Allowed

Raja Ram and Others v. State of U.P.

Allahabad HC29 Apr 2019CRLA/839/2005

Case brief

AI extract

What is this about?

The High Court allowed the appeal in a murder case, setting aside the conviction and sentencing of the appellants. The court held that the prosecution failed to establish its case beyond reasonable doubt due to significant contradictions between the ocular testimony of witnesses and the medical evidence regarding injuries and time of death, alongside investigative lapses. Consequently, the appella

What did the court decide?

The judgment and order dated 17.1.2005 were set aside. The appellants were acquitted of the charges.

Raja Ram and Others Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2019)

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(Judgement reserved on 10.4.2019) (Judgement delivered on 29.4.2019)

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Court No. - 53

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Case :- CRIMINAL APPEAL No. - 839 of 2005

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Appellant :- Raja Ram And Others Respondent :- State Of U.P. Counsel for Appellant :- Vinay Saran,Jag Narayan,S.V. Singh,V.P.Srivastava,Vinay Saran Counsel for Respondent :- Govt. Advocate

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Hon'ble Pankaj Naqvi,J. Hon'ble Umesh Kumar,J.

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(Delivered by Hon.Pankaj Naqvi,J)

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This appeal has been preferred against the judgment and order dated 17.1.2005 passed by Additional Sessions Judge/Fast Track Court No.2, Farrukhabad in S.T. No.366 of 1995, whereby appellants have been convicted/sentenced under Section 302/149 IPC to life with fine of Rs.10,000/each a default sentence of 6 months along with the ancillary convictions/sentences.

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The prosecution case in brief is that there existed preexisting enmity between accused Rajaram and P.W-1 the informant, and his sons Brijlal and Rajeshwar (victims) as the latter 3 were falsely implicated in the murder of the son of accused Rajaram i.e, Ramdev, 2 years ago. On 24.7.1993 while Brijlal (victim) and his brother Rajeshwar (victim) were

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weeding at the corn fields, P.W-1 and P.W-2 (son of P.W-1) were also performing the similar task at the fields sown with groundnut. At about 7 in the morning, accused Rajaram, Mewaram both armed with SBBL gun, Krishnapal, Surendra, Ranveer and Gajraj with country made pistols and Daulat @ Bhure with DBBl gun and a Banka (sharp cutting weapon) came at the fields of P.W-1, flaunting their respective weapons accused Rajaram exhorted that “today they would avenge for the death of the son of Rajaram”, whereupon all accused persons gheraoed both the victims, indiscriminately fired at them, fearing for his life victim Brijlal ran towards southern side towards the sugarcane fields of Malkhan and another victim Rajeshwar ran towards the western side but the accused opened fire at victim Brijlal, accused Daulat severed his head with a Banka (sharp cutting weapon) and victim Rajeshwar succumbed to the injuries at the scene. The accused persons carried with them the severed head of Brijlal.

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During trial accused Surendra and Gajraj died, trial abated against them.

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The trial court finding P.W-1 and 2 wholly reliable, medical evidence compatible with the ocular account, convicted/sentenced the appellants as above.

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We have heard Shri Vinay Saran for appellant nos. 1 to 4, Shri S.V.Singh for appellant no.5 and Shri A.N.Mulla the learned A.G.A.

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Learned counsel for the appellants broadly canvassed the following contentions;-

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(i) P.W-1 and 2 were not present at the scene as their ocular testimony is not authenticated with the nature of injuries on both the deceased.

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(ii) Autopsy indicates that more than 36 hours had passed since the death meaning thereby that i.e, the death had taken place around wee hours of 23/24.7.93 in the jungles by unknown assailants as both the victims had strong criminal history.

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(iii) The prosecution failed to explain a single shot at the top of skull of victim-Rajeshwar.

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(iv) The place from where both the eye-witnesses saw the occurrence has not been shown in the site plan.

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(v) The prosecution alleged that accused indiscriminately fired at the victims but the autopsies of Brijlal and Rajeshwar indicate an incised wound on the neck of Brijlal and a single firearm injury on the top of the head of Rajeshwar.

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(vi) Recovery of only two cartridges and no recovery of offensive weapons seriously dents the prosecution story.

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The learned A.G.A, opposed the submissions.

