Allahabad High Court

Ram Bihari And Another vs State Of Up on 28 May, 2025

Author: Saumitra Dayal Singh

Bench: Saumitra Dayal Singh





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


                                               Neutral Citation No. - 2025:AHC:90858-DB
 
Reserved on:-  14.05.2025
 
Delivered on :- 28.05.2025
 

 
Court No. - 45
 
Case :- CRIMINAL APPEAL No. - 2074 of 2024
 
Appellant :- Ram Bihari And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Tarun Jha
 
Counsel for Respondent :- G.A.
 
Hon'ble Saumitra Dayal Singh,J.

Hon'ble Sandeep Jain,J.

Per: Hon'ble Sandeep Jain, J.

1. Heard Sri Rajkumar Sharma along with Sri Tarun Jha, learned counsel for the appellants and Sri V.P. Yadav, learned A.G.A. for the State.

2. This criminal appeal has been preferred by the convicted accused-appellants Ram Bihari and Arun against the judgment and order dated 20.01.2024 by Shri Mohd. Qamar, Additional District & Sessions Judge/Special Judge (Rape and Pocso), Jalaun at Orai in Session Trial No.98 of 2017 (State Vs. Ram Bihari & another), arising out of Case Crime No.63/2017 P.S. Aata, District Jalaun, whereby both the accused Ram Bihari and Arun have been convicted under Section 302/34 IPC and sentenced to undergone life imprisonment alongwith a fine of Rs.15,000/-, in default to undergo, further rigorous imprisonment of six months.

3. The prosecution version unfolded as: The first informant Sri Kishun (PW-1 at the trial) gave an application (Ex.Ka-1) on 02.04.2017 at police station Aata, District Jalaun with the averments that on 01.04.2017 his father Kashiram had gone to village Parasan to hire a horse for marriage. On 02.04.2017, he was informed at about 08:00 AM by Uma Shanker (PW-2 at the trial) by telephone that his father Kashiram aged about 62 years had been axed to death, by the accused Ram Bihari and Arun, at about 08:00 AM, in front of the house of Bhoore. Accused Ram Bihari was holding an axe. This incident was seen by Uma Shanker (PW-2 at the trial) and Suresh (PW-3 at the trial). The dead body was lying on the spot of occurrence. On the basis of the above application (Ex.Ka-1), FIR regarding the incident was registered on 02.04.2017 at 12.40 hours, being Case Crime No.63/2017, under Section 302 IPC against the accused-appellants Ram Bihari and Arun and a corresponding entry in G.D. was made at serial No.26 at 12.40 hours. The check FIR is Ex.Ka-12 and the G.D. entry is Ex.Ka-13.

4. The 'Panchayatnama' of the deceased Kashiram was prepared by S.I. Kamal Pratap Singh on 02.04.2017, which is Ex.Ka-2. The postmortem examination of Kashiram's dead body was performed by Dr. Basant Lal (PW-7 at the trial) on 02.04.2017 between 4:00-5:00 PM. The following ante-mortem injuries were found on the body:-

(i) Incised Wound (7cm x 4cm) upto bone fracture of lateral wall of left orbit, left maxillary bone and left zygomatic arch and process of mandible margins are ragged, bleeding present. Wound present left side of face.

(ii) Incised Wound (2cm x 6cm x 1cm) present on the anterior aspect of neck joint above the thyroid cartilage, margins are ragged (not clean cut), bleeding present.

(iii) Incised Wound (7 cm x 4 cm x 5 cm deep) present on the mid part of neck left side, great vessels of neck and other major vessels and structure are damaged, bleeding present.

(iv) Lacerated Wound (1cm x 5 cm x 0.5 cm) present midline of neck just below the injury No.IV margins are ragged, bleeding present.

(v) Abrasion (13 cm x 1 cm) present on the upper part of chest, no bleeding.

5. According to the doctor PW-7, Kashiram died about 1/3 day prior to the time of postmortem examination, due to shock and haemorrhage as a result of ante mortem injuries. The postmortem report is Ex.Ka-4.

