Allahabad High Court
Raj Kumar And Others vs State Of U.P. on 21 December, 2022
Bench: Ramesh Sinha, Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
"A. F. R."
Reserved on: 14.11.2022
Delivered on: 21.12.2022
Court No. - 1
Case :- CRIMINAL APPEAL No. - 657 of 1982
Appellant :- Raj Kumar And Others
Respondent :- State of U.P.
Counsel for Appellant :- Sanjai Srivastava,R.N.S.Chauhan
Counsel for Respondent :- Govt. Advocate
Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Renu Agarwal,J.
(Delivered by Hon'ble Mrs. Renu Agarwal,J.)
1. The present Criminal Appeal has been filed under Section 374(2) Cr.P.C. against the judgment and order passed by IIIrd Additional Sessions Judge, Sitapur, on 28.08.1982, convicting the appellants Raj Kumar, Jagannath and Mullu in Sessions Trial No.100 of 1980 and sentencing them to rigorous imprisonment for life and fine of Rs.1000/- each under section 149 read with section 302 IPC, rigorous imprisonment of six months in default of payment of fine and one year rigorous imprisonment under section 148 IPC.
2. Wrapping the facts in brief, complainant alongwith his brother Krishna Behari @ Krishna (deceased) was going for bandage to Ganj Bazar, as deceased had sustained sprain in his foot. When they reached near the shop of Dr. Nisar at about 12.30 p.m. the accused Rajkumar @ Babu son of Bhabhuti armed with Ballam, his brother Jagannath armed with Kanta, Mullu son of Jagannath armed with Banka and Dinesh son of Kameshwar armed with gun, dragged the deceased and reached in front of liquor shop, where Kameshwar Pradhan son of Raghuveer armed with Banka, his brother Ram Autar having Lathi, Kaushal Kishore @ Karna son of Ram Autar having Banka, Ram Lakhan son of Shriram armed with gun and his brother Kanshiram having Katta(pistol) and Sriram son of Jagnu armed with Gandasa were standing. The accused Kameshwar Pradhan sought and abated to kill the deceased by severing the head of the deceased. Thereafter all the accused assaulted collectively on deceased with the arms in their hands. The complainant raised alarm then Om Prakash son of Ram Gopal, Virendra @ Babu son of Jai Daya, Chandrika son of Matadeen, Premsagar son of Channu Lal, Darbari Lal son of Asharfi Lal, Mangu Lal son of Rameshwar reached and witnessed the incident. They raised alarm, then the accused aimed the gun at them and threatened them to kill if they come forward, therefore, the complainant could not save the deceased. The accused severed the head of his brother (deceased). The accused Kameshwar Pradhan picked up the severed head and remaining accused dragged the body of deceased by his legs towards the field via road and grove of Vednath Taula. They followed the accused to some distance. Many villagers gathered there and the accused ablazed the dead body of the deceased. Elder brother of the complainant Pyare Lal and the ladies of his house and other villagers arrived and challenged the accused at the spot, then the accused took to their heels towards the field of sugar cane. The complainant Radhey Shyam and others extinguished the fire and took out the body and the head of deceased Krishna Behari @ Krishna from fire and brought the dead body of deceased to his home. It is also stated in the FIR that the complainant and the deceased were named in the murder of grand son Kameshwar Pradhan and the son of his brother-in-law (Sadhu) namely Subhkaran and they had previous enmity on this account with the accused.
