Allahabad High Court
Govind And Others vs State on 11 September, 2025
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 1739 of 1983
Govind And Others
..Petitioners(s)
Versus
State
..Respondents(s)
Counsel for Appellant(s)
:
Anup Kumar Upadhyay, Priyansh, Pt. Mohan Chand
Counsel for Respondent(s)
:
A.G.A.
Reserved on 05.04.2025
Court No. - 43
HON'BLE SIDDHARTHA VARMA, J.
HON'BLE RAM MANOHAR NARAYAN MISHRA, J.
(Per:- Honble Ram Manohar Narayan Mishra, J.)
1. Heard Sri Priyansh, learned Amicus Curiae for the appellant Karua and Sri Amit Sinha, learned A.G.A. for the State-respondent.
2. Instant Criminal Appeal has been preferred against judgment and order dated 26.07.1983 passed by Leaned Additional Session Judge Etah in S.T. 215 of 1982, arising out of Case Crime No.238 of 1980, under Sections 147,148, 302/149, 323/149 IPC, Police Station Sahawar, Kasganj, (then District Eath). Learned trial court, in said trial convicted the appellants Govind, Chhadami and Ram Dayal for charge under Section 148 IPC and sentenced them to two years rigorous imprisonment. Accused Om Prakash and Karua were convicted of charge under section 147 IPC and sentenced to one year rigorous imprisonment. All the accused namely Govind, Chhadami, Om Prakash, Karua and Ram Dayal were further held guilty for charge under Section 323/149 IPC and sentenced to one year rigorous imprisonment. All the accused persons were further held guilty of main charge under Section 302/149 IPC and sentenced to imprisonment for life. One accused Ran Singh had been acquitted of all charges for want of evidence.
3. It appears that during the pendency of present appeal, appellants Govind, Chhadami, Om Prakash and Ram Dayal died during the pendency of appeal and this appeal qua them was directed to be abated by order of this Court passed from time to time on order sheet and present appeal has been heard in respect of surviving appellant accused Karua only.
4. The factual matrix of the case as appearing from the material on record is that the informant Het Ram son of Chokhey Lodh lodged an FIR on the basis of written report at P.S. concerned on 02.12.1980 at 09:05 AM. with allegation that on that day, at around 06:30 AM the informant and his sons Budh Singh and Liladhar were on way to Nagariya Sugar Factory and sugarcane was loaded in the buffalo cart. His son Budh Singh was sitting on sugarcane and his other son Liladhar was driving the cart. The informant, the witnesses Basdev and Pusey were following the vehicle on foot. As soon as they reached near the Phooti Ghata Pulia, situated after some distance from Gangpur, his co-villagers Govind, Chhadami, Ram Dayal, Om Prakash and Karua emerged from western-side gunders (Shrubs) Ram Dayal, Govind and Chhadami were armed with country made pistols, Karua and Om Prakash were wielding lathis; Ram Dayal, Govind and Chhadami asked Liladhar to stop the vehicle and challenged him. Liladhar stopped the vehicle, Om Prakash assaulted Liladhar by lathi (club) and he fell down on the earth. Thereafter, Govind, Chhadami, Ram Dayal and Karua climbed the buffalo-cart and brought Budh Singh down. Govind, Chhadami and Ram Dayal opened fired at Budh Singh by their respective country made pistols. Accused Karua had assaulted Budh Singh by Lathi on climbing the buffalo cart. Budh Singh died on the spot having hit by fire arms. These people are assisted by Ran Singh Ahir, R/o Meerapurwa and Baboo Lodh R/o Chak, P.S. Kasganj.
5. The written report Ext. Ka-1 was scribed by one Natthu Ram, a co-villager. Constable Moharir Ramesh Singh had drawn chick FIR Ext. Ka-4 on the basis of said written report and registered a case against five named accused persons, while GD Entry No.16 time 09:05 hours dated 02.12.1980. The extracts of said GD Entry are proved on record as Ext. Ka-5. The inquest was conducted on dead body of the deceased Budh Singh on 02.12.1980 between 10:00 am to 11:30 am at the place of incident by S.I. Hori Lal in presence of Panch Witnesses. In inquest report Ext. Ka-6 nine injuries are described on the person of the deceased. The dead body was carried to District Headquarter for postmortem by Constable Suraj Singh and Virendra Singh alongwith eight number of papers including, photo nash, chalan nash, report of CMO. The postmortem examination on the person of the deceased was conducted by the Dr. N.K. Agarwal on 03.12.1980 at around 03:30 PM at Etah, in which as many as six injuries were detected on the person of the decreased, out of which three injuries, in the opinion of doctor were inflicted by fire arms and three injuries were lacerated wound caused by some hard and blunt object.
6. In the opinion of the author of postmortem report, the cause of death was due to shock and hemorrhage as a result of antemortem injuries No.5 and 6. The investigating officer recorded statements of the informant and other witnesses on commencement of investigation. The medico legal examination of injuries of the injured Liladhar was conducted by doctor S.D. Mishra (PW-3) on 02.12.1980 at around 04:05 PM, and wherein five injuries were detected on his person and one injury was shown as complaint of pain in upper part of head.
7. S.I. P.C.Chaturvedi (PW-6) recorded statement of the informant on the date of lodging of FIR and conducted spot inspection of the place where dead body was lying. He directed S.I. Hori Lal Verma to carryout inquest on the dead body which was conducted in his presence.
8. The Investigating Officer also prepared site plan of place of occurrence on pointing out of the informant. He collected blood stained and plain earth from the spot and prepared an inventory, and he also took into his possession two empty cartridges which he got sealed and prepared its inventory. He took into his possession the buffalo-cart loaded with sugar-cane which was lying on the spot and entrusted it to the custody of Basdev, the uncle of the deceased. The named accused persons, after the lodging FIR became non traceable, as they absconded to evade arrest. The Investigating Officer effected proceedings under Section 82/83 Cr.P.C. against accused persons after getting the process issued from the court. This fact emerged from statement of witnesses during investigation that a conspiracy was hatched between named accused persons and one Ran Singh, on the eve of the day of incident dated 01.12.1980 in the chaupal of accused Ram Dayal, Govind, Chhadami, Om Prakash and Karua were present and they made a plan to eliminate Budh Singh.
