Allowed

Ramesh Kachhi and Another v. State of U.P.

Allahabad HC22 Aug 2019CRLA/984/2007

Case brief

AI extract

What is this about?

Appeal by two accused against conviction under Sections 304/34 and 308/34 IPC for the assault and death of the deceased and injuries to an injured witness. The court found the witnesses highly interested, the motive unproved, the timing and place of occurrence doubtful and the ocular evidence uncorroborated by medical evidence, and acquitted the appellants.

What did the court decide?

Appeal allowed; conviction and sentence set aside; appellants acquitted of the charges and to be released forthwith, on furnishing bonds under Section 437-A Cr.P.C.

Ramesh Kachhi and Another Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2019)

¶1

Court No. 47

¶2

Reserved on 07.08.2019 Delivered on 22.08.2019

¶3

Case :- CRIMINAL APPEAL No. - 984 of 2007 Appellant :- Ramesh Kachhi And Another Respondent :- State Of U.P. Counsel for Appellant :- P.V. Singh, Syed Imran Ibrahim, Jitendra Singh, Ajay Kumar Kushwaha, P.K. Singh, Yogesh Kumar Srivastava Counsel for Respondent :- Government Advocate

¶4

Hon'ble Ram Surat Ram (Maurya) ,J. Hon'ble Umesh Kumar, J.

¶5

[Delivered by Ram Surat Ram (Maurya) , J.]

¶6

Heard Sri Yogesh Kumar Srivastava, for Ramesh Kachhi (appellant-1), Sri Asim Gupta, holding brief of Sri Syed Imran Ibrahim, amicus curiae, for Ramdeen @ Tanta (appellant-2), Sri Nafees Ahmad, A.G.A., for State of U.P.

¶7

Ramesh Kachhi and Ramdeen @ Tanta have filed this appeal from their conviction and sentence passed by Additional Sessions Judge/Fast Track, Court No. 2, Banda, dated 05.02.2007/06.02.2007, in S.T. No. 9 of 2006, State vs. Ramesh Kachhi and another, [arising out of Case Crime No. 113 of 2005, under Section 304/34 and Section 308/34 of Indian Penal Code, 1860 (hereinafter referred to as the IPC), police station Kalinjar, district Banda], convicting them, under Section 304 read with Section 34 IPC and sentencing for imprisonment for life and fine of Rs. 5000/- each and under Section 308 read with Section 34 IPC and sentencing for five years rigorous imprisonment and fine of Rs. 2000/- each, with default stipulation.

¶8

On the written complaint (Ex-Ka-1) of Matadeen (PW-1), F.I.R. (ExKa-7) of Case Crime No. 113 of 2005 was lodged under Section 304, 324, 323 I.P.C. against Ramesh Kachhi and Ramdeen @ Tanta on 27.08.2005 at 21:30 hours, by Constable Moharrir Kishan Lal (PW-6). It has been stated in the F.I.R. that the house of Sanjay Kacher son of Shyam Lal, aged about 17 years adjoined to the house of Ramesh Kachhi son of Bhairam Kachhi. Sanjay Kacher used to play T.V., C.D. in his house, through out the day and night. Ramesh Kachhi and his family members used to object it as in the house of Ramesh Kachhi, his sisters were residing. Sanju son of Babloo Koshtha, aged about 18 years, first cousin of the informant, always used to go to the house of Sanjay Kacher for viewing T.V., C.D. as they were friends. As

¶9

¶10

usual, on 27.08.2005 at about 8:00 AM, Sanju Koshtha had gone to his field situated at Bhatihan Har, ahead Sukhana Nala, where Sanju Koshtha had his dera (cattle shed), where his cattle used to be tied. Being Janmashtami, Sanjay Kacher had also gone to the dera of Sanju Koshtha. The informant had also gone in his field, towards that place. In the evening, Sanju Koshtha and Sanjay Kacher were returning to their house at Katra from dera. As soon as, at about 5:30 PM, they reached near the field of Chhote Yadav at Sukhana Nala, Ramesh Kachhi son of Bhairam, Ramdeen @ Tanta son of not known, resident of Reuna, Kotwali city, Banda, who was residing at the house of Achchhe Lal Kushwaha at village Katra, from about two years, armed with danda, knife and barchhi, came from the side of village Katra and began to assault Sanjay Kacher. Sanju Koshtha intervened in the incident. Then they badly assaulted Sanju Koshtha. The informant and Sitaram, brother of Sanju Koshtha were going to their house from the field at that time. Looking to them Ramesh Kachhi and Ramdeen, who had caused grievous injuries from danda, knife and barchhi, fled away. They were taking the injured to Banda for their treatment on the Bulero of Lakhan Baba but Sanju Koshtha died in the way. Then they returned back to his village Katra and kept his dead body at his house. Family members of Sanjay Kacher has taken him to Banda in another vehicle, for his treatment. After lodging FIR, legal action be taken against the accused.