3. On the basis of written report (Ex. Ka-1), a case of murder was registered on G.D. No.20(Ex. Ka-2) on 05.02.1979 at 14.00 p.m. The investigation was conducted by S.I. Shesh Ram Singh. He reached on the spot at 3.15 p.m. conducted inquest proceedings and prepared inquest report (Ex. Ka-6). Sealed the dead body and handed it over to Constable Ram Prasad at 4.15 p.m. He prepared Challan Lash (Ex. Ka-7), Photo Lash (Ex. Ka-8), Sample of the seal (Ex. Ka-9) and letter to the C.M.O. (Ex. Ka-10), inquest report and the copy of the FIR (Ex. Ka-11) and handed over these documents to the constable. The special report of the occurrence was forwarded from the police station at 2.50 p.m. through constable Rameshwar Prasad vide G.D. No.21(Ex. Ka-23). The investigating officer, S.I. Shesh Ram Singh recorded the statement of witnesses at police station and sent other police force in the search of the accused persons and he himself proceeded to inspect the place of occurrence. Prepared site plan (Ex. Ka-16) on the pointing out of complainant. Collected ash of the leaves from the field of Ram Sagar, sealed it and prepared recovery memo (Ex. Ka-12), prepared the recovery memo of unburnt leaves (Ex. Ka-14), collected blood stained and plain earth from the place of occurrence, sealed and prepared recovery memo (Ex. Ka-13), collected blood stained and semi burnt clothes of deceased, sealed the same and prepared recovery memo (Ex. Ka-15) and then recorded the statements of Om Prakash, Darbari Lal, Satrohan Lal, Pyare Lal, Surajdin, Chandrika Mangu Lal and Virendra. The investigating officer also recorded the statements of Premsagar and Pyare Lal. However, the statements of Nisar and other shop keeper could not be recorded at that time due to their unavailability. The statements of Kamla Devi, Smt. Rajrani, Swami Dayal, Ram Sahai, Ved Nath Taula, Nisar Ahmad, Mewa Lal, Ram Sagar and Chedu were also recorded later on during the investigation. After recording the statements of witnesses and collecting sufficient evidence against the accused persons, adopting the result of postmortem report, the charge sheet has been submitted by the investigating officer in the court.
4. Trial court framed the charges against the accused under sections 147. 148, 302, 201, IPC against all the 10 accused persons. The accused abjured from the charges and claimed to be tried.
5. The prosecution examined 10 witnesses in support of prosecution case. P.W.-1, Radhey Shyam, P.W.-4 Premsagar and P.W.-5, Virendra, are witnesses of facts. P.W.-3 Dr. R. V. Singh, P.W.-2 Head Constable Bansi Lal, who registered the case, P.W.-6 Ram Autar Singh, A.S.I., who received the case property in the Malkhana and had issued it for being sent to chemical examiner, P.W.-7 Constable Ram Prakash, who carried the dead-body to the mortuary, P.W.-8 Constable Ayodhya Prasad, who had deposited the case property in the Sadar Malkhana, P.W.-9 Sri V. K. Tandon, Clerk of Sadar Hospital, who sent the case property for the Chemical Examination. P.W.-10 Shesh Ram Singh, who investigated the case. After conclusion of the prosecution witlessness the statement of accused were recorded under section 313 Cr.P.C. Only one witness i.e. D.W.-1 constable Harishankar Mishra was adduced in defence evidence. During the trial the accused Dinesh son of Kameshwar had expired and the case was abated against him.
6. Having perused the evidence on record and hearing the submissions advanced by the State Counsel and the counsel for the accused, the trial court reached to the conclusion that complainant Radhey Shyam who was with the deceased could not commit a mistake in identification of accused, as they were armed with Gun, Banka, Kanta and Ballam. These weapons can account for all the injuries found at the person of deceased. As regard to the assailants the evidence is consistent that accused were in front of liquor shop and had participated in the assault. It was also concluded that even though there were reliable evidence that there were number of assailants who were loaded with gun and involved in firing. There is reasonable doubt that those assailants included the other six also besides Ram Kumar, Jagannath, Mullu and Dinesh, therefore, learned trial court acquitted six of the assailants Ram Autar, Kaushal Kishor, Ram Lakhan, Kashiram, Kameshwar and Shri Ram, of the charges levelled against them and convicted to the accused Raj Kumar, Mullu and Jagannath of the charges under sections 149 read with section 302 IPC and section 148 IPC. Accused Dinesh expired during the course of trial & case was abated against accused Dinesh. Aggrieved with the judgment and order dated 27.08.1982 passed by learned trial court, the present appeal is filed.
7. We have heard the submissions of Sri R. N. S. Chauhan, learned counsel for the appellants and Ms. Smiti Sahay, learned Additional Government Advocate for the State and perused the material brought on record.
8. Learned counsel for the appellants argued that the statements of witnesses are contradictory inter se and medical evidence do not corroborate the oral evidence. The appellants are innocent and falsely implicated in the case. The sentence awarded to them is too severe and im-proportionate to the crime. Therefore it is prayed to allow the appeal and acquit the appellants.