9. The Investigating Officer submitted chargesheet against five accused persons after concluding the investigation namely Govind, Chhadami, Ram Dayal, Karua and Ran Singh for said charges, showing them as absconded. Subsequently, the attendance of accused persons was procured and accused Om Prakash and Karua were enlarged on bail and subsequently other accused were also enlarged on bail during trial. The case was committed to the court of session by learned CJM. On 11.05.1982 learned trial court framed charges against accused Om Prakash, Karua under Section 147, 323/149, 302/149 IPC. Learned trial court framed charges under Section 148, 323/149, 302/149 IPC against accused Govind and Chhadami on 25.06.1982. The accused Ram Dayal was charged with Section 148, 323/149, 302/149 IPC on 01.02.1982 as he was subsequently summoned under Section 319 Cr.P.C.. His case was initially separated due to his absence and he was not committed to court of session alongwith co-accused. The accused persons were put on trial.
10. In prosecution evidence, PW-1 Hethram the informant, PW-2 Liladhar injured witness, PW-3 Dr. S.D. Misra, the author of injury report of Liladhar, PW-5 Dr. N.K. Agarwal author of postmortem report of deceased Budh Singh, PW-6 S.I., P.C. Chaturvedi, the Investigating Officer were examined in support of prosecution case.
11. So far as exhibits are concerned PW-1 Hethram, the author of written report proved as Ext. Ka-1. PW-3 Dr. S.D. Mishra, proved injury report of Liladhar as Ext. Ka-2, PW-5 Dr. N.K. Agarwal proved postmortem report as Ext. Ka-3, PW-6 S.I. P.C. Chaturvedi, the Investigating Officer proved Chick FIR authored by Constable Ramesh Chandra as Ka-4 and extracts of G.D. entries of registration of case as Ext. Ka-5, inquest report as Ext. Ka-6., Photonash, chalan nash and report RI as Ext. Ka-7 to 9, site plan as Ext. Ka-10. Recovery memo of blood stained and plain earth and cartridges as Ext. Ka-11, recovery memo and supurtiginama of Buffalo-cart Ext. Ka-12 and chargesheet as Ext. Ka-13. He also proved arrest warrant, process under Section 82 and 83 issued by the Court against accused persons who have absconded after the incident as Ext. Ka-14 to Ka-53.
11. Out of six witnesses examined by prosecution to prove its case PW-1 Hethram, PW-2 Liladhar are produced as eye witness and other witnesses are medical and formal witnesses.
12. The prosecution has examined six witnesses to prove its case. P.W.-1 Het Ram is the de facto complainant. He has stated that Liladhar is his son and Budh Singh deceased was also his son. Pusey was of his village who has now Ran away from the village due to fear of the accused. Accused Govind, and Chhadami are of his village and Om Prakash, Karua and Ram Dayal are intimate and friends of Govind and Chhadami. Babu is the brother-in-law of Govind and Chhadami. He, further, stated his son Budh Singh was a Pahalwan (wrestler) and a healthy strong man. The field of Govind and Chhadami is adjoining to the place where his (P.W.1)'s cattle would be tied, Govind and Chhadami claimed this place and asked PW-1 to remove his cattle from that place, but Het Ram and his sons insisted that it was their land. Govind and Chhadami could not occupy that piece of land due to Budh Singh. There was altercation earlier in this connection between his son Budh Singh and Govind and Chhadami. A day prior to the occurrence, Liladhar told him that accused Govind, Chhadami, Ram Dayal, Om Prakash, Karua, Ran Singh and Babu were conspiring in the Chaupal of Ram Dayal, to commit the murder of Budh Singh. He did not pay any heed to this things. On the day of occurrence, he was going to Nagariya mill with his sugar cane loaded in a bullock-cart. The cart was being driven by Liladhar and Budh Singh was sitting over the cane in the cart. He (PW-1) along with Basdev and Pusey were following the cart on the foot. When the cart reached at Phooti Ghata Ki Puliya at about 06:30 AM, accused Govind, Chhadami, Ram Dayal, Om Praskash and Karua came out from the Jhund of Goondar. Govind, Chhadami and Ram Dayal had Tamanchas, Karua and Om Prakash had lathies. Govind and Chhadami came ahead and asked Liladhar and Budh Singh to stop the cart. They abused and said "Aaj Nikal Paogey Tab Malum Paregi. "Liladhar stopped the bullock cart. Govind, Chhadami and Karua went over the cart. Karua gave lathi blow to Budh Singh and Om Prakash gave lathi blow to Liladhar. Budh Singh was dragged down from the cart and then Chhadami, Govind and Ram Dayal fired at him with intention to kill him. Budh Singh died on the spot. He, Basdev and Pusey raised alarm and the accused ran away. Subsequently, the persons of the neighbouring places came there. He got his report written by Natthu of Gangpur. It is Ext. Ka-1. It was read over to him and then he put his thumb-impression over it.
13. He took the report to the Police Station and handed over it there. In his cross-examination, he has stated that Karua and Om Prakash are residents of other villages. Ran Singh is also resident of Karuas village. Govind and Chhadami are residents of his village.
14. He does not know the number of plot where he ties his cattle. He never obtained any sale-deed of the said land in his favour. He added that Jamindar Nay Basaya Tha." He, further, stated Chakbandi Sey Pahiley Muljiman Govind, Chhadami Wa Karua, Govind Wa Chhadami Kay Hissey Mian Le Gaya Pani Us Kuan Rahat Sey Ab Bhi Hamarey Kheton Main Chalta Hai. He stated that Govind and Chhadami wanted to occupy forcibly the place where his cattle are tied down and he does not relish it. There used to be be altercation between his sons and accused Govind and Chhadami, but he never lodged my report. He had stated before the I.O. that a day prior to the occurrence, there was conspiracy at the Chaupal of Ram Dayal. He was confronted with his statement under Section 161 Cr.P.C. On this point where he has stated that "Merey Lerkey Liladhar Ney Hame Kal Bataya Tha Ki Yahe Sab Log Ram Dayal Ke Chabutree Par Baith Kar Salah Kar Rahey They Ki Budh Singh Ko Pahele Marado. "This statement has been recorded on 12.12.1980. On the day of occurrence, the Parchi of the Sugar Mill was with Liladhar. The said Parchi was not given and shown to the S.I. because the cart was loaded with sugar-cane. Budh Singh had taken some Nashta (breakfast) before starting for the mill. He had taken 1/2-1. Parantha about 10 minutes prior to the occurrence. Hundred-two hundred persons had assembled on the spot and Siya Ram, Chowkidar of Gangpur had also come there. He did not take the Chaukidar along with him for lodging the report. He had no talks with chaukidar and persons assembled on the spot. He had gone to the Police Station alone. He did not talk to Liladhar before going to the Police Station. When the cart was halted, Om Prakash gave lathi blow to Liladhar first and then the accused climbed on the cart. He stated Govind Aur Chhadami, Ram Dayal Ne Budh Singh Par Kharey Hokar Fire Kiye Thay Jo intino Ne Fire Kiye wah Tino kay Fire Budh Singh kay lagey. . It is wrong to suggest that he was not present on the spot. It is also wrong that this occurrence took place in the dark and the accused did not commit this murder. Where the cart halted Om Prakash gave lathi blow to Liladhar and then these accused went over the cart.
