7 cervical, 12 thoracic, 4 lumbar vertebrae attached with 16 ribs of right and left side present, 7 ribs lying separately, ends of few ribs are burnt.

vi) Lower jaw lying separately containing 14 teeth, second molar is erupting bone, not come out fully with jaw. Upper jaw also contains 14 teeth, second molar is erupting, few have not come out completely.

36. Sri Dev Raj son of Ram Prasad has been examined as PW5. It is stated by him that the accused Haidar was arrested near Telin Dera by the Inspector at about 4.30 p.m. The said accused had disclosed in front of him that about 8-9 days ago at about 10-11 P.M. in the night he had taken away Ram Bharose to Siddh Baba's place and he was murdered at about 4.00 A.M. and his dead body was burnt. After the said statement made by Haidar, PW5 went to Siddh Baba's place where he found half burnt woods, bones and clothes. Thereafter, the informant Krishna, brother of Ram Bharose was called there by sending a jeep by the Inspector. Krishna after having seen the clothes stated that the said clothes are of his brother Ram Bharose. The inspector had performed the writing work and sealed the articles recovered and made its Fard recovery which is Exhibit Ka-2. The Panchayatnama of bones was also prepared in which PW5 was also a witness and had signed the same.

37. In cross-examination, this witness has stated that he is a resident of Surauli. In Sumepur he had stayed for about 2-3 years. From Telin Dera Sumerpur, the Inspector had taken him to the place of incident as he had met him on the road itself at about 4.15 P.M. To the east of Dera, Haidar was arrested by the Inspector without any ''maar-peet'. The Inspector has written only that there were only three people. Rest of the paper was completed at Siddh Baba's place and was signed by PW5 and others. The signature of Haidar was not taken thereon. The said Fard also bears the signature of informant. At Telin Dera, he had stayed hardly for about 3-4 minutes and had reached at the Siddh Baba's place at 5.00 P.M. where they stayed for about half hour and informant Krishna had reached by 5.30 P.M. The whole writing work was done. Seal was also applied and entire proceedings were completed only after Krishna had reached. On these papers including Panchayatnama and recovery memo, the thumb impression of Haidar was not obtained. They had returned at about 7.00 P.M. at police station, by then sun had set. Near the place of Siddh Baba, there is one canal. He cannot tell as to in which direction the same was situated. The field in which bones were found, he cannot tell its boundary. He stated it to be wrong that he was a police informer. He further stated that there could be other persons also of his parentage. He had given statement in one or two cases. A number of cases were suggested and was asked whether he had given statement in those cases to which he stated that in these cases he had neither given statement nor was he a witness in those cases.

38. This witness is a person before whom the accused Haidar is stated to have confessed that the deceased Ram Bharose was abducted by him and thereafter killed and his dead body was burnt and on the disclosure made by the said accused Haidar, half burnt clothes and bones etc. were found from the field which was located close to Siddh Baba's place and Panchayatnama was also prepared in front of him. This witness has denied to be a police informer in cross-examination. We find from his testimony that the prosecution has sought to prove that pursuant to the disclosure statement made by the accused Haidar, the dead body/bones of the deceased were recovered from the said place regarding which site plan Exhibit Ka-8 was also prepared. The said site plan shows that at place shown by ''A' which is a field of Gulab son of Terha, the said bones were found allegedly of the deceased Ram Bharose, which place has been shown to be about 4-6 kms. away from village Panndhari Terha, Deo Gaon and Sumerpur, the distance of which have been shown in the site plan. Therefore, it is apparent that according to prosecution, the deceased Ram Bharose was abducted and thereafter, after having been murdered, was burnt at a distance of about 4-5 kms.

39. PW6 S.I. Man Singh Gaur who is Investigating Officer, who had partially conducted the investigation of this case has stated in cross-examination that it was wrong to say that the written report was prepared with his consultation and that Chunni Lal was a person of the police station. He does not know whether on 14.4.1981 the father of the accused had given an application at the police station Sumerpur against the officials of the police station. He has also stated that the grandfather of the accused namely Buddhu Shah had not given any application against the police personnel. He does not know whether Kailash Narain Dubey is neighbour of Pratap Narain Dubey or is his relative. He also does not know that any case under section 452 IPC has been registered against the uncle of the accused namely, Kailash son of Kedar Nath. He has further stated that in the site plan he has shown only one courtyard in the house of Durjan as there was only one court-yard. When one enteres in his house first of all, Barotha lies there and thereafter lies courtyard. He has not shown in the site plan the location of witnesses from where they had seen the occurrence because he had not made inspection of the place of incident at the instance of witnesses. Ram Bai had not given statement that Haidar had held her hand and was trying to take her away rather she had stated that Babua had held her hand. He denied the suggestion that because of being annoyed with accused, he had falsely challaned them. He has further stated that he had not shown the distance of the well situated near the house of P.N Dubey from the house of Durjan because he did not consider it important. He also did not show 'Bari' of Chunubad in the site plan. The houses of Durjan and Haidar are adjacent to each other, hence he did not consider it important to mention their distance. He has not shown the distance of the house where Ram Bai was sleeping from the house of Krishna nor he has shown the width of the passage between the two houses. In the house of Krishna there are two rooms and one Atari. He had recorded the statement of wife of Durjan namely Budhiya. He had no knowledge that the relations between Durjan and Krishna were not good.