9. On the other hand, contrary to it the learned AGA for the State-respondent vehemently opposed and argued that this is case of very brutal murder and all the accused armed with Gun, Banka, Kanta and Ballam assaulted the deceased, as they have a suspicion that the deceased murdered the grand son of village pradhan Kameshwar. The head of deceased was severed from his body and holding the severed head in his hand, accused Kameshwar wandered in whole of the village along road and grove and the remaining part of dead body was dragged with legs by the other assailants. Therefore, the judgment passed by the learned trial court is in consonance with the evidence on record. Therefore, it is prayed to reject the appeal filed by the appellants.
10. To recapitulate the evidence produced by the prosecution, P.W.-1, the complainant Radhey Shyam, witnesses P.W.-4 Premsagar and P.W.-5 Virendra have stated that the deceased was going to the shop of Dr. Nisar Ahmad for bandage at about 12.30 p.m., when the complainant alongwith his brother Krishna Bihari (now deceased) reached in front of the shop of Dr. Nisar Ahmad, the accused Raj Kumar, Jagannath, Mullu and Dinesh reached. The accused Raj Kumar with Ballam, Jagannath with Kanta, Mullu with Banka and Dinesh with gun, assaulted collectively upon the Krishna Bihari (deceased), severed his head from the body, the head and body was put on fire and set-ablazed, it is to be examined as to how far the prosecution case is corroborated by medical evidences. P.W.-3 Dr. R. B. Singh conducted autopsy on the dead-body of the deceased and found following injuries on his person:-
"1. Incised wound 5 cm. x 1.5 cm. x bone deep on the left side of top of head, 5.5 cm. above the left eye brow.
2. Fire arm wound of entry 4 cm. x 3 cm. x bone deep on the left eye, margins were ragged.
3. Fire arm wound multiple in number in an area of 5 cm. x 5 cm. around injury no.2, each measuring 0.2 cm. x 0.2 cm. x skin deep.
4. Lacerated wound 3.5 cm. x 1.5 cm. x bone on the right side of the back of the head, 9.5c.m. behind the right ear.
5. Incised wound 10 cm. x 1.5 cm. x bone deep (cut) starting behind the right ear from the head.
6. Incised wound 10 cm. X 1.5 cm. x bone deep (cut) on the back side of head and 0.5 below injury no.5.
7. Incised wound (with four blows) 19 cm. x 14 cm. x thickness, starting from occipital bone to lower border of lower jaw, head severed from the neck of the the level of second, cervical vertebra (body cut) wound smeared in dust and earth.
8. Incised wound 18 cm. x 13 cm. joint thickness of neck, body of second cervical vertebra cut.
9. Incised wound 9 cm. x 2 cm. x bone deed in front of neck 5 cm. below injury no.8.
10. Incised wound 12 cm. x 2 cm. x muscle deep, the left side of neck, 1 cm. below injury no.1.
11. 5 incised wounds all muscle deep in an area of 13 cm. x 9 cm. on the back of neck, all place one blow the other, largest one was 10 cm. x 1.5 c.m. x muscle deep and the smallest was 8.3 c.m. x 1.5 c.m. x muscle deep.
12. Incised wound on the top of right shoulder 5 cm. x 2 cm. x muscle deep.
13. Stab wound 1.5 cm. x 1 cm. x cavity deep in front of abdomen 5 cm. above amblicus.
14. Punctured wound 1 cm. x 1 cm. x bone in the mid-line of back, 1 cm. above the lumbo sacrel joint.
15. Multiple abrasion in front of chest and abdomen in an area of 28 cm. x 23 cm.
He further stated that on internal examination he found the following facts:-
Occipital, right temporal bones with linear fracture and frontal bone was fracture into pieces. The brain membrance was lacerated, brain membrance in the frontal lobe was lacerated, 7 pellets were plunged in the brain and were recovered, right middle and left anterior cranial foesa were fractured. Second vertebra of neck was cut. The spinal cord was wholly cut at the level of second vertebra of neck. The larynx, trachea, and the neck vessels were cut. The abdomen peritonium etc. were punctured, mesentery was lacerated and there was 1 pound blood in the cavity. There was 80 ounce food in the stomach and the stomach was perforated near the pyloric end. The small intestine was full. The large intestine and the rectum were empty. The doctor was of the opinion that the death was the result of shock and haemorrhage due to the above mentioned injuries."
According to the doctor, after death there were burns on the head and the body, pubic hair, eye brows and scalp hair etc. and head was blackened by smoke. The head was severed from the body at the level of second neck vertebra.