15. PW-2 Liladhar is son of the complainant, and brother of deceased. He was stated to be on the cart alongwith Budh Singh. He has stated that a day prior to the occurrence he was returning from the field. When he reached near the Chaupal of Ram Dayal accused, he saw Ram Dayal, Govind, Chhadami, Om Prakash and Karua sitting there. They were planning to kill Budh Singh. They were saying Budh Singh Ko Mar Do, Yahi Hi Tagra Padata Hai.. He stated Ran Singh Wa Babu Us Chaupal Par Us Samay Nahin Thay.
16. Regarding the incident on the date of occurrence, he stated that he was driving the bullock-cart loaded with sugar-cane. Budh Singh was sitting over it. Het Ram, Basdev and Pusey Ram were following the bullock-cart on foot. It was about 06:30 am, when the cart reached near the pullia of Phooti Ghata, accused Om Prakash, Karua, Govind, Chhadami, and Ram Dayal came from the western Goonder. They asked him to stop the cart and said Aaj Malum Parh Jayega Ki Aaj Nikal Paogey. He stopped the cart. Govind, Chhadami and Karua climbed over the bullock-cart. Om Prakash gave him a lathi blow and he fell down. Karua gave two -three lathi blows to Budh Singh and brought him down and then Govind, Chhadami and Ram Dayal fired at Budh Singh who died on the spot. All the accused ran away. In his cross examination he stated that he had not become unconscious after receiving the injuries. He stated that Khara Ho Gaya Tha. Kharey Honey Ke Bad Phir Ek Aur Lathi, Om Prakash Nay Mari Thi. The three accused fired at Budh Singh and the shots of all the three persons hit him. He had stated before the I.O. that he fell down first after receiving the lathi blow. He had also stated that Karua had given 2-3 lathi blows to Budh Singh. He cannot tell the reason as to why the Investigating Officer has not written these things in his statement. 100-200 persons had reached there hearing the alarm. The S.I. came on the spot at about 12:00 at noon. He remained there till the arrival of the S.I.. He did not talk to the persons assembled there about the occurrence. His clothes were blood stained. The S.I. had told him that he may wash his clothes. The blood had fallen on the spot at two places. He had the Parchi of Sugar-cane in his possession. He has shown it to the S.I. who had returned it. The dead-body was taken from that place at about 01:00 PM and the S.I. had also gone in Jeep. When he reached with the dead body at the Police Station Etah, the S.I. had already reached there. His father had not stayed near the sugar-cane, but had gone with the dead-body. The S.I. had given Parchi for hospital on the spot. The S.I. recorded his statement after her returned from the Hospital. It is wrong to state that he was not driving the bullock-cart on the spot. It is wrong that the occurrence did not take place in the manner stated by him. He had stated about the conspiracy for murder having been made a day prior to the occurrence. Nobody else except him saw and heard the accused hatching this conspiracy. He had narrated about this conspiracy to his father after the occurrence.
17. PW-3 is Dr. S.D. Mishra. He testified that on 02.12.1980 he was medical officer Sahawar. On that day at 4-5 PM, he examined the injuries of Liladhar son of Heth Ram and noted the following injuries in the injury report:-
1. Contusion 9 cm. x 3 cm. obliquely on the back of left side of chest caused by blunt weapon.
2. Contusion 3 cm. x 2 cm. on back of right side of chest caused by blunt weapon.
3. Contusion 8 cm. x 3 cm. at the vertibral column caused by blunt weapon.
4. Contusion 6 cm. x 11 cm. At top of right shoulder caused by blunt weapon.
5. Contused traumatic swelling 10 cm. X 3 cm. at the front and middle on the left thigh caused by blunt weapon, and
6. complaint of pain in the upper part of the head.
18. All the injuries were simple and could be caused by some blunt weapon, like lathi- danda. They were about day old and could possibly be caused on 02.12.1980 at 06:30 AM. He has proved the injury report as Ext. Ka-2. In his cross-examination, he has stated that these injuries cannot be self-inflicted. But, if a person has endurance to bear such pain then these injuries can be manufactured. It is wrong to suggest that he has wrongly noted down these injuries under the pressure of the police. He has stated In Choton Main Se Kabhi Kabhi Khoon Nahi Nikalta, Lalima 24 Ghante tak Rahetee Hai, uskey Bad Lalima Ka Rang Badalna Shuru Ho Jata Hai.
19. PW-4 in Constable G.P. Virendra Singh. He has given his statement on affidavit. He is a formal witness on 02.12.1980, he was posted at Shahawar and on that date at about 11:30 pm. Sri Hori Lal Verma S.I. handed over the sealed dead-body of Budh Singh to him for postmortem alongwith all connected papers including Panchayat nama etc. He, alongwith the other constable Surat Singh brought the sealed dead-body to Etah and on 03.12.1980 presented it before the doctor alongwith the connected papers. The sealed dead-body remained intact till it was in his possession.
