Allahabad High Court
Rama And Others vs State Of U.P. on 16 September, 2025
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:164932-DB
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 2942 of 1984
Rama And Others
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Rakesh Kumar Singh, Ram Naresh Singh Gautam, S.K.Srivastava, Shiv Naresh Singh
Counsel for Respondent(s)
:
A.G.A.
Court No. - 44
HON'BLE SAUMITRA DAYAL SINGH, J.
HON'BLE TEJ PRATAP TIWARI, J.
1. Heard Shri Rakesh Kumar Singh, learned counsel for the appellants and Shri L.D. Rajbhar, learned A.G.A. for the State.
2. Present criminal appeal has been filed against the judgement and order dated 17.10.1984 passed by Shri U.N. Bansal, Vth Additional Sessions Judge, Hamirpur, in Sessions Trial No. 165 of 1979 (State vs Rama, Kedar, Gangadeen, Smt. Siya Dulari). By that order, the learned court below has convicted all the accused persons for offence under Section 302/34 I.P.C. They have been awarded life imprisonment. Appellants Rama, Kedar and Gangadeen are real brothers while appellant Smt. Siya Dulari is the wife of the deceased Asharam. All appellants were granted bail by this Court. During pendency of the present appeal, accused Kedar and Gangadeen died. Their appeal has been declared abated.
3. The prosecution story emerged on the strength of F.I.R. lodged on 23.05.1976, at 06:30 A.M., at Police Station Kabrai, District Hamirpur, under Section 302 I.P.C., at the instance of the accused-appellant Smt. Siya Dulari reporting that her husband - Asharam (deceased) was killed, the previous night, by Kripali and four others. In that, she narrated, the accused persons first visited her house in the morning of 23.05.1976 when her husband - the deceased Asharam accompanied them to bathe. He returned alone. At about 8:00 P.M., that night, Kripali and four others came to Asharam and were talking with him. Siya Dulari went to them. At that time, Asharam slapped her and sent her back inside their house. She went to sleep. After some time, the deceased Asharam also came inside the house and went to sleep. At mid-night, she heard some commotion. She woke up to find the entrance door of her house was open. A lot of people had gathered outside. It was discovered, Asharam had been killed on the barn of Kalkawa Raidas. He had been shot with a firearm. The F.I.R. is Ex.Ka.1 at the trial. On 23.05.1976, two recoveries were made, one of sample of blood stained and plain earth. That Recovery Memo is Ex.Ka.6 at the trial. Also, blood stained 'dhoti'/lower body cloth worn by the deceased was recovered. That Recovery Memo is Ex.Ka.7 at the trial. The Inquest Report was also prepared on 23.05.1976 between 9.00 A.M. and 11.00 A.M. It is Ex.Ka.3 at the trial. Thereafter, Dr. V.D. Mishra (P.W.-9) conducted the autopsy examination on the dead body of the deceased at about 11.30 A.M. on 24.05.1976. In that, he noted following ante-mortem injuries:
(1) Gun shot wound 21/4 cm x 2 cm. On right side back in entry upper part at the level of 4th vertebrae depth through and through. Wound of exit direction front and upward margins diverted tattooing charring present.
(2) Gun shot wound 1 cm x 1cm. Through and through on right side chest 13 cm. Above and inner from right nipple margin inverted.
(3) Gun shot wound 2 each 1cm x 1cm. Through and through on right side chest 4 cm below from injury no.2. Wounds are 1/6 cm apart from each other. Wound No. 2 & 3 are in communication with wound no.1. Margins of the wound inverted.
(4) Circular lacerated wound 1/4 x 1/4 cm. Breadth diameter 1/3/4 cm. On the middle part of chin.
(5) Lacerated wound 1cm x 1/2 cm x 1/6 cm. On right side face 2 cm. Below from right lower eye lid.
(6) Lacerated wound 2cm x 1/4cm x 1/4 cm. On right side chest 5 cm. Below from right armpit.
(7) Abrasion circular 1/6 x 1/6 cm. With 13/4 cm. In diameter on right side chest lower region.
(8) Abrasion circular 1/6 x 1/6 cm. With 13/4 cm. On right side abdomen 10cm. Away from umblicus.