11. P.W.-2 Constable Banshilal appeared and deposed in the court and proved G.D. No.21, time 14.50 p.m. dated 05.02.1979 (Ex. Ka-3). P.W.-6 Assistant Sub-Inspector Ram Autar Singh appeared in the court and has stated that the case property of the deceased was submitted by Constable Ayodhya Prasad to the Malkhana and it was send for chemical examination by the same constable Ayodhya Prasad. The witness proved the entry of the case in register at Sl. No.402. P.W.-7 Constable No.494 Ram Prasad deposed in court that he received the dead body of the deceased Krishna in sealed condition and submitted it alongwith requisite papers to the Police Line Sitapur, which was entered in G.D.No.22 at 10.30 a.m. on 06.02.1979. The dead body remained in sealed condition during the period it was in his custody. P.W.-8 Ayodhya Prasad deposed in the court that he has submitted the case property in Sadar Malkhana and re-submitted it in C.M.O. Office Sitapur and the case property remained in sealed condition during this period. P.W.-9 V.K. Tandon, the clerk in District Hospital Sitapurt appeared and deposed in the court that he received the case property in sealed condition from C.P. No.366 Ayodhya Prasad and send the same for chemical examination to Agra through railway department. P.W.-10, Sub-inspector Shri Shesh Ram Singh appeared in court and proved the FIR Ex. Ka-1, inquest report (Ex. Ka-6), Challan Lash (Ex. Ka-7), Photo Lash (Ex. Ka-8), Sample of the seal (Ex. Ka-9) and letter to the C.M.O.(Ex. Ka-10), copy of chek report (Ex. Ka-11), Ex. Ka-6 to Ka-11 and handed over these documents. Witness proved recovery memo of cloths Ex. Ka-12 and half burnt leaves and clothes of the deceased Ex.Ka-14. Recovery memo of half burnt pieces of Tahmad, shirt, blood stain vest of deceased, Ex. Ka-15 and material exhibit as well. P.W.-10 proved site plain Ex. Ka-16 and also proved the charge sheet Ex. Ka-17 as a secondary evidence. It transpires from the FIR that incident took place in broad day light at 12.30 p.m. on 05.02.1979 and the report was lodged orally at 14.00 p.m. on the same day.
12. The distance between the place of occurrence and the police station is 5 Km., therefore, there is no delay in lodging the FIR. From the contents of FIR it is also clear that accused Rajkumar, Jagannath, Mullu and Dinesh are named in the FIR itself. The role assigned to Kameshwar Pradhan, Ram Auta, Kaushal Kishor, Ram Lakhan, Shri Ram and Kashiram is of exhortation.
13. It argued on behalf of appellant that the time of death is not ascertained by the evidence of prosecution and the time of death could vary by six hours. In this contest it is pertinent to mention that the FIR of the incident was lodged at police station at 14.00 p.m., inquest was started at 15.15 p.m. and concluded at 16.15. p.m. The postmortem of the deceased was conducted on 06.02.1979 at 11.00 a.m. at District Hospital, Sitapur. P.W.-3 Dr. R. V. Singh deposed that he conducted postmortem of the deceased at 11.00 p.m. on 06.02.1979. In his cross examination P.W.-3 stated that dead body had arrived at 10.00 a.m. on 06.02.1979. Duration of time of death may vary six hours either way. As per postmortem report small intestine was filled with faecal matter and large intestine and rectum were empty. It is argued that if the death of deceased is presumed at 12.30 p.m. then he must have taken food before six hours prior to his death. Without entering to the petty controversy we are of the view that the prosecution version is corroborated by medical report, regarding the date and time of the death of deceased at about 12.30 a.m. to 1.00 a.m. on 05.02.1979. Learned counsel for the appellant further argued that the place of occurrence is not fixed by prosecution. From the FIR version itself it is clear that the incident occurred in front of the shop of Dr. Nisar Ahmad. It transpires from the site plan that deceased was caught by the accused from road in front of the shop of Dr. Nisar Ahmad and severed the head of deceased in front of liquor shop. P.W.-10 deposed in court that he collected blood stain and plain earth from the place shown in his map by letter-B. The deceased was dragged by his legs along the road and blood was collected by the investigating officer from the place shown in his map by letter-C. Investigating officer also shown the place-D in site plan where dead body and severed head was lying in the field of Ram Sagar. Thus there is no doubt in the place of occurrence, as the plain earth and blood stain earth was collected by investigating officer from the places B and C shown in the map and recovered the body from place D. There are four places of occurrence. "A"- The point where the deceased was caught, "B"- where the deceased was murdered, "C"- where the blood was found and dead body of deceased was dragged, "D"- where the deceased was set-ablazed, and all the four points were proved by witnesses. The blood stained and plain material of Kharanja (Ex. Ka-8, 9, 10 and 11) were produced and proved in the trial court. The material collected was send for chemical examination. The chemical report Ex. Ka-5 is on record, as per FSL report human blood was found on the piece of Tahmad, Baniyan and blood stain earth. The witness stated that he found blood stains in the field of Ram Sagar and as per Ex. Ka-5, the large quantity of blood was found in blood stain earth, which was collected from the fields of Ram Sagar. Therefore, the prosecution proved by ample evidence that Krishna Bihari (deceased) was caught from road side in front of the shop of Dr. Nisar Ahmad, dragged by accused to the shop of liquor and his head was chopped at place "B' and as it is the prosecution case that accused dragged him from the legs along the road and in front of north western corner of the grove of Vednath Taula and finally took him to the fields of Ram Sagar and set his dead body and head ablazed.