¶11

After lodging F.I.R., SI Prem Chand (PW-8) started investigation. He copied check F.I.R., G.D. entry in Case Diary and recorded statement of the scribe of FIR on 27.08.2005. He came to village Katra and conducted Inquest (Ex-Ka-3) of the dead body of Sanju Koshtha on 28.08.2005 in between 6:00 to 7:15 AM. He prepared Police Form-13, photo lash, challan lash, letters to the authorities etc. (Ex Ka- 10 to 14) for postmortem and dispatched the dead body for postmortem through Constable Shyam Babu and Home Guard Nandram. He recorded statement of the informant Matadeen, on his pointing out, inspected the place of occurrence on 28.08.2005 and prepared site-plan (Ex-Ka-16). He took blood stained earth and plain earth and prepared its recovery memo (Ex-Ka-2). He recorded statements of Chhote Lal, Rajesh Dwivedi, Ram Swarup, Babloo and Kalyan. He copied Postmortem Report

¶12

¶13

and Injury Report in case diary. He recorded statements of Sanjay, his mother Smt. Vimla and Sitaram. In the meantime, the accused surrendered before the Court and were sent to jail. He recorded statements of the accused in jail on 12.09.2005, in which they confessed their guilt and become ready to recover the lathi used for commission of crime. He took the accused in police custody remand and on their pointing out two lathi were recovered on 16.09.2005 at 11:45 AM and its recovery memo (Ex-Ka-17) was prepared. He recorded statements of Chhote Lal, Kashi Bahori, Girja Shankar, Constable Shyam Babu and Home Guard Nandram. On the basis of Injury Report of Sanjay Kacher, he converted the case under Section 308 IPC on 29.09.2005. After completion of investigation he submitted charge sheet (Ex-Ka-20) against the accused, on which cognizance was taken.

¶14

Dr. R.A. Ratnakar (PW-5) conducted autopsy of the dead body of Sanju Koshtha on 28.08.2005 at 4:30 PM and prepared postmortem report (Ex-Ka6), in which following ante-mortem injuries were noted:-

¶15

(i) A wound of 4 cm x 1 cm x bone deep present at right eyebrow 06 cm anterior to right ear. Margines irregular.

¶16

(ii) A wound 1 cm x 1 cm x bone deep, 05 cm above to injury no. (i). Margines irregular.

¶17

(iii) A wound 2 cm x 1 cm x bone deep present at lower right side mandible, 04 cm below from right mouth angle. Underlying bone is fractured.

¶18

(iv) A wound 2 cm x 1 cm x bone deep present on lower right mandible, 01 cm above to injury no. (iii).

¶19

(v) A wound 2 cm x 1 cm x muscle deep present at right mouth angle.

¶20

(vi) A contusion 05 cm x 04 cm oval on left side face, 02 cm anterior to left ear.

¶21

(vii) A wound 03 cm x 02 cm x bone deep present on vertex of skull, 08 cm above to right eyebrow and 10 cm above to right ear. Underlying bone are fractured.

¶22

In internal examination, right parietal, frontal and lower mandible

¶23

¶24

bones were fractured; hearth was empty, stomach was empty, small intestine contained gases and large intestine contained faecal matter and gases; gall bladder full; urinary bladder was empty. According to doctor's opinion death was caused “due to shock and hemorrhage as a result of ante mortem injuries.

¶25

From C.H.C. Naraini, Sanjay Kacher was referred to District Hospital Banda, where Dr. S.K. Baswani (PW-4) examined him and prepared Injury Report (Ex-Ka-4), in which following injuries were noted:-

¶26

Injuries:- (i) Lacerated wound on left side of skull 06 cm above left eyebrow 1.5 cm x 0.5 cm x muscle deep. Bleeding on touch.

¶27

(ii) Reddish abraded contusion on left side of forehead just above left eyebrow 05 cm x 05 cm.

¶28

(iii) Three lacerated wounds on posterior aspect of skull 10 cm behind left ear in area of 05 cm x 05 cm. Size 2 cm x 0.5 cm x muscle deep to 3 cm x 0.5 cm x muscle deep. Bleeding on touch.

¶29

(iv) Reddish abraded contusion & deformity on left side of mandible, 0.5 cm x 0.5 cm.

¶30

(v) Traumatic reddish swelling & deformity on upper half of right forearm. Diffuse.

¶31

(vi) Traumatic reddish swelling on posterior aspect of right hand. Diffuse.

¶32

(vii) Traumatic reddish swelling on posterior aspect of left hand. Diffuse.

¶33

Opinion:- Caused by hard and blunt objects. About fresh. Kept under observation & advised X-rays.

¶34

On committal, the case was registered as S.T. No. 9 of 2006. Additional Sessions Judge framed charges against the accused on 15.02.2006. The accused pleaded “not guilty” and claimed trial. In order to prove the charges, the prosecution examined Matadeen (PW-1), the informant and an eye witness, Sanjay Kacher (PW-2), an injured witness, Sitaram (PW-3), an eye witness, Dr. S.K. Baswani (PW-4), to prove Injury Report of Sanjay Kacher

¶35

¶36

(Ex-Ka-4), Dr. R.A. Ratnakar (PW-5) to prove Postmortem Report (Ex-Ka-6), Constable Kishan Lal (PW-6), to prove check FIR, Uma Shankar Dwivedi (PW-7) to prove Injury Report of Sanjay Kacher as prepared at CHC Naraini and SI Prem Chand (PW-8) Investigating Officer and filed documentary evidence.