(9) Abrasion 1/4 x 1/6 cm. On right lower eyelid middle part.
(10) Abrasion 1/6 x 1/6cm. On left lower eyelid outer part.
(11) Lacerated wound 3 x 2 cm x 1 cm. On right side face and chin 3 cm. Below from outer angle of right side mouth."
In his opinion, death was caused due to shock and hemorrhage as a result of injury no.1. Autopsy Report is Ex.Ka.14 at the trial. Also, the Chemical Examination and Serological Report, Hamirpur dated 23.08.1978 exists on record. It reports that the samples of earth and a 'dhoti' sent for chemical examination contained traces of human blood. It is Ex.Ka. 16 at the trial.
4. The investigation was subsequently transferred to the Crime Branch Crime Investigation Department (CBCID in short). On conclusion of Investigation, Inspector Ranveer Singh (P.W.-11) submitted the charge-sheet.
5. Upon the case being committed for trial to the Court of Sessions, following charge came to be framed against the appellants:
"That you in the night in between 22/23rd May 1976, at about 12.00 in village Rewai, P.S.Kabrai, district Hamirpur, in furtherance of your common intention to commit the murder of Asharam s/o Baldeo, committed murder of Asharam by intentionally causing his death and thereby you committed an offenee punishable u/s 302 I.P.C. read with section 34 of the same Code and within the cognizance of this court."
6. At the trial, besides relying on the above documentary evidence, the prosecution relied on the oral evidence led through eleven witnesses. In that, Nand Ram, a villager, was examined as P.W.-1. Other than the fact that the deceased was shot dead between 12.00 mid-night and 1.00 A.M., he could not prove any other fact either of any illicit relationship formed between the accused parties or the actual occurrence. At the same time, he proved that the brother of Smt. Ram Kali (P.W.-6) and the brother-in-law of the accused Rama, namely, Kripali, was present in their village along with 3-4 other persons, for an undisclosed work. During his cross-examination, he further admitted, he had made first disclosure of that fact to the CBCID and not earlier.
7. Next, Mannu, another villager, was examined as P.W.-2. He denied knowledge of any illicit relationship formed between the parties. He stated, 10-15 days earlier, deceased Asharam had slapped Smt. Siya Dulari, two to four times, for unspecified reasons. While Smt. Siya Dulari wanted to leave for her maternal home, others persuaded her to stay back. He could not prove if Smt. Siya Dulari was present near the place of occurrence, when it was caused. He however stated, around 10.00 P.M., the deceased was pacifying his 2- 2 year old child. In that, he heard him speak to the child that he would take him to his mother. As to the occurrence, he proved, it took place between 11.30 P.M. and 12.00 mid-night. In that, he heard gun fire. When he reached the place of occurrence, he found the dead body of the deceased.
8. Thereafter, Bhullu was examined as P.W.-3. He narrated, Siya Dulari and the deceased had quarreled over something, about a year before the occurrence, for unspecified reasons. Siya Dulari wanted to leave her house at that time. She was persuaded by 4-5 villagers to stay back. During his cross-examination, he denied existence of any illicit relationship between the accused persons. At that stage, he was declared hostile.
9. Thereafter, Kunwar Bahadur was examined as P.W.-4. He also proved the occurrence took place about 12.00 mid-night. He heard about the occurrence from his father and that he had not heard any gun fire. He denied existence of any illicit relationship between the parties. At that stage, he was also declared hostile.
10. Next, Dillipat, a Chowkidar, was examined as P.W.-5. He proved - on the date of occurrence, he had heard gun fire. He went out from his house and saw (in torch light) the accused Rama, Kedar and Gangadeen running to the north towards Banda-Mahoba road. At that time, Rama and Kedar were wielding guns while Gangadeen was holding a 'lathi'. In that, he also proved, Banda-Mahoba road was about 300 paces east from his house. He claimed, the accused Siya Dulari had illicit relations with the other three accused, namely, Rama, Kedar and Gangadeen. However, he led no evidence of having last seen the deceased with any of the appellant.