6. The investigation was taken over by the S.H.O. Police Station-Aata, Vinod Kumar Mishra (PW-9 at the trial) who prepared the Site Plan on 02.04.2017, which is Ex.Ka-14. On 05.04.2017 a blood stained axe, allegedly used in the incident, was recovered from the possession of the accused Ram Bihari in the presence of witness Shankar (PW-5 at the trial) and Baijnath (PW-4 at the trial). The recovery memo of the axe is Ex.Ka-3. After investigation, charge sheet Ex.Ka-15 was submitted by Vinod Kumar Mishra PW-9 against the accused Ram Bihari and Arun under Section 302 IPC, on which cognizance was taken.

7. The trial court framed charge against both the accused-appellants under Section 302/34 IPC on 03.07.2017, to which they pleaded not guilty and claimed trial.

8. During the trial the following prosecution witnesses were examined who had proved the following documents/material:-

Sl. NO.

Witnesses

Documents Proved

1.

Sri Kishun, first informant as PW-1

Proved the 'tehreer' as Ex.Ka-1 and the 'Panchayatnama' as Ex.Ka-2

Uma Shanker as PW-2

He has identified his signature on 'Panchayatnama' Ex.Ka-2.

Suresh as PW-3

Not proved any document.

Baijnath as PW-4

He has proved the recovery memo of axe as Ex.Ka-3.

Shankar as PW-5

Not proved any document.

Ravi Karan as PW-6

He has identified his signature on 'Panchayatnama' Ex.Ka-2.

Dr. Basant Lal as PW-7

Proved the postmortem report of the deceased Kashiram as Ex.Ka-4 and prosecution papers accompanying the dead body as Ex.Ka-5 to Ex.Ka-11.

Constable Amit Kumar Sharma as PW-8

He has proved the check FIR as Ex.Ka-12 and computer copy of the G.D. entry No.26 time 12.40 hours dated 02.04.2017 as Ex.Ka-13.

Vinod Kumar Mishra, S.H.O. as PW-9,

He has proved the Site Plan of the spot of occurrence as Ex.Ka-14 (wrongly mentioned as Ex.Ka-9) and identified his handwriting and signature on recovery memo of axe dated 05.04.2017, which has already been proved as Ex.Ka-3, proved the charge sheet against the accused as Ex.Ka-15, axe recovered from the possession of accused Ram Bihari as material Ex-1, blood smeared and plain soil collected from the spot as material Ex-2 & 3, blood smeared Gamcha of the deceased as material Ex-4.

10.

Head Constable Subhash Chandra as PW-10

Not proved any document.

9. The first informant Sri Kishun PW-1 deposed in his examination-in-chief that he is illiterate, his father was deceased Kashiram, who has been murdered. The incident took place on 2nd day of Chaitra month at about 08.00 AM. The incident took place about one year ago. On the day of the incident, his father Kashiram had gone to village Parasan, to hire a horse for his younger brother's marriage, then his father was axed to death by Ram Bihari and Arun. At the time of the incident, he was in his village Devkali. He was informed about the incident by Uma Shanker on phone, then he went to village Parasan and saw his father's dead body. Thereafter he went to the police station for lodging the complaint. Tehrir was scribed by Raghvendra, on which he had affixed his thumb impression. This witness proved the Tehrir given at the police station on 02.04.2017 as Ex.Ka-1 and also proved the 'Panchayatnama' of his deceased father as Ex.Ka-2. This witness further deposed that his father(Kashiram) was killed by the accused because previously, Kashiram had murdered Ram Bihari's father Bharat, for which Kashiram was sent to jail, and to avenge Bharat's death, the accused had axed his father (Kashiram) to death. The police had enquired from him regarding the incident. This witness identified both the accused in the Court and had further deposed that due to terror of the accused, they started residing in village Devkali. This incident was seen by Uma Shanker and Suresh, who are residents of Parasan.