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P.W-1 is the father of both the deceased Brijlal and Rajeshwar. He along with P.W-2,on the fateful day was removing weeds from the groundnut fields and his 2 sons (victims) were also performing similar task in the adjoining corn fields at around 7 in the morning. He alleged that both the victims died due to use of fire-arms and the head of Brijlal severed by one of the accused. The body of Brijlal fell at sugar cane fields, and that of Rajeshwar towards the western side. The severed head of his son was offered at the temple of a local deity thereafter thrown into the Ganges. He admitted that he did not go to the place of occurrence again after the incident took place. He also admitted that dead bodies of the victims were shifted from the place of occurrence. He stated that neither the I.O, inspected the site before him nor he prepared the site plan before him.

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P.W-2 nominated two fires of 12 bore on the face of Rajeshwar (victim) and one on his head involving the use of

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315 bore. According to him accused Rajaram, Daulat, Mewaram, Krishnapal, Ranvir, Surendra and Gajraj fired from their respective weapons at Brijlal, causing his death and accused Daulat with the help of gandasa (sharp cutting weapon) severed his head and offered the same at the local deity, eventually severed head thrown into the Ganges. He admitted that two constables were sent already by the I.O, and he reached his house at about 9.30 A.M, he came across the I.O who was already present there, dead bodies of the victims were also brought at his house and sealed. He stated that one fire hit on the thigh of Brijlal, he saw this thigh injury, when the accused fled away he along with P.W-1 went near the dead bodies and both of them saw all the injuries of the victims.

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We now proceed to examine the medical evidence in the light of ocular evidence.

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P.W-5 the medico conducted the autopsy (Ex Ka-17) of Brijlal on 25.7.1993 at 2.10 PM. He noticed the following condition of the body and the ante-mortem injuries:-

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dVk gqvk ?kko xnZu ds fupys Hkkx ij xnZu dh ikWpoh dlsldk ds ysfoy rd FkkA flj xk;o FkkA QVs gq, ?kko ij tek gqvk [kwu ekStwn FkkA QsQMs ds mij dh f>Yyh lMuk 'kq: gks x;h FkhA nksuks QsQMs lMus 'kq: gks x;s FksA ân; eqyk;e o [kkyh FkkA vkek'k; esa yxHkx 120 xzke ipk gqvk Hkkstu FkkA NksVh vkWr esa ipk gqvk Hkkstu ,oa xSls FkhA cMh vkWr esa ey ,oa xSls FkhA ftxj esa lMu 'kq: gks x;h FkhA fiRrk'k; vk/kk Hkjk gqvk FkkA frYyh xqnsZ esa lMu 'kq: gks x;h FkhA is'kko dh FkSyh esa 25 ,e-,y- is'kko FkhA MkDVj dh jk; ds vuqlkj eR;q dk dkj.k jDr Loko ,oa lnek Fkk tks eR;q ls iwoZ vk;h pksVksa ds dkj.k FkkA

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P.W-5 on the same date at 3 PM conducted the autopsy (Ex Ka-18) of Rajeshwar. He noticed following condition of

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the body and ante-mortem injuries:-

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vfXu;kL= dk xksyh ?kwlus dk ?kko 3 lseh- x 1 lseh- diky xqgk rd xgjk flj ij mij dh vksj ok,a dku ls 12 lseh- mij rFkk ukd ls 14 lseh- mij FkkA ?kko ds fdukjs vUnj dh vksj eqMs FksA efLr"d okgj vk jgk FkkA foPNsnu djus ij okbZ VsEijy iSjkbVy rFkk vkDlhfiVy gfM~M;kW VwVh gqbZ FkhA efLr"d dh f>Yyh dVh gqbZ FkhA efLr"d yqxnh tSlk gks x;k Fkk rFkk tek gqvk [kwu FkkA diky dk vk/kk rFkk chp dk Hkkx VwVk gqvk FkkA diky xqgk ls fodr xksyh cjken dh x;h FkhA 'ko foPNsnu ij QsQMs ds mij dh f>Yyh] nksuksa QsQMs lMus 'kq: gks x;s FksA ân; eqyk;e o [kkyh FkkA nkWr 14&14 FksA vkek'k; esa yxHkx 100 xzke ipk gqvk Hkkstu FkkA NksVh vkWr esa dgh dgha xSls ,oa ipk gqvk Hkkstu FkkA cMh vkWr esa dgha dgha ey ,oa xSls FkhA ;dr] frYyh nksuksa xqnsZ lMus 'kq: gks x;s FksA is'kko dh FkSyh esa 30 ,e-,y- is'kkc FkhA MkDVj dh jk; ds vuqlkj eR;q dk dkj.k lnek ,oa jDr Loko Fkk tks eR;q iwoZ igqWpk;h x;h e`rd dh pksVs FkhA 'kjhj ij dgha dgha QQksys Fks rFkk dgha dgha [kky m/kMh FkhA 'ko ls nqxZU/k vk jgh FkhA lw[kk o tek gqvk [kwu psgjs ij ekStwn FkkA

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P.W-5 was not ruling out death of both the victims on

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24.7.1993 at around 3 A.M.