¶37

After completion of the evidence of the prosecution, all the incriminatory facts and materials were put to the accused under Section 313 CrPC. They denied the facts and materials and stated that they were falsely implicated due to village enmity. 9. The Trial Court after hearing the parties found that the motive as alleged by the prosecution has been proved. Date, time and place of occurrence has been proved. The charges have been proved beyond reasonable doubts, from the statements of Matadeen, Sanjay Kacher and Sitaram. On these findings, he convicted and sentenced the accused. Hence, this appeal has been filed. 10. In order to prove the charges, the prosecution has examined Matadeen, Sanjay Kacher and Sitaram (PWs-1, 2 and 3) as the witnesses of the incident. Matadeen (PW-1) stated that he knew Sanjay Kacher of his village. The house of Sanjay Kacher was adjoining to the house of Ramesh Kachhi son of Bhairam. Sanjay Kacher always used to play T.V., in his house. Ramesh Kachhi and his family members used to object it, due to the reasons that there were girls in his house. Sanju Koshtha was his cousin and friend of Sanjay Kacher. He always used to go to the house of Sanjay Kacher for viewing T.V., C.D. The incident occurred on 27.08.2005. On that day, as usual, Sanju Koshtha went to his field at about 8:00 AM situated ahead at Sukhana Nala, where Sanju Koshtha had his dera (cattle shed), where his cattle used to be tied. That day was the day of Janmashtami. Sanjay Kacher also went to the dera of Sanju Koshtha. The informant had also gone in his field, towards that place. In the evening, Sanju Koshtha and Sanjay Kacher were returning to their house at Katra from dera. At about 5:30 PM, as soon as, they reached near the field of Chhote Yadav at Sukhana Nala, Ramesh Kachhi and Ramdeen @ Tanta, present in the Court, armed with danda, knife and barchhi, came there and began to assault Sanjay Kacher. Sanju Koshtha intervened in

¶38

¶39

the incident. Then the accused present in the Court badly assaulted and caused grievous injuries to him. He and his brother Sitaram were going to their house from the field at that time and saw the incident. They challenged the accused, then they fled away, taking their lathi, barchhi and knife with them. They were taking the injured to Banda for their treatment on the Bulero of Lakhan Baba but Sanju Koshtha died in the way. The death of Sanju Koshtha had occurred due to the injuries received by him in that incident. Then they returned back to his village Katra and kept his dead body at his house. Family members of Sanjay Kacher has taken him to Banda in another vehicle, for his treatment. He got the complaint (Ex-Ka-1) scribed from Rajesh Trivedi, dictating him and after reading over, signed it and gave it to the police station, on which the report was lodged. Ramdeen @ Tanta was resident of Reuna Digwahi and was married to the house of Achchhe Lal Kushwaha of the village Katra and was residing at his house from about two years as such he fully recognized him. Investigating Officer took blood stained and plain earth from the spot and prepared its recovery memo (Ex-Ka-2), which was signed by him. Investigating Officer conducted Inquest (Ex-Ka-3) of the dead body of Sanju Koshtha, in which he was one of the Panch.

¶40

In cross-examination, he has stated that houses of Sanjay Kacher and Sanju Koshtha situated in different mohallas, at a distance of about 100 lathi. Houses of the accused Ramesh and Ramdeen, which was purchased by him situated at a distance of 100 paces from the house of Sanjay Kacher, in south. There were electricity connection in the houses of Sanjay Kacher and Sanju Koshtha, while in the house of Ramesh and Ramdeen, there was no electricity connection. The deceased Sanju Koshtha was engaged in agriculture. His father had purchased 20-22 bigha land from Sukkhu Trivedi. Sanjay Kacher was an student and was studying in Ujjain. He has enmity with Dinesh, nephew of Sukkhu Trivedi. On 27.08.2005, he had gone towards his field for agricultural work at about 10:00 AM, which was in that side. Sanju Koshtha had gone towards dera at 8:00AM. Sitaram went towards his field at about 9:00 AM. One bangala (where fodder, chaff etc. for cattle were kept) was constructed at the dera of Sanju Koshtha and one hut was constructed for tying the cattle. His field and the field of Sitaram situated at a distance of one