10. The informant PW-1 deposed in his cross-examination that he had neither seen his father getting killed nor he was present at the spot of occurrence. On the basis of information received on phone, he had registered a report against accused Arun and Ram Bihari. His father had a brother. He is residing in Devkali with his family since the year 2003. He resided in village Parasan for about 28 years. In village Parasan, his house and agricultural land is situated. He knows that his father, alongwith Lalaram were sent to jail for the murder of Bharat. Village Parasan is at a distance of about 30 kilometers from Devkali. In between the two villages, there is a jungle stretching for about 3 kilometers. He was informed of his father's murder at about 8:00 AM, on the day of the incident, on phone. He did not know the phone number, from which information was received. When he reached Parasan, then 100 number of police personnel along with the villagers were present. It took him about 30 minutes to reach his father's dead body.

11. Uma Shanker PW-2, deposed in his examination-in-chief that he had not seen Kashiram, since he(Kashiram) went to village Devkali leaving village Parasan. He is less educated. The 'Panchayatnama' of Kashiram's dead body was prepared in his presence on which Ravi Karan, Shiv Charan and Udal had also signed. This witness proved the 'Panchayatnama' of deceased Kashiram as Ex.Ka-2. This witness denied that on 01.04.2017, Kashiram went to village Parasan for hiring horse for a marriage, then he was axed to death by Ram Bihari and Arun. He further denied that Kashiram had told the accused that since he had killed their father and Baba, he will also kill them and on hearing this, in anger, the accused Ram Bihari axed Kashiram to death. He also denied that he along with Suresh had seen this occurrence and had given this information on phone. This witness was declared hostile by the prosecution and in cross-examination by the State, denied his previous statement under Section 161 Cr.P.C. This witness in cross-examination by State denied that he had entered into a compromise with the accused, as such, he was not giving evidence against them. In cross-examination by the accused, this witness further deposed that Bharat was father of accused Ram Bihari. In Bharat's murder case, Kashiram and Lalaram were accused. Bharat's father Harprasad was also killed in which, Kashiram was accused. Kashiram had criminal antecedents, who used to live in jungle with miscreants. Village Devkali is at a distance of about 30-40 kilometres from his village Parasan and in between them, there is a jungle.

12. Suresh PW-3 deposed in his examination-in-chief that on 02.04.2017 at about 8:00 a.m., he was present at Rajkot, Gujarat and in his presence, the accused had neither killed Kashiram nor he had seen the incident. He neither knew Uma Shanker nor first informant Sri Kishun. This witness was also declared hostile by the prosecution and in cross-examination by the State, denied his previous statement under Section 161 Cr.P.C. In cross-examination by the accused, further deposed that on the day of the alleged incident, he was not present in village Parasan, but was present in Rajkot, Gujarat and had never seen deceased Kashiram. Kashiam had not resided in his village Parasan. Many days after the incident, on arriving at village Parasan, he was told by people that Kashiram's dead body was found in the jungles of Devkali, in a remote place. Kashiram was not killed in village Parasan in front of Bhoore's house, he did not knew Uma Shanker.

13. Baijnath PW-4 deposed in his examination-in-chief that, in his presence on 05.04.2017, accused Ram Bihari and Arun were neither arrested by the police nor police had recovered an axe from accused Ram Bihari. The police had not sealed any axe in his presence. The police got affixed his thumb impression on a blank paper. This witness identified his thumb impression on the recovery memo of blood stained axe, allegedly used in the crime, and proved it as Ex.Ka-3. This witness was also declared hostile by the prosecution. In cross-examination by the State, this witness denied his previous statement under Section 161 Cr.P.C. In cross-examination by the accused, this witness further deposed that accused Ram Bihari's father Bharat was murdered in which Kashiram was tried. The police personnel had not written Ex.Ka-3 in his presence.