40. PW7 S.I. Jai Ram Singh Chandel who is other Investigating Officer of this case has stated in cross-examination that he had arrested Haidar on 8.6.1981 at 4.35 p.m. during which Haidar had received injuries also and he had obtained his thumb impression on the memo of his arrest as well as memo of recovery. He had not obtained the signature of thumb impression of informant Krishna on the recovery of bones. He has not made any mention about Krishna on the Fard prepared in respect of collecting bones and clothes because he was not present on the spot. The informant was called subsequently and regarding it, reference is made in the case diary. After preparing recovery memo, Panchayatnama was filled up and thereafter bones were sealed and the clothes after being identified, were also sealed. As soon as Panchayatnam had been prepared, the informant had reached the place of incident and on the said night this witness remained present there till 9.00 p.m. He had finished the Panchayatnama till 7.30 p.m. and sealing work was also over. He had called informant through constable Jagdish Prasad but he does not know whether Jagdish Prasad was brought after being woken up. The original G.D. was not in front of him, therefore, he could not tell as to who had prepared G.D. and he had denied the suggestion that Dev Raj and Chunubad were habitual witnesses of police.

41. Court witness Durjan Singh who was examined by Court as CW1 has stated in examination in chief that his house is situated in Bharua Sumepur. The house of Krishna and his own house are in front of each other. Ram Bai, PW4 is sister of Krishna. The brother of Krishna namely Ram Bharose has been killed two months ago. The name of CW1's wife is Munia who had come to Kutchery. In the night of occurrence Ram Bai was in his house because she used to often sleep in his house. In the night at about 1.30 A.M. accused Haidar and Babua both present in Court along with Ghaseeta had come in side his house after opening the outer door and were trying to drag away Ram Bai, whereon hue and cry was made by them, on which Ram Bharose and his mother came there, whereafter the accused left Ram Bai and had taken away Ram Bharose. Krishna was shouting from in side his house and did not come near the accused. Haidar had threatened him that if he deposes against him, he would be cut him to pieces. He has come to court when he has received warrant from the Court.

42. In cross-examination, this witness has stated that he knows Krishna. When accused had brought Ram Bai out side from his house, then alarm was raised, hearing which people had come there but he did not see Krishna because of it be dark night. He has further stated that his brother's namely is Parma whose sons are Ram Raj and Sundar. He does not know Krishna's father's name as he has no relationship with him. He could not tell that in the murder of Chheddu, the family members of Krishna had implicated his brother and other family members or not. He also does not know whether the father of Krishna had ever teased his wife. His wife had never initiated any case against the father of informant Krishna. His daughter's name is not Gangiya. He has only one daughter whose name is Munni. His wife had never lodged any report against the father of Krishna with respect to his entering her house and making fire. The Investigating Officer had not been stated by him that in the night of incident Ram Bai was sleeping in his house nor had he told him that the accused had dragged away Ram Bai from his house. He has stated it to be wrong that he was stating so on being tutored.

43. Further, he has stated that in the house in which he was sleeping, there was one ''Bakhari and he, his wife and Ram Bai were sleeping in the same Bakhari and that he was not sleeping in Khaliyan. He has stated it to be wrong that the police has pressurized him.