¶41

¶42

kilometer from the dera of Sanju Koshtha and at a distance of 2 kilometer from Sukhana Nala. At that time arhar and millet crops were sown in the field. In between the dera of Sanju Koshtha and Sukhana Nala, the land was uneven, deep pit and uncultivated. Sanju Koshtha and Sanjay Kacher were going towards north from dera. As soon as they reached near the field of Chhote Yadav, the accused assaulted them. When the fight was going on, he turned from his field towards Matihan, the dera of his uncle, where Sitaram was present at that time. The accused came on the spot from the side of Sukhana Nala. In the lathi of Ramdeen, barchhi was affixed and in the lathi of Ramesh, iron ring was affixed, who had knife also. First of all, Ramesh assaulted Sanjay Kacher from lathi and knife. Then Ramdeen also began to assault Sanjay Kacher, from danda and not from barchhi. Sanju Koshtha began to save Sanjay Kacher, then the accused assaulted Sanju Koshtha from lathi, barchhi and knife. Sanju Koshtha received injuries on his head, forehead, above right eye and left side of his face. Sanjay Kacher received injuries on his left hand and head. At the time of incident, he and Sitaram were at a distance of 50 paces. On looking to him and Sitaram, the accused fled away, towards west. They sent message to the house of Sanju Koshtha through Chhota Kachhi, who was grazing his goats there. On information, his uncle Ballu and Chhota Munna came there along with vehicle of Lakhan Baba up to other side of Sukhana Nala. They carried Sanju Koshtha on a cot up the vehicle. Both the injured were taken via Katra. The police station Kalinjar situated at a distance of 3 kilometer from the place of incident. Chhota Kachhi took about one hour, in giving information to the house of Sanju Koshtha and coming back on the spot. They took 15 minutes in carrying Sanju Koshtha up to the vehicle. They did not give any information about the incident at the house of Sanjay Kacher. They could reach up to Achhroad crossing on Banda Satna road at about 7:45 PM that Sanju Koshtha died. Then they returned to the house of Sanju Koshtha on the same Bolero vehicle. They dropped Sanjay Kacher at his house. He could not say that who had taken Sanjay Kacher and at what time for his treatment. They stayed for one hour at the house of Sanju Koshtha, thereafter proceeded for police station for giving information. When the family members were weeping, Rajesh Trivedi Advocate had come, who

¶43

¶44

had scribed the FIR. Thereafter, he along with Ballu, father of Sanju Koshtha, Sitaram and three-four persons more went to the police station for lodging FIR. After about 10-15 minutes of their reaching, FIR was lodged. Thereafter, the police came to the village and after about one hour conducted Inquest and dispatched the dead body for postmortem in night. He denied that the Inquest was conducted on the next day i.e. 28.08.2005. The police recorded his statements on 27.08.2005 and 28.08.2005. Sanjay Kacher had gone to the dera of Sanju Koshtha for taking milk at about 8:00 AM, due to janmashtami occasion and returned at 5:00 PM, along with milk. Partition between his family and family of the father of Sanju Koshtha had taken place 7-8 years ago. He has denied that Sanju Koshtha and Sanjay Kacher were assaulted by unknown miscreants in night and he had not seen the occurrence and due to village party fraction, he had falsely implicated the accused.

¶45

Sanjay Kacher (PW-2) has stated that he knew Ramesh Kachhi, who was residing by the side of his house. I used to play T.V., C.D. in my house. Ramesh and others used to object it. Sanju Koshtha was my friend. He always used to come my house for viewing T.V., C.D. The incident occurred on 27.08.2005 at 5:30 PM. That day was the day of Janmashtami festival. On that day, he and Sanju Koshtha went to his dera at about 8:00 AM for taking milk. They stayed at dera in the day and were returning to their house at Katra from dera, at about 5:30 PM. As soon as, they reached near the field of Chhote Yadav at Sukhana Nala, Ramesh Kachhi and his friend Ramdeen @ Tanta met them. Ramesh was armed with danda, in which iron ring was fixed in bottom Ramdeen was armed with barchhi. They began to assault them, in which Sanju Koshtha received grievous injuries. At that time Matadeen and Sitaram had come. Looking to them, the accused fled away. They were being taken to Banda for treatment but Sanju Koshtha died in the way, due to the injuries received by him in that incident. My treatment was done at Banda and thereafter at Ujjain.

¶46

In cross-examination, he has stated that his father was doing service at Ujjain, since before his birth. He was Conductor in M.P. Roadways. His family was residing at Dharampur (M.P.). He has passed High School in 2004, from Ujjain. In the month of June, he used to come to his house at Katra,

¶47

¶48

Kalinjar. When he used to come to Katra, during vacation, he used to meet with Sanju Koshtha. On the date of the incident, he was on fast as such he had gone to the dera of Sanju Koshtha for taking milk at 8:00 AM. From about one month prior to the date of incident, he was living at Katra Kalinjar. In the day hour, he and Sanju Koshtha were playing cricket match there. Apart from them, there were five-six other persons, but he could not tell their names. In his house at Katra, he and his mother Vimla Devi were residing. He could not say that the accused Ramesh Kachhi had made any complaint for playing T.V., C.D. to his mother or to any one else. When he had come during vacation, he had played T.V., C.D. for his pleasure. Investigating Officer did not see his T.V. C.D. at his house nor took it in his possession and prepared its recovery memo. Dera of Sanju Koshtha was shown in the site-plan, which was also known as Bhatihan dera. In this dera Sitaram, the brother of Sanju Koshtha was residing along with his family. They used to cook food also at this dera. There was no other dera near the place of occurrence. He and Sanju Koshtha went to this dera together in morning at about 8:00 AM and reached there at about 9:00 AM. Matadeen remained at his field which was at a distance of about half kilometer from this dera and did not come to this dera. Sanju Koshtha was not on fast but he did not see as to where he had eaten food. There was electricity connection in his house, in the name of his mother at the time of incident. He had a steel container of two liter size for taking milk. While returning at 5:00 PM, this container was in his hand and Sanju Koshtha had a radio in his hand. In the way of dera of Sanju Koshtha from Sukhana Nala, the land was uneven, and 5 to 10 feet deep pit in both the sides. Bushes and trees were also standing in both the sides. Where Sanju Koshtha was assaulted there was 50-60 feet deep pit. When they came at a distance of about half kilometer from the dera of Sanju Koshtha, the accused jumped down on the rasta, from mound of the land and began to assault. He had seen the accused at that place. He could not say that the field of Chhota Yadav situated at what side of rasta. He has informed Investigating Officer that fight had taken place in the field of Chhota Yadav. First of all, Ramesh told that why he had not abided his objection in playing T.V., C.D. and gave him one lathi blow. Then Sanju, who was at a distance of two paces from him, rushed for