14. Shankar PW-5 deposed in his examination-in-chief that on 05.04.2017, the police had neither arrested accused Ram Bihari and Arun nor had recovered an axe, allegedly used in the crime, from accused Ram Bihari. The police had also not sealed an axe in his presence. The police personnel got affixed his thumb impression on a blank paper. This witness was also declared hostile by the prosecution. In cross-examination by the State, this witness denied his previous statement under Section 161 Cr.P.C.

15. Ravi Karan PW-6 deposed in his examination-in-chief that he is a resident of village Parasan, P.S. Aata, District Jalaun. He knew deceased Kashiram, whose 'Panchayatnama' was prepared in his presence on which he signed. This witness identified his signature on the 'Panchayatnama' of deceased Kashiram, which has already been exhibited as Ex.Ka-2. This witness further deposed that the police personnel had not read over the 'Panchayatnama' to him and had only obtained his signature. In cross-examination, this witness further deposed that deceased Kashiram's body was found in jungle of Parasan and 'Panchayatnama' was also conducted there. Kashiram's dead body was not found in front of the house of Bhoore. The accused had not murdered Kashiram.

16. Dr. Basant Lal PW-7 deposed in his examination-in-chief that on 02.04.2017, he conducted the post-mortem examination of Kashiram's dead body. The injuries found on the dead body have already been mentioned previously in this judgment. According to the Doctor, Kashiram died about 1/3 day, prior to the time of autopsy, due to shock and haemorrhage as a result of ante-mortem injuries. This witness proved the post-mortem report of deceased Kashiram as Ex.Ka-4.

17. PW-7 also proved other prosecution papers accompanying the dead body as Ex.Ka-5 to Ex.Ka-11. He further deposed that Kashiram could have been axed to death on 02.04.2017 at 8:00 AM. In cross-examination this witness further deposed that the deceased could have died at 4:00 AM. Injury No.5 to the deceased could have been caused by an axe if struck from the reverse side, with lesser force.

18. Constable Amit Kumar Sharma PW-8 proved the check FIR and the computer copy of the G.D. entry No.26/12:40 hours dated 02.04.2017, respectively as Ex.Ka-12 and Ex.Ka-13.

19. Vinod Kumar Mishra PW-9 deposed in his examination-in-chief that on 02.04.2017, he was posted as S.H.O at P.S. Aata, then had taken over investigation of this case and had recorded the statement of witnesses. This witness proved the Site Plan of the spot of the occurrence as Ex. Ka-14 (wrongly mentioned as Ex.Ka-9). This witness also identified his handwriting and signature on the recovery memo of axe, which has already been proved as Ex. Ka-3. This witness further proved the charge sheet against the accused as Ex. Ka-15, the axe allegedly recovered from the accused Ram Bihari as material Ex-1, blood smeared soil and plain soil recovered from the spot of occurrence as material Ex-2 & 3 and the blood smeared Gamcha of deceased Kashiram as material Ex-4.

20. In cross-examination PW-9 deposed that Devkali is at a distance of about 15 km from village Parasan. Deceased Kashiram belonged to village Devkali and the incident took place in village Parasan. Accused were arrested from jungle on 05.04.2017, and at the time of arrest of accused Ram Bihari, axe used in the incident, was recovered from him. He prepared the recovery memo on the spot, but the time of recovery is not mentioned in it. He inadvertently failed to obtain the signature of accused on the recovery memo. The witnesses of recovery, Baijnath and Shankar accompanied him. He denied that he had not prepared Ex. Ka-3, the recovery memo of the axe, on the spot and had obtained the thumb impressions of witnesses Baijnath and Shankar on a blank paper. He had not prepared the Site Plan of the spot of recovery of axe.

21. Head Constable Subhash Chandra PW-10 deposed in his examination-in-chief that he had delivered the sealed blood stained axe, blood smeared soil and plain soil and blood smeared Gamcha of the deceased on 25.04.2017 to the Forensic Science Laboratory, Agra for forensic analysis.

22. The accused in their statement under Section 313 Cr.P.C. denied the prosecution story and stated that they had been falsely implicated due to enmity.