11. Thereafter, Ram Kali - wife of the accused Rama, was examined as P.W.-6. She first proved, her husband had formed illicit relations with the accused Siya Dulari. That was objected to, both by the said witness as also the deceased Asharam. To resolve that, her brother Kripali had come to hold a 'Panchayat'. That was not liked by Rama. Therefore, he became angry, both with Kripali as also the deceased Asharam. Next, she proved, because she feared for her brother Kripali's life, the latter slept at the barn of Nand Ram (P.W.-1). Last, she proved, before Asharam was killed, all the accused went from her house. At that time, while Rama was armed with a single barrel gun, Kedar was armed with a double barrel gun and Gangadeen was armed with a rifle. After some time, she heard gun fire and learnt, Asharam had been done to death. The said witness was examined on 18.11.1982. Her cross-examination was deferred to 06.12.1982 at the instance of the defence. Thereafter, she was never produced and, therefore, remained to be examined. The learned court below has made following observations in that regard:
"?????????? ??????? ?????? 6-12-82 ? ???? ??? ???? ???? ??????? ?? ??? ??????? ???? ???? ???????? ?????? ? ??????? ?????? ???? ???????? ?? ????????? ????? ?? ??? ?? ????? ?????? ???? ???? ???? ??????? ?? 5 ???? ?????? ??????? ?????? ?? ??? ???????? ???? 25-4-84 ?? ??????? ?????? ? ???? ????????? ?? ????? ??????? ???? ???? ?? ????? ???? ???? ?????? ??????? ?????? ?? ??????? ? ???? ?? 8-6-84 ?? ???? ????? ????????? ???? ???? ?? ???? ???? ???? ??? ?? ???? ???? ???? ???????? ????? ????, ????? ???????? ????? ?????? ?? ?? ??????? ??????? ??? ?? ??????? ????? ? ??? ???? ?? ????? ????? ?????? ?? ??????? ?????? ?????? ????? ???? ??? ??? ??? ?? ????? ?? ???? ???? ?????? ?? ??? ?? ????? ???? ???? ???? ???? ?? ?????? 22-5-84 ?? ?? ??????? ?? ??????? ??? ?? ?? ?? ???? ???? ?? ?? ??? ??? ??? ?????? 17-7-84 ?? ?? ????? ?? ??? ?? ?? ?? ?? ?????? 16-7-84 ?? ?? ??? ???? ???? ????????? ???? ???? ?? ??? ??? ?????? ?? ????? ?? ????? ?? ??? ???? ??? ???? ??????? ???? 82/83 ???? ????????? ?????? ?? ??????? ????????? ?? ????
???? ??????? ????? ????, ????? ???????? ????? ?????? ?????? ??????? ????? ??????? ????? ?? ?? ?????? ???? 57 ? ???? ???? ?????? ???? ??? ?? ??????? ?????? ?????????? ?????? ???? ???????? ?? ??? ?? ?? ?? ???????? ??? ????? ??????? ??? ??????? ???? ??? ??? ?????? ???? ? ????? ????? ???? ?? ?????? ?? ???????? ???? ?? ?????? ?? ???? ???? ?????? ?? ???????? ???? ?? ???????? ????/?? ?? ??????? ???? ???? ???? ?? ?????? ?? ????????? ????? ?? ???????? ????? ?? ?????? ???? ???? ??? ??? ?????? 4-8-1984 ?? ???? 59 ? ?????? ???????????? ??????? ????? ????, ????? ???????? ????? ?????? ?? ????? ???? ?? ??????? ?????? ?? ???????? ???? ? ???? ??????? ?? ???? ??? ?? ????? ???? ???? ???? ??? ?? ??? ???? ?? ????? ?? ??? ??????? ?? ?? ?? ??????? ?????? ?? ???? ?? ???? ????? ?? ?? ?? ?? ??? ?????? ??? ??? ??? ??? ?? ??? ??? ??????? ?????? ?????? ?? ?? ?????? ???? ???????? ??? ???? ??????? ??? ???? ? ?? ?? ???? ?????? ?? ????"
12. Then, Bishundha was examined as P.W.-7. He proved, Siya Dulari had formed illicit relations with the accused Rama. As to her relationship with the other two accused, he was not aware - if there existed any illicit relationship between those parties. He proved, his house was adjoining that of the deceased Asharam. Further, on the night of the occurrence, he was lying outside his house when the three accused persons, namely, Rama, Kedar and Gangadeen reached the house of Asharam and aggressively knocked at his door. At that stage, he further stated, the accused Siya Dulari was present with those three accused persons. Asharam refused to open the door and told Siya Dulari to leave with the other accused persons. However, on Siya Dulari asking the deceased to open the door, he complied. At that stage, the accused persons assaulted the deceased and throttled him. He heard desperate cries of help let out by the deceased described as 'gal galane'.