¶49

¶50

saving him, then Ramesh and Ramdeen began to assault both of them. Ramesh assaulted Sanju Koshtha and Ramdeen assaulted him. Both of them were assaulting from lathi. In the lathi of Ramesh iron ring was fixed. In the lathi of Ramdeen barchhi was affixed. Ramesh was also armed with knife and one empty bottle. Ramesh assaulted on his head, due to that injury, he had become unconscious. Thereafter, he could not know that which of the accused caused injury to whom. He was fallen down at a distance of about 2-4 paces from the place, where fight had taken place. Till his consciousness, apart from him and Sanju, no other person had come there nor any body intervened in the matter. He could not say that after assaulting the accused fled away in which direction as he had become unconscious. He regained consciousness at about 10:00 PM at Government Hospital Banda. He did not know that who had taken him and Sanju from the place of occurrence and from which vehicle. Brij Bihari son of his mother's sister had taken to him Government Hospital Banda. He did not know that prior to his admission at Government Hospital Banda, he was taken to Government Hospital Naraini. He did not make any query in this respect from Brij Bihari. At the time of fight, his steel container filled with milk was fallen down at that place. When he had come to Government Hospital Banda, for treatment, no Constable of Kalinjar police station had come with him. After stopping cricket at about 2:00 PM, Sanju Koshtha remained at the house of his brother Sitaram, where he had eaten food along with him and sister-in-law.

¶51

Sitaram (PW-3) has stated that the field of Ramesh Kachhi situated by the side of his field. He had enmity with Ramesh Kachhi. On the date of incident, which was day of Krishna Janmashtami, he and Matadeen were returning to their house from the field. My brother Sanju and Sanjay were friends. When his brother Sanju and Sanjay Kacher reached near the field of Chhote Yadav then Ramesh Kachhi and Ramdeen @ Tanta were coming from the side of Sukhana Nala. As soon as they reached near Sanjay Kacher, Ramesh assaulted Sanjay Kacher on his head by lathi. At that time his brother Sanju rushed to save him, then both the accused Ramesh and Ramdeen @ Tanta began to assault them with lathi and barchhi, with an intention to kill them. Due to which his brother Sanju and Sanjay Kacher received grievous

¶52

¶53

injuries. Sanju, his brother fell down on the spot and Sanjay Kacher fell down at some distance, after receiving injuries. Looking to them, Ramesh Kachhi and Ramdeen @ Tanta fled away. He and Matadeen took both the injured on the Bolero vehicle of Lakhan Baba Patel, for their treatment, to save them but his brother Sanju died in the way, due to the injuries received by him in that incident, at Kalinjar crossing. They handed over Sanjay Kacher to his mother for taking him to the hospital and they returned to his house along with dead body of Sanju. Thereafter, Matadeen gave information of this incident to the police station. Sanjay Kacher used to play T.V., C.D. at his house, which was being objected by Ramesh Kachhi and who also used to tell that not to call the boys at his house. Sanjay Kacher and his brother Sanju were friends. Due to that enmity, Ramesh Kachhi and Ramdeen @ Tanta had attacked upon them with barchhi and lathi, with an intention to kill them, due to which his brother had died and Sanjy Kacher regained after treatment. He knew Ramesh Kachhi and Ramdeen @ Tanta, who were residents of his village, since before the incident and they were also present in the Court in custody. He and Matadeen had seen the incident.

¶54

In cross-examination, he has stated that Matadeen son of Mahdeo was his real uncle's son. On the date of incident, he reached dera at 9:00 AM. After 2-4 hours of his reaching, Sanju Koshtha and Sanjay Kacher reached at his dera. When they reached at his dera, he was in the field, which was near the dera. The field of Matadeen situated at a distance of about one kilometer from his dera. At the dera, he had bullocks and buffalo, which were being looked after by his brother Munna. He never went to the house of Sanjay Kacher for viewing T.V., C.D. He had not seen that Sanjay Kacher, while playing T.V., C.D., he had only heard in this respect. Up to the date of incident, he could not know the reason of the incident. Subsequently he came to know that Sanjay Kacher, used to play T.V., C.D. in his house. Investigating Officer has rightly recorded in his statements that when Sanjay Kacher and Sanju Koshtha reached to his dera, they remained playing cricket for whole day. At about 4:00 PM, he had milked his buffalo, then Sanjay Kacher had taken two liter milk from him. Thereafter, Sanjay Kacher and Sanju Koshtha returned to the house at Katra. At that time Matadeen had come at his dera. Thereafter, he and