20. P.W.-5 I Dr. N.K. Agarwal on 03.12.1980 he was Medical Officer District Jail, Etah on that date, he conducted the postmortem of the dead-body of Budh Singh. He found following ante-mortem injuries on the dead body :-
1. Lacerated would 3 cm x 1 cam x scalp deep or on middle of head 15 cm over bridge of nose.
2. Lacerated wound 12 cm x 0.5 cm on middle of fore-head 7 cam above middle of nose.
3. Lacerated would 1 cm x 0.5 cm x muscle deep on front and middle of chin.
4. Multiple fire-arm wounds of entry in an area 4 cm x 4 cm each, cm x cm x muscle deep on left side front of chest just below mid of left clavicle.
5. Fire arm would of entry 1.5 cm x 1.5. cm x through on left side front of chest 6 cm away and below left nipple in the position of 7 Oclock. No blackening, direction transversely right to left.
6. Fire Arm wound of exit, 15 cm x 5 cm on left side of chest 8 cm below left nipple at 4 Oclock position.
21. He also conducted the internal examination of the dead-body and the result in detail is mentioned in his post-mortem Ext. Ka-3. In his opinion the cause of death was due to shock and haemorrhage as a result of ante-mortem injuries Nos. 5 and 6. Haematoma was present under injury No.1 and 2. The death had taken place about 1-1/4 day back. The ante-mortem injuries could be inflicted on 02.12.1980 at about 6:30 am. These injuries were sufficient to cause death in ordinary course. In his cross-examination he has stated that the fire arm injuries could be possible by three shots. The injuries of blunt object could be caused by three blows. The stomach was empty, which demonstrates that the deceased had taken food 5-6 hours prior to his death. 15 pellets were recovered from wall under injury No.4 and 14 pellets recovered from pleural cavity. He has stated that left Vth rib was fractured anteriorly.
22. PW-6 is S.O. P.C. Chaturvedi the Investigating Officer. In December, 1980, he was posted as S.O.. Sahawar, District Etah. He has stated that on 02.12.1980 this case was registered in his presence at his police station at 09:05 am. Het Ram had brought his written report Ext. Ka-1 and on its basis constable Ramesh Chandra prepared the chick FIR which he has also signed. It is Ext. Ka-4. The same constable clerk made its entry on GD Report No.16 of the same date and its true copy is Ext. Ka-5.
23. He investigated this case. He recorded the statement of Het Ram at the police station, the same day. He reached the spot. The same day he recorded the statements of Basdev and Pusey etc. S.I. Horilal Verma prepared the panchayat nama of the dead-body, challan-lash and report for post-mortem etc. under his direction in his presence. They are Exts. Ka-6 to Ka-9. Panchayat nama has been signed by him also. The dead-body was sealed and handed over to constable Surat Singh and Virendra Singh alongwith necessary papers for taking it to Eath for post-mortem. On the pointing out of the complainant he prepared site-plan which is Ext. Ka-10. Place marked as A is the place where blood was found and at place B he found two Khokha cartridges. He took the blood stained and plain earth in possession and sealed them separately. He sealed the two Khokha cartridges also and prepared their recovery memos. It is Ext. Ka-11 one bullock-cart loaded with sugar-cane was standing at place B marked in the site-plan. He took it in possession and gave it in the supurdgi of Basdeo and prepared the Supurdgi- nama Ext. Ka-12. Exts.1 to 4 are the blood stained and plain earth ad Khokha of the cartridges. He searched the accused persons, but they could not be apprehended. On 28.02.1981 after completing the investigation, he submitted charge-sheet Ext. Ka-13. Before submitting the charge-sheet, he obtained warrant and process under Sections 82 and 83 Cr.P.C. against the accused. They are Exts. Ka-14 to Ka-19. On the back of these warrants, there are the reports of S.I. Virendra Singh. The reports are Exts. Ka-20 to Ka-25. Proclamations issued are Exts. 26 to Ka-31. Seven reports of their back are Exts.32 to Ka-37. Exts Ka-38 to Ka-43 are the orders for attachments and Exts Ka-44 to Ka-49 are the reports behind them. Fard attachments of the accused are Exts. Ka-50 to Ka-53. All these attachments were made by S.I. Sri Lokendra Pal Singh. Their rep;orts are also written by him. He is familiar with his handwriting. In his cross-examination he has stated that after registration of the case at about 12 in the noon till 12 Oclock in the night one report of Gamblint Act case was entered at 07:40 pm, then he said that case property under Section 13 Gambling Act was deposited and at that time report of gambling was not entered. He had sent Liladhar for medical examination from the place of occurrence.
24. His Rawangi from the police station is entered on 03.12.1980 at 06:10 am. Till his Rawangi, no report of any cognizable offence was lodged. The special report of this case was sent through Special Messenger. He had reached the spot in Jeep. He has not written about the injuries of Liladhar in G.D. at it is not necessary. He has not noted down the time of recording the statement of complainant in the case diary. His statement was recorded at the police station when he had come to lodge the report, hence the time has not been written. In the case diary, he has not written the time of going for investigation. Similarly the time for reaching on the spot is also not written. The time is written in the Panchayatnama. The time is given of beginning of writing of panchayat-nama. During the investigation he did not record the statement of Chaukidar of village Gangpur. He did not record the statement of the constable who took the dead-body for post-mortem. He did not deem it necessary to send the blood stained earth for examination to Chemical Examiner. The blood was found at one place. He did not take the chothes of Liladhar in his possession. He stated Lash Kay Uttar Purab Ko Karib Aath Kadam Par Khokhey Parey They. He has stated that he does not show this place specifically in the site-plan Ext. Ka-10. In his site-plan, he has not shown the witnesses being present behind the bullock-cart. He has also not shown the place where Liladhar was beaten. He has not written in the case diary that Liladhar had the Parchi of sugar-cane. He had no knowledge that Liladhar had it. He had seen the place regarding which there was dispute between the accused and the complainant, but he did not prepare its site-plan. It is wrong to suggest that there report was lodged anti-time and under his evidence. It is also wrong that Liladhar had no injuries and he got them written by the doctor. P.W. Hetram has not stated before him that the remaining accused are friends of Govind and Chhadami. Het Ram had stated before him that Merey Larkey Liladhar Nay Mujhey Kal Bataya Tha Ki Inhi Sab Log Ram Dayal Kay Chabutra Par Salah Kar Rahey They. Liladhar had not stated before him Karua Ney Budh Singh Ko 2-3 Lathi Mari. He had stated that Lathi Meri Thi. Liladhar had stated that Om Prakash Merey Upar Lathi Chori Thi. He had not stated that he fell down. It is wrong to suggest that he has written fictitious things in the case diary.