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To recapitulate it is the specific case of prosecution

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witness (P.W-1 and 2) that accused indiscriminately fired at both the victims, Brijlal received fire-arm injury on his thigh and Rajeshwar on his face. The autopsy (Ex Ka-17) of Brijlal indicates the presence of a single ante-mortem injury, but no sign of any firearm injury. The autopsy (Ex Ka-18) of Rajeshwar indicates the existence of injury no.1 as noted above on the top of skull but no injuries on his face. No doubt witnesses have a tendency to exaggerate to add colour and gravity to their case but if a specific alleged injury is found to be absent, veracity of the witness does come under suspect, suggesting that P.W-1 and 2 were not present at the scene to witness the occurrence.

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How rigor mortis sets in and passes off has been described in “Parikh's Text Book of Medical Jurisprudence, Forensic Medicine and Toxicology , Eight Edition at page 158, as under;-

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“In India, rigor mortis commences in 2-3 hours, takes about 12 hours to develop from head to foot, persists for another 12 hours, and takes about 12 hours to pass off . Thus, the presence and extent or absence of rigor mortis helps to provide a rough estimate of the time since death. As for example, if rigor mortis has not set in, the time since death would be within 2 hours and if it has affected the whole body, the time since death would be within about 12-24 hours.”

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This rule is commonly known as Rule of 12. PW-5, the doctor after noticing the condition of both the corpses opined that rigor mortis had passed off, foul odour, emanating from the bodies, skin peeled off, blisters present and maggots appearing, suggesting that more than 37-38 hours had elapsed since the time of death ie, death may have taken place around 12 A.M contra to 7 A.M. Though rigor mortis in itself is not conclusive evidence as it is dependent upon factors such as age and condition of the body, mode of death and surroundings. There could be a variation of 6 hours on either side as to the time of death. But this `anomalous position is further evident with the glaring contradictions between the ocular and medical evidence. Ordinarily in the event of a conflict between the oral and the medical testimony, former is to prevail. However, in the present case said proposition will not hold good as contradictions are glaring and writ large which cannot be ignored as trivial or minor so as to rely upon ocular account of witnesses whose presence at the scene is in grave doubt.

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PW-1, the informant admitted that the I.O (P.W.4) neither

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prepared the site plan ( Ex. Ka-15) on his directions nor was it prepared before him. On the other hand the I.O asserted that the site plan (Ex Ka-15) was prepared at the instructions of P.W-1. If that was so the I.O ought to have indicated the points in the site plan from where P.W-1 and 2 witnessed the occurrence. This cannot go as an investigational default where presence of P.W-1 and 2 is highly doubtful, injuries not compatible with the ocular account, absence of recovery of weapon or for that matter recovery of only two empty cartridges when the case of prosecution was that of indiscriminate firing cannot improve the case of prosecution, which is already under grave suspect. It is not the case of prosecution that P.W-1, the informant did disclose to the I.O (P.W.4) as to the place from where they witnessed the occurrence but the IO (P.W.4) failed to take cognizance of the same, which could have gone as an investigational flaw. Both the deceased had strong criminal history, possibility of their elimination by unknown assailants in the jungle cannot be ruled out.

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In the ultimate analysis, are of the view that the

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prosecution failed to establish its case beyond a reasonable doubt, entitling the appellants to acquittal.

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The appeal is allowed . The judgment/order dated 17.1.2005 is set aside. The appellants are acquitted of the charges. Appellants nos. 1 to 4 are on bail. Their bail bonds stand cancelled and sureties discharged. Appellant no.5 is in jail. He shall be released forthwith, unless detained in any other case.

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Let this judgment/order be communicated to the Trial Court forthwith. Compliance report be submitted within 2 months.

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Order Date :- 29 . 4.2019 RS

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(Umesh Kumar,J) (Pankaj Naqvi,J.)

Raja Ram and Others v. State of U.P.

Case brief

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Raja Ram and Others v. State of U.P.

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