23. The report of Forensic Science Laboratory, Agra dated 28.01.2020 is also available on record, according to which, on axe and soil, blood was found disintegrated, as such, its origin could not be determined. On the Gamcha of the deceased, human blood was found.

24. Learned counsel for the appellants submitted that the informant PW-1 is not an eye witness of the alleged murder of his father Kashiram, the alleged eye witnesses Uma Shanker PW-2 and Suresh PW-3 turned hostile and the recovery of axe, allegedly used in the incident, from the possession of accused Ram Bihari, was denied by recovery witnesses Baijnath PW-4 and Shankar PW-5.

25. Learned counsel for the appellants further submitted that there is no eye witness of the alleged incident and there is no circumstantial evidence against the accused. The prosecution failed to prove its case against the accused but still the learned trial court convicted the accused- appellants, which is perverse. The chain of circumstances proven against the appellants is incomplete.

26. Learned counsel for the appellants further submitted that on the basis of evidence of police personnel alone, the accused could not have been convicted.

27. With these submissions it has been prayed that the present criminal appeal be allowed and accused-appellants be acquitted of all the charges levelled against them.

28. Per contra, learned AGA submitted that due to monetary consideration, eye witnesses PW-2 & PW-3 turned hostile. Similarly, the recovery witnesses of blood stained axe PW-4 and PW-5 turned hostile and due to this, the trial court relied on the evidence adduced by police personnel and had rightly convicted the accused for the murder of informant's father Kashiram. The prosecution has proved the motive on the part of accused, for committing the offence. With these submissions it has been prayed that the criminal appeal be rejected.

29. From the evidence of informant Sri Kishun PW-1 it is evident that, at the time of incident he was in his village Devkali and then he was informed by Uma Shanker, PW-2 on phone, that his father Kashiram had been axed to death. Informant PW-1 has proved the 'Tehrir' as Ex.Ka-1 and the 'Panchayatnama' of his deceased father as Ex.Ka-2. He subsequently admitted in the cross-examination that he had neither seen his father getting killed nor he was present at the spot of the occurrence. The informant PW-1 mentioned in his examination-in-chief that his father Kashiram was killed by the accused because previously Kashiram had murdered accused Ram Bihari's father Bharat, for which Kashiram was sent to jail and to avenge the death of Bharat, the accused axed Kashiram to death. It is evident that PW-1 has proved the motive of the offence, but he is not an eye-witness of the incident.

30. According to the prosecution Uma Shanker PW-2 and Suresh PW-3 had witnessed the incident but during trial, both these witnesses had not supported the prosecution case and had been declared hostile by the prosecution. Both these witnesses denied their previous statements given to the Investigating Officer PW-9 under Section 161 Cr.P.C. In view of this, there is no eye-witness of the alleged incident.

31. It is the case of the prosecution that the accused axed Kashiram to death and the axe used in the offence was recovered at the time of arrest of both the accused on 05.04.2017, from the possession of accused Ram Bihari, and the recovery memo (Ex.Ka-3) of axe was prepared by SHO Vinod Kumar Mishra PW-9 on 05.04.2017 in the presence of public witnesses Baijnath PW-4 and Shankar PW-5. But from the evidence of PW-4 and PW-5 it is evident that, they had also not supported the prosecution case during trial and had been declared hostile by the prosecution. Both PW-4 and PW-5 denied their previous statements given to the police under Section 161 Cr.P.C. Both PW-4 and PW-5 denied that accused were arrested in their presence and recovery of axe was effected from accused Ram Bihari. In these circumstances, the alleged recovery of axe from accused Ram Bihari is highly suspicious.

32. Dr. Basant Lal PW-7 proved the post-mortem report of the deceased Kashiram as Ex. Ka-4. In the post-mortem examination of the deceased, three incised wounds have been found on his face and neck. In the opinion of the doctor, Kashiram could have been axed to death on 02.04.2017 at about 08.00 AM. From the evidence of doctor PW-7, it is proved that, Kashiram was axed to death.