25. In their statement under Section 313 Cr.P.C. accused denied the prosecution allegation and the evidence adduced against them. They stated that they have been falsely implicated in the case due to enmity. The other accused have denied to be intimate with Govind and Chhadami. Govind and Chhadami have admitted that they are real brothers and Babu is their brother-in-law (Bahanoi). Rest they have denied. The accused have not produced any oral defence. They have filed the following documents:-
i. Khatauni extract of village Lakhimpur Gopal Singh, Tehsil Kasganj, Etah of 1383 Fasli to show the mutation order dated 17.02.1977.
ii. Photostat copy of sale-deed dated 30.04.1983 executed by Ant Ram in favour of Ram Dayal and Roshan Lal son of Gopisingh and Maya Devi wife of Ram Dayal.
26. Learned counsel for the surviving appellant Karua submitted that there is no allegation against accused appellant regarding causing of any form injury to the injured Liladhar. The witnesses have stated that appellant Karua was armed with Lathi and he gave lathi blow to deceased. However, the evidence with regard to causing of lathi blow to the deceased by the appellant Karua is not flawless. There is difference in the statement of witnesses of PW-1 and PW-2 with regard to manner and mode of commission of crime and there is no consistency in their statement with regard to sequence of events which led to death of the deceased. PW-1 informant Hetram has stated that he was told by his son Liladhar that prior to date of the incident the accused persons had assembled in the Chaupal of Ram Dayal heard that they were planning the murder of Budh Singh, but this fact is not stated in FIR. Thus, the story of hatching of conspiracy of murder amongst accused persons, one day prior to the incident has been developed only to give a colour to prosecution version, and it does not inspire confidence. Had there been any conspiracy prior to commission of murder amongst accused persons as stated by PW1- and PW-2, they would have been alarmed and must have taken some steps to secure the life of the deceased from any murderous assault. PW-1 and PW-2 have no where stated in their statement under Section 161 Cr.P.C. that Karua had caused three lathi blows on the deceased, but PW-2 has stated in his evidence before the court that he had seen that Karua had caused three lathi blows, while he was sitting on sugar-cane buffalo-cart. This statement has been developed only to correspond this with postmortem report of the deceased, in which three lacerated wounds have been recorded on his person.
27. In postmortem report, cause of death has been shown as ante-mortem firearm injuries. PW-1 Hetram has also developed his version from FIR and statement under Section 161 Cr.P.C. during trial where he has stated that Karua had dragged the deceased from Bullalo-cart and brought him down.
28. PW-1 has stated in his examination in chief that Karua had given lathi blow to the deceased while riding the Buffalo-cart, but this statement is product of a leading question posed by prosecution counsel, in reply to that question whether any one had given lathi blow to Budh Singh. He next submitted that the injuries of Liladhar are of simple in nature and can be manufactured or manipulated to falsely implicated the accused/appellant for a serious charge like murder.
29. PW-1 has stated in his evidence that Karua and Om Prakash are resident of other village and accused Ran Singh (since acquitted by trial court) is also a resident of the village of Karua. He has clarified that Govind, Chhadami and Ram Dayal are his co-villagers. Karua and Ran Singh are Yadav by caste. PW-1 has stated in his cross-examination that he had scribed this fact that as soon as the cart stopped, three persons climbed thereon and assaulted Liladhar. He had not given such statement to Darogaji. In fact PW-1 was not present on the spot, there are several contradictions in the statement of PW-1 from his previous statement recorded under Section 161 Cr.P.C. and that contained in written statement Ext. Ka-1, which form basis of FIR. He has also held in cross-examination that three accused persons had fired one shot each at the deceased to make his statement correspond with fire arm injuries shown in postmortem report.
30. Appellant Karua has not been assigned any motive to commit the offence or to share common object of committing murder of the deceased. He had nothing to do with the deceased or injured Liladhar (PW-2).
31. He next submitted there there is inconsistency in sequence of events narrated by PW-1 and PW-2 interse which creates a doubt in truthfulness of prosecution version. It is quite unnatural that Liladhar had over heard the conversation of accused Ram Dayal, Chhadami, Govind as well as Om Prakash who were engaged in consultation of committing murder of Budh Singh at the Chaupal of accused Ram Dayal, as deceased was physically strong.
32. PW-1 has stated that deceased was a wrestler, accused persons used to object regarding tethering of cattle by the witness as said land was adjacent to the agricultural plot of Govind and Chhadami. Due to physical strength of deceased Budh Singh they could not succeed to grab the portion of the land of the witness.
33. This is also not natural that the accused persons out of whom three persons were armed with firearms had spared PW-1 the father of the deceased without causing even slight injury to them and only one accused Om Prakash has caused slight injuries on his son Liladhar by lathi blow.
34. He also stated that one accused Ran Singh who was charged under Section 120B IPC has been acquitted by learned trial court on two counts firstly an accused cannot be charged under Section 120B IPC all alone, for an offence under Section 120-B IPC the charge has to be framed against all the accused persons who are alleged to have been involved in hatching conspiracy and secondly, there was no evidence on record to prove the charge of criminal conspiracy against him. Even Liladhar who is sole witness of conspiracy has categorically stated that Ran Singh and Babu were not present in the Chaupal of Ram Dayal, where other accused persons were hatching conspiracy.
35. He lastly submitted that there is medical inconsistency in the case. According to eye-witness accounts three accused persons Govind, Chhadami and Ram Dayal allegedly fired at Budh Singh and according to witnesses their shot hit him, but in medical evidence the doctor PW-5 found one wound of exit which is injury No.6 and other injuries such as injury Nos.4 and 5 which are firearm injuries of entry. The doctor has opined that these three injuries could be result of only two shots. Learned counsel also drew attention of the Court towards postmortem examination of the deceased, in which it is stated that on internal examination stomach was found empty, small intestine was half full, large intestine was also half full. This state of contents of stomach and intestine of the evidence makes it evident that deceased had not taken any foodstuff prior to the incident, inasmuch as he had not eased himself prior to death on that day. Whereas PW-1 has stated that the deceased has taken one or half paratha before leaving the home for sugarcane factory. He has stated that Budh Singh had taken some break-fast before departure, thus the eye-witness account is not consistent with Medical evidence on this score also, as it is well settled that stomach gets empty after 5-6 hours of taking meal. This supports defence version that the deceased was killed on the way by some unknown miscreants in the darkness of late night and not in the light of morning as stated by witnesses. Learned counsel also submits that in fact, none of the witnesses had seen the occurrence of killing of the deceased, otherwise their evidence would be consistent with medical evidence.