¶55

¶56

Matadeen also proceeded immediately. The place of occurrence was at a distance of half kilometer from dera. Sukhana Nala was at a distance of half kilometer from his dera. The incident took place at the field of Chhote Yadav, which situated in south of his dera. The land was uneven on the both side of the way which goes towards his dera from Sukhana Nala. The way itself was in the shape of gutter. On both the sides forest bushes and trees situated. Field of Basant Kushwaha situated there, where there was a pit of about 25-30 feet deep. At the time of incident, he was at a distance of 40-50 paces from Sanjay Kacher. As soon as the accused reached, they started to assault Sanjay Kacher from lathi, barchhi. Sanju Koshtha tried to save Sanjay Kacher, then the accused assaulted Sanjay Koshtha from lathi, barchhi. After assaulting, the accused fled away towards north. Matadeen went to village Katra for taking jeep from the place of occurrence and after about half an hour came with jeep of Lakhan Baba. Matadeen lifted Sanjay Kacher and took him up to jeep. He, Ram Swarup, Chhote Kushwaha lifted and took Sanju Koshtha up to jeep, which was on the other side of Sukhana Nala, at a distance of half kilometer. By the time of boarding the injured in jeep, it had become midnight. Sanju Koshtha died at a distance of about 2-4 lathi from Kalinjar bus stand. After death of Sanju Koshtha, they came back to his house, dropping Sanjay Kacher at his house. When the dead body of Sanju Koshtha reached at the house then various people of the village collected there. Thereafter, Matadeen went to the police station Kalinjar. It is incorrect to say that he had not seen the incident of fight, which took place after 9:00 PM. It is incorrect to say that the field of Ramesh Kachhi situates near his dera and his cattle used to damage his crops and due to that enmity, he had falsely implicated the accused.

¶57

We have considered the arguments of the counsel for the parties and examined the record. In this case, Matadeen (PW-1) was a cousin, Sajay Kacher (PW-2) was a friend and Sitaram (PW-3) was elder brother of the deceased. They are highly interested witnesses. It has been argued by the counsel for the appellants that Sanju Koshtha (the deceased) and Sanjay Kacher (the injured) were assaulted by unknown assailants during dark hours and they were falsely implicated due to village enmity. Constitution Bench of Supreme Court in State of Bihar v. Basawan Singh, AIR 1958 SC

¶58

¶59

500, has held that it is thus clear there is no any universal or inflexible Rule of rejection even with regard to the evidence of witnesses who may be called partisan or interested witnesses. It is plain and obvious that no such Rule can be laid down; for the value of the testimony of a witness depends on diverse factors, such as, the character of the witness, to what extent and in what manner he is interested, how he has fared in cross-examination etc. There is no doubt that the testimony of partisan or interested witnesses must be scrutinised with care and there may be cases, where the court will as a matter of prudence look for independent corroboration. It is wrong, however, to deduce from that decision any universal or inflexible Rule that the evidence of the witnesses of the raiding party must be discarded, unless independent corroboration is available.

¶60

Same view has been taken in Jarnail Singh Vs. State of Haryana, 1993 SCC (Cri) 869 and State of U.P. Vs. Kishan Chand 2004 SCC (Cri) 2013.

¶61

The motive of the incident as given was that Sanjay Kacher (PW-2) used to play T.V., C.D. in his house, through out the day and night. Ramesh Kachhi and his family members used to object it as in the house of Ramesh Kachhi, his sisters were residing. Sanju Koshtha (the deceased), being his friend used to go to the house of Sanjay Kacher for viewing T.V., C.D. Sanjay Kacher (PW-2) in his cross-examination has stated that he could not say that the accused Ramesh Kachhi had made any complaint for playing T.V., C.D. to his mother or to any one else. When he had come during vacation, he had played T.V., C.D. for his pleasure. Investigating Officer did not see his T.V. C.D. at his house nor took it in his possession and prepared its recovery memo. If Ramesh Kachhi had any objection in playing T.V., C.D. by Sanjay Kacher, then it was natural for Ramesh Kachhi to make a complaint in this respect to his mother, who alone was residing at the house along with Sanjay Kacher. Sitaram (PW-3), who is real brother of the deceased has stated that he had never gone to the house of Sanjay Kacher for viewing T.V., C.D. He had not seen that Sanjay Kacher, while playing T.V., C.D., he had only heard in this respect. Up the date of incident, he could not know the reason of the incident. Although SI Prem Chand (PW-8) in his cross-examination has stated

¶62

¶63

that he had verified T.V., C.D. at the house of Sanjay Kacher. But nothing in this respect was mentioned in the Case Diary nor any recovery memo has been prepared in this respect. The motive as set up by the prosecution has not been proved beyond reasonable doubt.