13. At the time of the occurrence, he was lying on his cot. He picked up his cot and went inside the house. He did not see the occurrence. He merely heard gun shot from the direction of barn of Kalkawa Raidas. In the morning, he learnt that Asharam had been killed.
14. During his cross-examination, it came out that his house was surrounded by a boundary wall that was higher than an average human being (on his side of the house) and a little lower on the side of his father's dwelling where he was lying on the cot, when he heard the occurrence, as narrated. At the same time, he specifically maintained, he had heard the noise of the accused persons knocking at the door of the deceased, while lying on the cot. He also maintained, on hearing the cries for help of the deceased, he picked up his cot and went inside and told his wife about the same. He further added, he raised an alarm but his neighbours did not come out for help. Only Kallu Domar reacted after about half an hour. Also, after he went inside his house, he heard a gun shot after about half an hour. Last, he admitted, he gave his statement first time to the CBCID orally and not to anyone else.
15. Next, Kallu was examined as P.W.-8. He could not prove any fact. He was declared hostile.
16. Thereafter, Dr. V.D. Mishra was examined as P.W.-9. He proved the ante-mortem injuries suffered by the deceased including one entry wound and two exit gun shot wounds as also eight other injuries including four lacerated wounds and four abrasions. He proved the Autopsy Report, as well.
17. Thereafter, Head Constable Girish Chandra Dubey was examined as P.W.-10. He proved the registration of the case and the relevant G.D. entries.
18. Last, the Investigation Officer Ranveer Singh was examined as P.W.-11. He proved the investigation and the submission of charge-sheet.
19. Thereafter, statements of the accused were recorded under Section 313 Cr.P.C. They denied their involvement in the occurrence. They cited false implication for reason of animosity and bad relations.
20. In that state of the evidence, the learned court below has convicted the appellants and sentenced them, as noted above.
21. Submission of learned counsel for the appellants is, present is a case of complete false implication. Not only there is no direct evidence, but also there was absolutely no reliable evidence of last seen. The description offered by Dillipat (P.W.-5) that he saw three accused persons, namely, Rama, Kedar and Gangadeen, running with their arms, is not an evidence of last seen. He has also not disclosed the place where he saw those accused persons running from. Though he claimed existence of electric torch, that torch was never recovered. Second, even that evidence is wholly doubtful inasmuch as the occurrence is of mid-night. Admittedly, the accused were at some distance, nearly 300 paces from his house.
22. Next, it has been stressed, the evidence of last seen presented by Bishundha (P.W.-7) is also not reliable inasmuch as that witness admitted that he never got up from his cot on which he was lying outside his house, surrounded by a high boundary wall. He also did not prove, he heard any word spoken by any of the accused person as may have helped him identify the accused, without making ocular contact. Further, his account is wholly non-corroborated through medical evidence inasmuch as no evidence exists, of throttling.
23. As to the evidence led by Smt. Ram Kali (P.W.-6), it has been stressed, the said witness is a highly interested witness. She was experiencing bad matrimonial relationship with her husband Rama, one of the accused, who had allegedly formed illicit relationship with Smt. Siya Dulari. She admitted, owing to such bad relations, she had called her brother Kripali to help her settle her matrimonial discord. She also proved, the said Kripali had come to her house with four other men, in that connection.
24. Merely because the said witness was not produced by the prosecution for cross-examination and no defence or credible evidence was led to establish either that she was being prevented by the accused persons to appear before the Court or that she had been done to death or that the defence had unduly delayed her cross-examination, the presumption available under Section 33 of the Indian Evidence Act, 1872, never became applicable. In any case, her version is wholly uncorroborated inasmuch as neither there is recovery of any firearm from any of the accused nor there is any other recovery or evidence to establish their involvement in the present occurrence.