36. With above submissions, learned counsel for the appellant prayed for acquittal of surviving appellant Karua and submitted that the prosecution has failed to prove its case beyond reasonable doubt.
37. Per contra, learned A.G.A. submitted that the contention raised by learned counsel for the appellant are by and enlarge taken by defence before trial court also, but same has been duly addressed by the learned trial court while recording conviction of the accused persons including surviving appellant Karua for charge under Sections 147,148, 323/149 and 302/149 IPC and proper sentence has been passed against accused appellants after proof of charges. The case is based on eye-witness account of PW-1 and PW-2, which is duly corroborated by medical evidence. There is no occasion to disbelieve evidence of injured witnesses PW-2 Liladhar who is brother of the deceased and his presence on the spot was quite natural, as father and two sons were off to Nagariya sugar-mill for crushing the sugar-cane loaded on a buffalo-cart. PW-2 Liladhar was driving the buffalo-cart and deceased was sitting on sugar-cane, their father PW-1 Hetram was following the buffalo-cart on foot from behind alongwith his brother Basdev and witness Puse. PW-1 and PW-2 both have testified that parchi (slip) of sugarcane was with PW-2 Liladhar and same could not be given to S.O. as it was required to be produced at factory gate for cane crushing.
38. There is no medical inconsistency between eye-witness account of witnesses and injuries shown in postmortem report of the deceased. The contents of stomach are not decisive to ascertain time of death.
39. Learned A.G.A. lastly submitted that the impugned judgment is based on due appreciation of evidence and application of law. The impugned judgment and order requires no interference in the present appeal.
40. We have gone through the entire record and re-appreciated the evidence on record in the light of submissions made by learned counsels for the parties in instant appeal and also passed the impugned judgment under challenge.
41. According to testimony of PW-1 and PW-2 PW-1 was accompanied by his brother Basdev and Pusey at the time of incident, as they were walking behind Buffalo-cart, on which deceased were sitting. Pusey had filed an application alongwith affidavit on 03.11.1982 before the trial court wherein he has stated that it is wrong to say that he had witnessed the incident. He came to the spot on hearing the news of killing of Budh Singh alongwith his father Het Ram and Basdev and other persons, he found Liladhar in injured condition on the spot and Budh Singh was lying dead.
42. With above affidavit statement, he has expressed his disinclination to testify as a witness in the case, whereas according to prosecution version he escaped due to fear of accused persons to avoid to appear as a witness in the case. Basdev and Pusey are named witnesses of chargesheet. Surviving accused Karua has stated his age as 25 years at the time of his statement under Section 313 Cr.P.C. in the year 1983 which depicts that at present he would be of 68 years of age. The other witness Basdev has also not been examined by prosecution for reason that he also belonged to the family of the deceased.
43. In the instant case some strong indicators in favour of prosecution version, the incident allegedly occurred on 02.12.1980 at around 06:30 am. The distance of police station from place of occurrence is shown as 5 mile (around 7 Kms). The son of the informant was killed in the incident on the spot, even then, FIR was lodged at 09:05 am at police station concerned. The informant has stated that he went to police station on foot, just after the incident, leaving the dead body of the deceased in the presence of his other son Liladhar (PW-2) who also received injuries in the incident, which was caused by one of the accused namely Om Prakash by lathi. Thus FIR in the present case, on its face, value appears to be lodged promptly. There is eyewitness account of two witnesses of fact, who are father and real brother of the deceased, and one of the witnesses himself injured. The testimony of injured is placed on high pedestal. The mode and manner of the incident has also been described in the FIR, and motive of commission of crime is also introduced which has been reiterated in the statement of the witnesses recorded by Investigating Officer under Section 161 Cr.P.C. as well as in their sworn testimony before the court. However, on a meticulous examination of the evidence of said eye-witnesses, PW-1 Hetram and PW-2 Liladhar some anomalous situation surfaces which finds no plausible explanation in their evidence. There are also flaws in investigation, seven accused persons are named in written report Ext. Ka-1, however, the FIR was lodged against five named accused persons and two named accused Run Singh and Baboo were left in the FIR. His name was included during investigation, the trial court has rightly acquitted Run Singh on the ground that there is no evidence to connect him for charge of criminal conspiracy under Section 120(B) IPC in hatching conspiracy to commit murder of the deceased Budh Singh alongwith other accused persons.
44. In the said statement at the end of written report Ext. Ka-1 the assailants are assisted by Ran Singh Ahir, R/o Mirapurwa and Baboo Lodh, R/o Chak Thanaganj., there is no material to connect them with the offence in question. In fact, the Investigating Officer filed chargesheet against Run Singh without any supportive material collected against him during investigation. The other accused Baboo Lodh in written report who is said to be brother-in-law of main accused Govind and Chhadami was not chargesheeted and did not face trial.
45. In prosecution evidence, this fact surfaced that the place of incident is 1 km away from the village of the informant and deceased. According to FIR version and testimony of PW-1 and PW-2 the five named accused persons namely Govind, Chhadami, Ram Dayal, Om Prakash and Karua emerged from western side gunders (Shrubs), when the deceased Budh Singh was going to unload sugarcane at Nagariya Sugar Mill; the sugarcane was loaded on a Buffalo cart, which was driven by PW-2 Liladhar who is real brother, his father Hetram (PW-1) accompanied by his brother Basdev and relative Pusey was following them. The incident occurred within limit of village Gangpur, H/o of kunwarpur near phooti ghata culvert. The accused Govind, Chhadami and Ram Dayal are co-villagers of the deceased and witnesses. The accused Om Prakash and Karua are resident of some other village. The motive has been imputed against accused Govind and Chhadami who are real brothers. Other accused persons are stated to be intimated to Govind and Chhadami. The motive of commission of offence is shown as some land dispute between the deceased and witnesses. On one hand, accused Govind and Chhadami and on the other hand regarding tethering of cattle by informant side on said land. The main dispute was between the deceased and two accused persons, as deceased was a wrestler and physically strong. The accused persons could not succeed to dispossess him from piece of of land. No enmity had been suggested by prosecution with the deceased and witnesses.