¶64

Supreme Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, has held that proof of motive satisfies the judicial mind about the likelihood of the authorship but its absence only demands deeper forensic search and cannot undo the effect of evidence otherwise sufficient. Motives of men are often subjective, submerged and unamenable to easy proof that Courts have to go without clear evidence thereon if other clinching evidence exists. In the case on hand the enmity with Sita Ram being active and admitted, the pique against Hariba, his loyal dependent, is understandable. In Vijay Shankar v. State of Haryana, (2015) 12 SCC 644, has held that in each and every case, it was not incumbent on the prosecution to prove the motive for the crime. Often, motive is indicated to heighten the probability of the offence that the accused was impelled by that motive to commit the offence. Proof of motive only adds to the weight and value of evidence adduced by the prosecution. If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence. But even if the prosecution has not been able to prove its case on motive that will not be a ground to throw the prosecution case nor does it corrode the credibility of the prosecution case. Absence of proof of motive only demands careful scrutiny of evidence adduced by the prosecution. In the present case, absence of convincing evidence as to motive makes the court to be circumspect in the matter of assessment of evidence and this aspect was not kept in view by the High Court and the trial court. In Abdul Waheed v. State of U.P., (2016) 1 SCC 583, has held that proof of motive of the accused towards the deceased heightens the possibility of the crime. Proof of motive adds weight and value to the evidence of the eyewitnesses.

¶65

It is alleged that on the date of incident, there was janmashthami. Sanjay Kacher (PW-2) was having fast as such he had gone to the dera of Sanju Koshtha (the deceased) to take milk. Sanjay Kacher (PW-2) has stated that date of incident was the day of Janmashtami festival. On that day, he and

¶66

¶67

Sanju Koshtha went to his dera at about 8:00 AM for taking milk. They stayed at dera in the day and were returning to their house at Katra from dera, at about 5:30 PM. In cross-examination, he stated that they reached at the dera at about 9:00 AM. In the day hour, he and Sanju Koshtha were playing cricket match there. He had a steel container of two liter size for taking milk. While returning at 5:00 PM, this container was in his hand and Sanju Koshtha had a radio in his hand. SI Prem Chand (PW-8) in his cross-examination has stated that he had not found steel container and radio on the spot at the time of spot inspection.

¶68

It appears unnatural that a man, who had fast, will go to the dera of the deceased at 9:00 AM although his purpose was to take milk for use in night. During his fast, he would play cricket match. The purpose of Sanjay Kacher for going to the dera of the deceased was to take milk but his milk container was not found by Investigating Officer on the spot. The origin and the manner of the incident, as alleged, is not proved beyond reasonable doubt.

¶69

Sanjay Kacher (PW-2) has stated that Ramesh gave him one lathi blow. Thereafter Ramesh assaulted Sanju Koshtha and Ramdeen assaulted him. In the lathi of Ramesh iron ring was affixed and in the lathi of Ramdeen barchhi was affixed. But on the body of Sanjay Kacher (PW-2) simple injuries were found. His oral testimony was not corroborated with medical evidence. From a close scrutiny of the testimony of Sanjay Kacher (PW-2), the mode and manner of incident asserted by him is not reliable, his injuries are not supported by X-ray and supplementary reports, hence nature of injury cannot be ascertained.

¶70

The incident is alleged to have taken place on 27.08.2005 at 5:30 PM. FIR was lodged on 27.08.2005 at 21:30 hours. In check FIR, distance of police station from the place of occurrence has been mentioned as 6 kilometer. SI Prem Chand (PW-8) in his cross-examination, has stated that they reached at the house of Sanju Koshtha on 27.08.2005 at 6:15 PM. Matadeen (PW-1) in his cross-examination has stated that they had sent message to the house of Sanju Koshtha through Chhota Kachhi, who was grazing his goats there. On information, his uncle Ballu and Chhota Munna came there along with vehicle

¶71

¶72

of Lakhan Baba up to other side of Sukhana Nala. They carried Sanju Koshtha on a cot up the vehicle. Both the injured were taken via Katra on that vehicle. The police station Kalinjar situated at a distance of 3 kilometer from the place of incident. Chhota Kachhi took about one hour, in giving information to the house of Sanju Koshtha and coming back on the spot. They took 15 minutes in carrying Sanju Koshtha up to the vehicle. They could reach up to Achhroad crossing on Banda to Satna road at about 7:45 PM that Sanju Koshtha died. Sitaram (PW-3) has stated that Matadeen went to village Katra for taking jeep from the place of occurrence and after about half an hour came with jeep of Lakhan Baba. Matadeen lifted Sanjay Kacher and took him up to jeep. He, Ram Swarup, Chhote Kushwaha lifted and took Sanju Koshtha up to jeep, which was on the other side of Sukhana Nala, at a distance of half kilometer. By the time of boarding the injured in jeep, it had become midnight. Sanju Koshtha died at a distance of about 2-4 lathi from Kalinjar bus stand. After death of Sanju Koshtha, they came back to his house, dropping Sanjay Kacher at his house. Uma Shankar Dwivedi (PW-7) has stated that Sanjay Kacher was examined at CHC Naraini on 27.08.2005 at 8:30 PM. Dr. S.K. Baswani (PW4) stated that Sanjay Kacher was examined at District Hospital, Banda on 27.08.2005 at 10:00 PM, where he was brought by Brij Bihari, his cousin.