33. The Investigating Officer Vinod Kumar Mishra PW-9 proved the Site Plan of the spot of occurrence as Ex.Ka-14. This witness had also prepared the recovery memo (Ex.Ka-3) of blood stained axe from accused Ram Bihari on 05.02.2017 in his handwriting and signature but, as had been previously discussed in this judgment, Baijnath PW-4 and Shankar PW-5, the public witnesses of this recovery, had denied the recovery of such an axe in their presence from the accused. The blood stained axe was sent to the Forensic Science Laboratory, Agra whose report dated 28.01.2020 is available on record, according to which, blood found on the axe was disintegrated, as such, its origin could not be determined. Besides this, in the recovery memo Ex.Ka-3, the time of recovery of axe is not mentioned and further, it does not bear the signature of accused. In view of this, the recovery of axe from the possession of accused Ram Bihari, at the time of his arrest, is doubtful.

34. It is apparent from the above evidence, that none had seen the murder of Kashiram. Kashiram was neither last seen alive in the company of accused nor accused were seen fleeing from the spot of occurrence. The presence of accused on the spot of occurrence is not proved. The recovery of axe, allegedly used in the offence, effected from the accused Ram Bihari, is also highly suspicious because the public witnesses of recovery Baijnath PW-4 and Shankar PW-5 denied any such recovery. It is true, that the recovery memo of axe Ex.Ka-3 was prepared by Vinod Kumar Mishra PW-9, but since the recovery witnesses turned hostile, as such, the whole prosecution story of recovery of axe from the accused becomes incredible.

35. The Hon'ble Apex Court in the case of Sampat Kumar V. Inspector of Police, Krishnagiri (2012) 4 SCC 124 has held that in a case based on circumstantial evidence- strong motive by itself is not enough to support a conviction especially in a case where the sentence can be capital punishment. Motive alone in the absence of any other circumstantial evidence would not be sufficient to convict the accused. On the materials on record, there may be suspicion against the accused but as is often said that suspicion, howsoever strong, cannot take the place of proof.

36. It is true, that the informant PW-1 had proved the motive of the crime, but only on this basis, the accused cannot be convicted. This case is not based on eye-witness account, but is based on circumstantial evidence, in which the accused can only be convicted, if the chain of circumstances established against the accused is of a conclusive nature and is complete, so as to prove that only the accused could have committed the crime and other than the accused, none had the opportunity to commit this crime.

37. In this case, there is no eye-witness of the incident. The prosecution has been able to prove the motive of the crime, but besides motive, there is no evidence to link the accused with the crime. The alleged recovery of axe from accused Ram Bihari is wholly suspicious. No recovery of any incriminating object has been effected from accused Arun. Also, no recovery under Section 27 Indian Evidence Act has been effected at the instance of the accused, so as to link them with the alleged offence. In these circumstances, only one conclusion is reasonably possible that the prosecution failed to prove its case and in view of this, the trial court has committed grave illegality in convicting the accused under Section 302/34 IPC. The trial court has altogether recorded a perverse finding, which warrants interference from this appellate Court.

38. In view of the above conclusion, the appeal is allowed. The impugned judgment and order dated 20.01.2024 convicting the accused Ram Bihari and Arun in Session Trial No.98 of 2017 (State Vs. Ram Bihari & another), arising out of Case Crime No.63/2017 P.S Aata, District Jalaun under Section 302/34 IPC is hereby set aside. Both the accused-appellants are acquitted of the charge framed against them.

39. Both the appellants are in jail, who shall be released forthwith, if not wanted in any other case. Their bail-bonds are discharged.

40. Let the trial court record along with a copy of this order be transmitted to the court concerned through Registrar (Compliance) forthwith and a copy of this order may also be sent to the jail authorities for necessary compliance.

41. The trial court is directed to submit the compliance report, within a month.

Order Date :- 28.5.2025

Himanshu/Jitendra.

(Sandeep Jain, J.)

I agree.

(S.D. Singh, J.)