46. Accused Ram Dayal stated in his statement under Section 313 Cr.P.C. that he had purchased a land in Nagla Hamirpur, due to which witnesses got enraged, he has been falsely implicated due to enmity. Accused Karua has stated that there was no enmity between him and deceased side, there might be some enmity, but he is not aware of that. Accused Om Prakash has stated that he has been falsely implicated due to village party bandi and enmity. Accused Govind and Chhadami have also pleaded any specific enmity with the informant side and has given a general statement that this case was instituted against them, due to enmity.
47. There is some contradiction in sequence of events mentioned by the informant in FIR and his sworn testimony before the court as PW-1. In FIR he has stated that as soon as the accused persons came across the buffalo cart driven by Liladhar, on which deceased was sitting. Then Govind and Chhadami challenged Budh Singh and asked Liladhar to stop the cart, as soon as the cart stopped, Govind, Chhadami and Karua climbed over it. Liladhar tried to stop them, and in the meanwhile Om Prakash started assaulting Liladhar by Lathi and Karua had also attacked Budh Singh by lathi. Thereafter, all the five accused persons had brought down the deceased from the card and made him stand. The accused Govind, Chhadami and Ram Dayal had fired shots at the deceased by the respective country made pistol, which hit him and he fell down and died instantly.
48. According to informant, he went to police station from the place of incident to lodge the FIR which is scribed by one Nathuram, R/o of Gangpur, the scribed of written report Ext. Ka.-1 was not produced in evidence. However, the informant has acknowledged the contents of written report and his thumb impression affixed thereon.
49. PW-1 Hetram has not stated about the role played in the offence by Karua on first hand and when he was asked by prosecution counsel, as to who had given a lathi blow to Budh Singh, he replied that Karua had given lathi blow to Budh Singh on climbing the cart. Thus this statement is product of a leading question. In FIR, PW-1 has stated that three persons Govind, Chhadami and Karua got on the Buffalo cart, but in his examination in chief before the Court he stated that four persons namely Govind, Chhadami, Ram Dayal and Karua got on the vehicle. The conspiracy introduced during investigation does not inspire confidence. In FIR, there is no such statement that witness Liladhar had stated to the informant that on the eve of the fateful incident when he was passing through the Chaupal of accused Ram Dayal on pathway, he heard the conversation of Ram Dayal, Govind, Chhadami, Karua, Ran Singh and Baboo were engaged in consultation, that if Budh Singh happens to move alone he should be killed, because he is physically strong in his family. If this is so, and Liladhar had ever heard the consultation amongst accused persons it is quite natural that he would have become alarmed and discussed this matter while returning at home with his brother Budh Singh (deceased) and father, but he kept mum all alone and surprisingly disclosed this fact after death of his brother. This fact does not find mention in FIR. In contradiction to statement of PW-2 on this score, PW-1 stated the Liladhar had told him about the consultation amongst accused persons at the Chaupal of Ram Dayal one day prior to the incident.
40. PW-1 has stated in his evidence that Liladhar had told him that all the named accused persons Govind, Chhadami, Ram Dayal, Om Prakash, Karua, Ran Singh and Baboo were assembled at the Chaupal of Ram Dayal and in consultation to eliminate Budh Singh, if he happened to meet them alone.
41. PW-2 Liladhar who is alleged witness of this consultation has stated in his statement that he ever heard consultation amongst Govind, Chhadami, Ram Dayal, Om Prakash and Karua at the Chaupal of Ram Dayal at around 04:00 pm on one day prior to the incident. He categorically stated that Ran Singh and Baboo were not present in the chaupal. Thus, it appears that this conspiracy aspect has been introduced to fortify prosecution version.
42. PW-1 has submitted in his statement that prior to consultation there was a Rahat and Well in joint possession of the witness and accused Govind and Chhadami. After consultation that Rahat and Well came into share of Govind and Chhadami, he had not taken any compensation for that. He had denied the defence suggestion that Govind and Chhadami had stopped supply of water to their field. He admitted that he still irrigates his field from the water of Rahat and Well. Thus apart from that a piece of land, regarding which some dispute is lying between the parties regarding tethering of Baboo by witnesses. There is not other motive that has been proved against accused persons. However, we cannot over look the legal position that in a case based on direct evidence the motive loses much of its significants. PW-1 has stated in his evidence that he accompanied with his brother Basdev and Pusey was following the buffalo cart, on which deceased Budh Singh and his other son Liladhar were present. Out of these two witnesses Pusey has filed an affidavit before trial court that he was not present on the spot and he had not seen the incident and came to the place of incident after being apprised of it alongwith Hetram (PW-1), Pusey and other persons of the village. The buffalo cart was driven by PW-2 Liladhar and deceased was sitting over sugarcane loaded on it. It does not appeal to reason that what was occasion for PW-1 to follow the cart from village to sugarcane factory on foot and that too being accompanied by his brother and co-villager Pusey. Even, Basdev the real brother of PW-1 was not produced as a witness during the evidence.
43. The injuries of PW-2 Liladhar are proved by Dr. S.D. Mishra (PW-3) who stated that he conducted medico legal examination of the injured Liladhar on 02.12.1980 at 04:05 PM and six injuries were found on his person, out of which five injuries were visible and one is complaint of pain on upper portion of head. The injuries were detected on left side of back, right side of back, right shoulder joint, left thigh. All the five visible injuries are in the nature of contusion. In the opinion of doctor the injuries were of simple nature and might have been caused by some blunt object lathi and danda. These injuries could not be manufactured, but if a person has endurance to bear such pain, then only can the same may be manufactured.
44. Be that it may, one thing is clear that the injuries found on person of injured Liladhar is not on vital part, are of simple nature and were not of substantial nature. There is difference of ten hours between infliction of alleged injuries and medico legal examination. Therefore, on the basis of this injury report, the prosecution evidence may not be taken on its face value. Both the witnesses of facts have stated in their sworn testimony that all three accused persons namely Govind, Chhadami, Ram Dayal and Karua are armed with country made pistols had fired one shot each at the deceased, when he was brought down from the cart by them and the shots fired by them hit him. In another words, according to witnesses of facts, the deceased suffered three fire arm shots, but in postmortem report of the deceased, two wounds of entry and one wound of exit was detected on the person of a deceased, as an ante-mortem injury.