¶73

From the statements of these witnesses, time of incident appears to be doubtful. The police came to the house of the deceased at 6:15 PM. Sitaram (PW-3), real brother of the deceased, has stated that by the time they boarded the injured in the Bolero vehicle at Sukhana Nala, it had become midnight. Although the police has reached at the house of the deceased but neither any chitthi majrubi was prepared nor any police personnel was sent along with Sanjay Kacher for his medical examination. It appears that FIR was lodged with due deliberation with the police and was ante-timed.

¶74

In the site-plan, the place of incident was shown at the place 'A' on the way of the dera of the deceased to Sukhana Nala. The deceased Sanju Koshtha was shown to have fallen down at the place 'B', which is 15 paces west from the place 'A'. The injured Sanjay Kacher was shown as fallen down at the place 'D', which is 50 paces in south of the place 'A'. Sanjay Kacher (PW-2), in his cross-examination, has stated When they had come at a distance of

¶75

¶76

about half kilometer from the dera of Sanju Koshtha, the accused jumped down on the rasta, from mound of the land and began to assault. First of all, Ramesh told that why he had not abided his objection in playing T.V., C.D. and gave him one lathi blow. Then Sanju, who was at a distance of two paces from him, rushed for saving him, then Ramesh and Ramdeen began to assault both of them. Ramesh assaulted Sanju Koshtha and Ramdeen assaulted him. Both of them were assaulting from lathi. In the lathi of Ramesh iron ring was fixed. In the lathi of Ramdeen barchhi was affixed. Ramesh was also armed with knife and one empty bottle. Ramesh assaulted on his head, due to that injury, he had become unconscious. He was fallen down at a distance of about 2-4 paces from the place, where fight had taken place.

¶77

Sanjay Kacher (PW-2) has stated that he was fallen down at a distance of about 2-4 paces from the place, where fight had taken place, as he had become unconscious. The place of occurrence is not proved.

¶78

The injuries of Sanjay Kacher (PW-2) were of muscle deep as mentioned in his injury report (Ex-Ka-4). There is no X ray report or Supplementary Injury Report to show that any of his injuries were grievous. Sanjay Kacher (PW-2) was the main target for the accused. He was allegedly assaulted from a lathi, in which iron ring was fixed at his bottom. If a person is assaulted by lathi containing iron ring then in all probability, fracture of the bones was possible. Sanju Koshtha (the deceased) was allegedly assaulted by Ramdeen @ Tanta, from his lathi in which barchhi was affixed. But on his body, no piercing or stab wound was found. Thus the ocular evidence is not corroborated with medical evidence.

¶79

Matadeen (PW-1) in his cross-examination has stated that when fight was going on, he turned from his field towards the Matihan, the dera of his uncle, where Sitaram was present at that time. Sanjay Kacher (PW-2) has stated that when they came at a distance of about half kilometer from dera of Sanju Koshtha, the accused jumped down on the rasta, from mound of the land and began to assault them. It is admitted to all the witnesses that the land was uneven and forest bushes and tree were standing on both the sides, while rasta was zigzag. In such circumstances, when the witness Matadeen (PW-1)

¶80

¶81

and Sitaram (PW-3) were at a distance of half kilometer from the place of occurrence, it was not possible for them to see the incident.

¶82

In view of the aforesaid discussions, we find that on strict scrutiny of the statement of the interested witnesses, the charges are not proved beyond reasonable doubts. In the result, the appeal succeeds and is allowed. The conviction and sentence of the appellants passed by Additional Sessions Judge/Fast Track, Court No. 2, Banda, dated 05.02.2007/06.02.2007, in S.T. No. 9 of 2006, State vs. Ramesh Kachhi and another, [arising out of Case Crime No. 113 of 2005, under Section 304/34 and Section 308/34 of Indian Penal Code, 1860 (hereinafter referred to as the IPC), police station Kalinjar, district Banda], is hereby set aside. The appellants are acquitted from the charges. The appellants shall be released from jail forthwith.

¶83

The appellants shall furnish bonds in terms of Section 437-A Cr.P.C. within one month of their release.

¶84

Registry is directed to transmit the original record of the Trial Court and the judgment for immediate compliance to the Court concerned. The Trial Court is obliged to communicate compliance report to this Court forthwith.

¶85

Sri Syed Imran Ibrahim, Advocate High Court, who has argued the appeal as an amicus curiae on behalf of Ramdeen @ Tanta (appellant-2) shall be paid Rs. 10000/- (Rs. Ten thousand) towards his fee.

¶86

Order Date :- 22.8.2019 Rahul Dwivedi/-

¶87

[Umesh Kumar, J.][ Ram Surat Ram (Maurya) ,J.]

Ramesh Kachhi and Another v. State of U.P.

Case brief

What is this about?

What did the court decide?

Ramesh Kachhi and Another v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Bijender Singh and Others Vs State of U.P.

Kamre Alam @ Kamaryab Vs State of U.P.

Manoj Vs State of U.P.

Kishori Lal and Others Vs State of U.P.

Shyam Sunder @ Samundar Vs State of U.P.

Maiko Vs State of U.P.