25. Further, inherent improbability has been cited in her evidence inasmuch as, first the prosecution set up illicit relationship between Rama and Siya Dulari as the motive and then it exaggerated that allegation to involve the two brothers of Rama, namely, Kedar and Gangadeen, on a similar allegation. That allegation is inherently improbable. In any case, in absence of any evidence to establish such a fact, the very premise of the prosecution case, is doubtful.
26. Thus, in the context of the case built on circumstantial evidence, no part of evidence is complete. Here, it has also been pointed out, the prosecution has relied on two different site plans that are self-conflicted. Thus, the place of occurrence itself was not clearly proven.
27. On the other hand, learned A.G.A. would submit, wholly credible evidence exists. In a case of circumstantial evidence, the prosecution may not be burdened to establish more than what is necessary. The evidence of last seen exists. Motive has clearly been proven, amongst others, by Smt. Ram Kali (P.W.-6), the wife of the accused Rama. By virtue of that relationship, the evidence led by Smt. Ram Kali (P.W.-6) may not be discarded, easily. First, the defence did not cross examine the said witness on 18.11.1982. Thereafter they have caused her disappearance as was clearly informed by Prakash Chandra Dixit through Application Paper No. 59Kha. Relying on the evidence led by Dillipat (P.W.-5) and Bishundha (P.W.-7), it has been stressed, the credible evidence of last seen exists.
28. Having heard learned counsel for the parties and having perused the record, in the first place, we note, the F.I.R. was lodged by the accused Siya Dulari at 6:30 A.M., on 23.05.1976 accusing Kripali, brother-in-law of the accused Rama and unknown assailants. While no evidence may have been found against Kripali, it is doubtful if credible evidence was led against the appellants Rama and Siya Dulari. Clearly, present is not a case of direct evidence. As to circumstantial evidence, we are unable to accept the submission advanced by learned A.G.A. that evidence of last seen exists. Dillipat (P.W.-5) did not see the accused in the presence of the deceased. He also did not prove that he saw the accused persons flee from near the place of occurrence i.e. where the dead body of the deceased was recovered. He only proved, he saw the appellants - Rama, Kedar and Gangadeen, flee from near his house, towards the Banda-Mahoba Road, that was at a distance of about 300 paces from his house. That occurrence is of about 12:00 midnight, on 22/23.05.1976. No source of light was established inasmuch as neither there was any electric street light etc. available nor it can be accepted that he could have seen those appellants flee in torch-light inasmuch as no torch was ever recovered by the police or exhibited at the trial. No evidence was led with reference to the site plan to establish that the said witness had any occasion to see what he narrated before the learned court below.
29. Even if it is accepted that he saw the appellants - Rama, Kedar and Gangadeen flee, it may not be a circumstance to establish the guilt of the present appellants. There may exist many other circumstances in which the accused persons may have been seen to flee. Assuming that there existed allegation of illicit relationship formed by Rama with the wife of the deceased (as primarily alleged), in the event of his death, other occasions may arise as may lead to the appellants to physically distance themselves from the occurrence.
30. Insofar as Bishundha (P.W.-7) is concerned, he is an unreliable witness inasmuch as in the first place, he has rendered an inherently improbable account wherein lying on a cot he heard noise of some persons aggressively knocking at the door of the deceased. Yet, he did not hear any word spoken. He did not get up from the cot but assumed it must be the present appellants. Second, he proved, boundary wall of his house was higher than the average human height. Lying on a cot inside that boundary wall, he was disabled from viewing the occurrence outside his house at ground level. No effort was made by him to establish that in that circumstance he could witness what he narrated.
31. Then, further improbability exists in his account as he narrated, he picked up the cot and went inside and told his wife about the occurrence and also called out to his neighbours. Having not bothered to check himself by making any ocular observation, it is difficult to accept that such a person would raise an alarm. Perhaps, he took it to be a regular domestic quarrel or assault in which he found it not prudent or desirable to get involved and therefore went inside his house for his own peace.
32. Third, most critically, his narration is unreliable because he narrated that the deceased was being throttled by the assailants. However, absolutely, no injury mark has been proven by the doctor on the neck area of the deceased. The story of throttling is therefore wholly unfounded.
33. Thus, the said witness saw nothing and heard nothing about the occurrence. He has made up a story later. He is wholly unreliable.