44. We find that according to prosecution case occurrence took place in the intervening night of 30/31.5.1981 at about 1.30 A.M. when it is stated that the accused Ghaseeta, Babua and Haidar had come to the house of Durjan in whose house the sister of informant was sleeping with the wife of Durjan and all these accused were armed with fire arm weapons and they entered the house after opening latch of the main door after inserting hands as the same was closed from in side and after opening the same, they tried to take away informant's sister who raised alarm along with wife of Durjan who was also in side the house and upon the said alarm being raised, the informant, his wife, younger brother (deceased) reached the place of incident i.e. house of Durjan and saw that the accused were trying to forcibly take away the sister of the informant and having seen these persons, the accused left the sister of the informant and in stead took away/abducted the brother of the informant namely Ram Bharose who is stated by the prosecution to have been killed by the accused persons and thereafter he was burnt. It is also stated that his dead body was recovered from a place which was located at a distance of about 5 kms. from village Sumerpur near Siddh Baba's place, where some burnt bones, woods and clothes of the deceased were recovered at the pointing out of one of the accused namely Haidar who had taken the police force there and got the recovery made.

45. We have noticed several discrepancies in the statement of witnesses in respect to several points but we do not find that such contradiction will go to the root of the matter so as to disbelieve/discard their entire testimony. It is often seen that witnesses of rural background do exaggerate the statement in over enthusiasm but we do know that the principle of Falsus in Uno, Falsus in Omnibus (False in one thing, false in everything) is not applicable in India. Therefore, we have to believe that much of the statement of witnesses which is found to be believable leaving aside that part of the statement which is found to be false.

46. We find that it is clearly stated by PW1 who is informant as well as PW4 who is the sister of the informant with whom the occurrence had taken place that the accused had come to the house of Durjan and had opened the door of the house of Durjan where PW4 was forcibly tired to be taken away but alarm was raised by her and the wife of Durjan, hearing which informant, his mother, his wife and younger brother Ram Bharose had come there but when they were threatened by the accused, they went away from there but they saw that in place of sister of informant who was left behind by the accused, Ram Bharose who was younger brother of the informant was taken away by the accused. It is also corroborated by the statement of Chunubad who is PW3 who is resident of place which is situated very close to the house of Durjan as is evident from the site plan. We find that presence of all these witnesses on the place of occurrence is undoubtly believable and there is no reason why we should disbelieve the testimony of these witnesses to the effect that the accused appellants had taken away Ram Bharose in their presence and they were not in a position to oppose them because accused were fully armed and because of apprehension of being killed they might have withdrawn from the place of occurrence. But as regards causing death of Ram Bharose by the accused, we do not find any cogent evidence on record. It has come in evidence that it was only on the basis of confessional statement made by one of the accused namely Haidar that so called dead body of Ram Bharose was recovered, identification of which is stated to have been made by the informant by looking at his clothes about 8 days after his having been taken away. The prosecution has sought to establish the identity of the deceased also on the basis of medical report of PW2 Dr. V.N. Mehrotra who has stated that the bones which were found by him, description of which has been given above, belonged to a person /child of the age between 12-14 years. We are not inclined to accept this to be a conclusive prove of the fact that the bones which are alleged to have been recovered on the pointing out of one accused Haidar, were actually of Ram Bharose who was abducted by the accused appellants. It may be pointed out that the DNA test was required to be conducted, to establish beyond doubt that the said bones were of Ram Bharose i.e. brother of informant but we do not see that any such effort was made by the prosecution, which is a very important link missing in the present case to establish that the said bones were of Ram Bharose and further merely on the basis of clothes which PW1 has identified to be that of Ram Bharose, we find that it is also very difficult to identify the clothes after eight days and that too in burnt condition. Therefore, we are of the view that so far as the prosecution case is concerned, it stands proved only to the extent that the accused-appellants along one accused who has died, had abducted Ram Bharose with an intention to murder him. Therefore, the offence under section 364 IPC is found proved which the trial court has also found proved. To that extent, we are in agreement with the judgment of the trial court. But so far as the conviction under section 302 read with 34 and 201 IPC is concerned, we find that there is no sufficient evidence on record to prove beyond reasonable doubt that in fact it was accused-appellants who had actually murdered Ram Bharose as the dead body of the abductee cannot be held to have been found. Hence, we are of the view that the judgment of the trial court needs to be set aside with respect to conviction of the accused appellants under section 302/34, 201 IPC while the same deserves to be upheld with respect to their conviction under section 364 IPC. The conviction and sentence awarded by the trial court is maintained in respect of section 364 IPC, however, they stand acquitted of charges under section 302/34, 201 IPC.

47. Accused Haidar is already in jail.

48. Let a copy of the judgment be transmitted to the trial court expeditiously along with lower court record with a direction to the trial court to ensure that the accused appellant Haidar serves out the remaining sentence in accordance with law.

49. The appeal stands partly allowed.

 (Dinesh Kumar Singh-I, J.)    (Ramesh Sinha, J.)

Order Date :- 10.5.2019

AU