14. It is version of prosecution case that the deceased was assaulted by Ballam, Kanta, Banka and Gun by the accused. P.W.-1, 4 and 5 are the witnesses of facts proved the prosecution case in this regard, which is further corroborated by medical evidence. As per postmortem report Ex. Ka-4, 7 pellets were recovered from the body of the deceased, which were sent to S.P. Sitapur in sealed cover through the accompanying constable. Occipital and right temporal bone was found linearly fractured and frontal bone fractured in pieces. The membrane of head were lacerated and the brain membrane in the frontal lobe was lacerated and pellets were recovered from brain. As per postmortem report the second cervical vertebra was cut. The spinal cord was also cut at the level of second cervical vertebra. The larynx, trachea and neck vessels were also found cut. Punctured wound were found in the whole peritoneum in cavity of abdomen. Stab wound 1.5 cm. x 1 cm. cavity deep and puncture wound of 1 cm. x 1 cm. bone is also detected by doctor at the time of postmortem. The injury stated by prosecution witness is fully corroborated by the medical evidence and it is fully proved that sharp edged weapon, pointed weapon, fire arm weapons were used to cause the death of deceased. Doctor opined that the death of deceased was due to shock and hemorrhage as a result of antemortem injuries. In the external examination it is opined by the doctor that left side lacerated head blackened due to smoke, body senured in dust, scalp hair and left eye brow were burnt and charring on head, right and left forearms lower neck and back pubic hair and head separated from the body at the level of second cervical vertebra.
15. P.W.-10 Shri Shish Ram Singh stated that he found the head of Krishna Bihari severed from the body when he visited the fields of Ram Sagar, after lodging of the FIR and he found the injuries, corresponding to the injuries noticed by the doctor and the burn injuries were also found on the body and head. Therefore, there is no scope to dispute that the deceased was killed in some other manner, than that of prosecution case and evidence of prosecution established beyond any shadow of doubt that the deceased was assaulted with sharp edged, pointed, blunt object and was also fired by the appellant-accused.
16. It is also argued on behalf of appellants that bare reading of the statement of P.W.-4 and P.W.-5 shows that the witnesses were not present on the spot at the time of occurrence and they appeared and deposed before the court because they are interested witnesses and P.W.-1 is real brother of deceased, other witnesses are close relative to the deceased and their presence at the spot is only by the chance.s
17. We have to go through the veracity of witnesses and further to the facts whether their evidence is liable to be thrown away at the very outset. There are various guidelines of Hon'ble Supreme Court on this point.
18. In Kartik Malhar Vs. State of Bihar (1996) 1 SCC 614, the Hon'ble Apex Court has held as under:-
"We may also observe that the ground that the witness being a close relative and consequently, being a partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dilip Singh's case (supra) in which this Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relative were not independent witnesses. Speaking through Vivian Bose, J., the Court observed :
We are unable to agree with the learned Judges of High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. The State of Rajasthan [1952] SCR 377= AIR 1952 SC 54. We find, however, that it is unfortunately still persist, if not in the judgments of the Courts, at any rate in the arguments of counsel."
In this case, the Court further observed as under:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause such an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.