34. Insofar as Smt. Ram Kali (P.W.-6) is concerned, in the first place, she also did not lead any evidence of last seen. She only proved that she had seen all the appellants including Siya Dulari, leave her house. How and at what time and for what purpose, Siya Dulari, the wife of the deceased Asharam came to her house, has been left open for speculation, by the prosecution.
35. In that light, we are mindful that in the beginning of her statement, she proved, her husband Rama had formed illicit relationship with Siya Dulari, for which reason, she had called her brother, Kripali, to settle her matrimonial discord. She further proved, Kripali had arrived with four other persons and was present in the village, on the date of occurrence. In such circumstances, a wholly improbable account has been offered that at the same time, the appellant Siya Dulari visited her house and all the accused persons went out together.
36. The above aspects could have only be tested by effective cross-examination. The record reveals that though examination-in-chief of Ram Kali (P.W.-6) was completed on 18.11.1982, only one adjournment may have been sought by the defence for her cross-examination on 06.12.1982. That is wholly usual. Thereafter, she did not appear or was not produced by the prosecution, for cross-examination.
37. The finding of the learned court below that she was prevented by the defence from appearing before the learned court below, is presumptuous and imagined. In fact it is self-contradicted. It has been clearly observed by the learned court below that on 22.05.1984, a report was received that the said witness, Ram Kali (P.W.-6), had gone away to her sister's house. Therefore, she was alive and available till then. Next, on 17.07.1984, the learned court below was informed that the said witness fled on the police reaching her place on 16.07.1984. Therefore, she was alive till that date. Also, it is not on account of the conduct of the defence but the own conduct of the witness that she fled from the police and thus avoided her duty to appear in Court, as a witness.
38. Having made those reports, the duty of the prosecution to produce the witness and allow the Court to reach the correct inference in fact was avoided by the prosecution on account of its own lapses. To the extent it was reported to the Court that the said witness had gone away to her sister's place and therefore was not available and later she fled on seeing the police authorities at that place, may only be relevant to establish the inadequate steps taken by the prosecution. No report was submitted to establish the final outcome of the proceeding initiated under Section 82/83 Cr.P.C.
39. Seen in that light, it is rather surprising that the learned court below has acted on the application dated 04.08.1984 filed barely two weeks after the submission of the earlier report dated 17.07.1984 (up to which time the witness was definitely alive and available), to infer that the accused-appellants had abducted the witness and may have killed her and disposed of her body in a river etc. Absurd as it is, that inference suggested to the Court, we are surprised at the readiness of the learned trial Court to accept that suggestion. The prosecution has shirked from its responsibility and the learned Court below has allowed the prosecution to get away with its lapses. Suffice to note, we do not find it a fit case where the pre-conditions of Section 33 of Indian Evidence Act 1872 were fulfilled. For that reason, evidence of Ram Kali (P.W.-6) has to be discarded, in entirety.
40. What is then left is mere suspicion voiced by the prosecution by the witnesses without proof the appellants had caused the murder of Asharam. Absolutely, no corroboration exists through any recovery or ballistic report as may lead the Court to examine the chain of evidence so complete as may further lead to a singular conclusion of the guilt of the appellants.
41. In fact, we are constrained to observe, leaving the chain of evidence apart, even the individual links of the evidence could not be established other than a nebulous motive of illicit relations formed either by Rama with Siya Dulari and/or the accused Rama, Gangadeen and Kedar with the said Siya Dulari.
42. In view of the above, the appeal succeeds and is allowed. The impugned judgment and order dated 17.10.1984 is set aside. The surviving appellants Rama and Smt. Siya Dulari are on bail. They need not surrender. Their bail bonds and sureties are discharged. However, both the surviving appellants Rama and Smt. Siya Dulari are directed to furnish bail bonds in compliance of Section 437-A Cr.P.C. to the satisfaction of the Court concerned, within two months from today. Pending application/s, if any, stand disposed of.
43. A copy of this judgment along with the trial court record be transmitted to the Court concerned for necessary compliance. Compliance report be submitted to this Court, at the earliest. Office is directed to keep the compliance report on record.
(Tej Pratap Tiwari,J.) (Saumitra Dayal Singh,J.)
September 16, 2025
Prakhar