45. PW-5 Dr. M.K. Agarwal who is author of the postmortem report has stated in his cross-examination that cause of death was antemortem fire arm injuries, which was sufficient to cause death. 14 pellets were present in cavity of lungs, left lung was lacerated, total 29 numbers of pellets were retrieved from the dead body, which was sealed and sent to S.P. Etah. Cause of death was shock and hemorrhage. The deceased might have received three blows of blunt object and two fire arm shots. Thus, on the point of number of shots fired at the deceased there is inconsistency between ocular account of the incident and medical evidence. This fact is also relevant that PW-5 has stated in his evidence that stomach of the deceased was empty at the time of postmortem, which indicates that he would have taken meal 5-6 hours before his death. In postmortem examination, both the intestines were found half full and half empty.
46. According to prosecution version, the incident occurred at around 06:30 AM at a place when the deceased and witnesses were on way to sugar factory from their native village. The place of the incident is said to be 1 km far from the resident of the deceased. This implies that the deceased would have started for sugar factory for crushing of sugarcane loaded on Buffalo cart at around 06:00 am. The incident occurred in the month of December, 1983, which is a season of winter.
47. The stomach of the deceased was empty in postmortem report, even if the contention of learned A.G.A. is accepted that it is not necessary that the bowel of a person gets clear in the morning when he goes to ease himself, for many reasons like constipation or deceased would have thought to get himself eased on the way to sugar factory, yet the factum of emptiness of stomach is inconsistent with the testimony of PW-1, wherein he has stated in cross-examination that the deceased had taken some breakfast, just before leaving the home on fateful day. He could have taken one or half paratha as a meal, if this statement of PW-1 is accepted, then there is no reason as to how the stomach of the deceased was found empty in postmortem report, where there is some what a difference of around half hours, for taking of said breakfast and homicidal death of the deceased caused by assassins. In medico legal jurisprudence, this is settled position that it takes 4-6 hours to complete the process of digestion of food, and thereafter the meal be send to intestines. This medical inconsistency fortifies the defence version that in fact the deceased was killed by some assailants in the darkness of wee hours on fateful day and not at the time as propounded by prosecution in FIR version and in its evidence.
48. The above medical inconsistency between ocular testimony and medical evidence creates a cloud on testimony of prosecution witnesses and also creates a strong doubt about the fact that whether they had actually seen the incident of killing of the deceased.
49. In this connection a recent judgment of Honble Supreme Court in Moti Vs. State of U.P. AIR, 2003 SC (1897) is relevant, wherein it has been observed as under:-
14. It is rather surprising that the High Court should find this part of the medical evidence as being of no consequence at all. The High Court referring to this part of the medical evidence has observed : "In our opinion the stomach contents are not very material to determine the time of incident." We are of the considered opinion this view of the High Court is wholly erroneous. It may be possible to contend that contents of the stomach may not always be an indicator of the time of death. But in a case where stomach is empty and the prosecution evidence is that the murder had taken place shortly after the deceased had his last meal, to say that the contents of the stomach have no material hearing on the determination of the time, in our opinion, is not acceptable. In the instant case, time of death being a material factor to verify the presence of the eye-witnesses it was obligatory for the prosecution to have clarified the discrepancy between the medical evidence and the oral evidence. The prosecution having failed to do so, in our opinion, a serious doubt as to the time of incident and the presence of the eye-witnesses at the time of incident and their narration of the incident also becomes doubtful.
15. Incidentally, we may also notice that even according to the prosecution, appellant Moti had no motive to commit the crime in question. The incident as narrated by the eye-witnesses having taken place in a place where there was no proper light to identify the actual accused who dealt the fatal blow also contributes to the factum of doubt in the prosecution case. Therefore, in our opinion, the prosecution has failed to establish its case against the appellant Moti.
50. The investigation is also faulty in the case. The Investigating Officer has admitted that he has not shown the place in site plan from where the witnesses had seen the occurrence. He has also not indicated the track of the route of arrival of accused persons. However, he has shown the plants of goothers from which the accused persons allegedly emerged. The blood stained earth, plain earth and two empty cartridge shells recovered from the place of incident, were not sent to chemical /material examination to Forensic Science Laboratory. The witnesses have improved their version in their sworn testimony before the court from the earlier statement recorded under section 161 Cr.P.C. on many aspects, which is apparent from the testimony of prosecution witnesses and that of investigating officer of the case.
51. All the appellants, except appellant No.4 Karua have already died during the pendency of present appeal. Inasmuch as appellant Karua is said to have inflicted three lathi blow to the deceased, resulting in three lacerated wounds on his persons which appear to be simple in nature. On perusal of the postmortem report and the opinion of doctor who is author of postmortem report, the cause of death was shock and hemorrhage caused by fire arm injuries i.e. injury No.5 and 6. Thus, appellant Karua cannot be said to have contributed the resultant death of the deceased Budh Singh.
52. In view of foregoing discussion based on re-appreciation of evidence on record, we are of the considered opinion that learned trial court fell into error for recording conviction of the accused persons for said charges. Prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt. Consequently, the conviction and sentence passed by learned trial court against the accused Karua for charge under Section 147, 302/149 IPC fails and is liable to be set-aside.
53. The conviction and sentence awarded by trial court to the surviving appellant Karua is set-aside. He is acquitted of said charges under Section 147, 302/149 IPC, he has been enlarged on bail by order of this Court during the pendency of the appeal. He need not surrender. He is directed to furnish two sureties and a personal bond to the satisfaction of the trial court in compliance of Section 437-A Cr.P.C. within fifteen days from today. The Criminal Appeal is accordingly allowed.
54. Let a copy of this judgment trial together with the trial court record be forwarded to learned trial court for compliance.
55. Before parting with the case, we deeply appreciate the valuable assistance rendered by Sri Priyansh, Advocate, learned Amicus Curiae who argued the case on behalf of surviving appellant Karua. He will receive Rs.25,000/- as honorarium from High Court, Legal Aid Committee.
September 11, 2025
Ashish/-