In another case of Mohd. Rojali Versus State of Assam: (2019) 19 SCC 567, the Hon'ble Apex Court in this regard has held as under:-
"As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now wellsettled that a related witness cannot be said to be an ''interested' witnesses merely by virtue of being a relative of the victim. This court has elucidated the difference between ''interested' and '' related' witness in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki (1981) 2 SCC 752; Amit v. State of Uttar Pradesh, (2012) 4 Scc 107; and Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298). Recently, this difference was reiterated in Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549, in the following erms, by referring to the three Judge bench decision in State of Rajasthan v. Kalki (supra): "14. "Related" is not equivalent to "interested". A witness may be called "interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of the case cannot be said to be "interested".."
11. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal case was made by this Court in Dalip Singh v. State of Panjab 1954 SCR 145, wherein this Court observed:
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person..."
12. In case of related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and conistent. We may refer to the observations of this Court in Jayabalan v. Union Territory of Pondicherry, (2010) 1 SCC 199;
"23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witnesses cannot be ignored or shown out solely because it comes from the mouth of a person who is closely related to the victim."
19. In the preview of above case law, it is to be analyzed whether the witnesses produced are interested witnesses and they could not be relied upon. According to FIR deceased was going with his brother, P.W.-1 Radhey Shyam when he was dragged by the accused-appellants and murdered brutally. Radhey Shyam is brother of deceased, his evidence could not be thrown aside merely on the ground that he is brother of deceased. He categorically explained how the accused dragged his brother Krishna (deceased), severed his head and again dragged the body and head towards the field of Ram Sagar. P.W.-1 stated that Kameshwar Pradhan exhorted to severe the head of the deceased and all the accused started beating the deceased with their arms. He could not save the deceased due the fear. Accused dragged the body of his brother from legs towards the field of Ram Sagar, he could do nothing except following his brother alongwith his family members. His brother Pyare Lal, ladies of the house and others relatives were weeping and following the dead body. The manner in which murder is committed leads to the conclusion that no independent witness can dare to come forward and deposed in the court against appellants. Therefore, in these circumstances it is not expectation of law to demand corroboration of evidence by independent witness or villager. Thus the evidence of P.W.-1 is natural and reliable.
20. It is argued that P.W.-4 Premsagar was co-accused with the deceased in the murder of grand son Kameshwar Pradhan and the son of his brother-in-law (Sadhu) namely Subhkaran and, therefore, he deposed against the accused-appellants, but this argument is not tenable, as P.W.-4 stated that he was near the shop of Dr. Nisar Ahmad, accused Dinesh, Mullu, Raj Kumar and Jagannath, was standing there. As soon as the deceased reached there all the accused caught and dragged the Krishna (deceased) and severed his head near the liquor shop. During the cross examination too the witness corroborated the incident, in consonance with the evidence of P.W.-1 Radhey Shyam. There is no material contradictions in the evidence of P.W.-1 and P.W.-4. Therefore, the evidence of P.W.-4 cannot be discarded only on the ground that he was inimical witness and co-accused in the murder of grand son Kameshwar Pradhan and the son of his brother-in-law(Sadhu) namely Subhkaran. The learned trial court however was reluctant to rely upon the evidences of P.W.-4 Virendra and P.W.-5 Premsagar, but there is no material contradictions in the statement of P.W.-4 and P.W.-5. It is also pertinent to mention here that the police arrived at the place of occurrence when the dead body was set to fire by the accused-appellants in the fields of Ram Sagar and the police officials recovered the body of deceased in semi burnt stage. The head of deceased was found separated from the body. The murder has taken place a broad day light in the noon that too on main road in main market. The numbers of injuries of various weapons were found on the body of deceased and the use of various weapons was confirmed by the witness of facts. It is also evident from the evidence on record that the accused were more than five in numbers and they have motive to murder, as the deceased was accused in the murder of grand son Kameshwar Pradhan and the son of his brother-in-law (Sadhu) namely Subhkaran.
21. Prosecution proved, motive, place of occurrence and injuries on the corpse of deceased by the cogent evidence. Injuries are corroborated by the witnesses of fact and doctor. Accused-appellants are said to have used Gun, Banka, Kanta and Ballam in the incident and the injuries of all the four arms are found on the body of deceased. Severed head of deceased and the body separated were recovered in the semi burned condition in the field of Ram Sagar.
22. Learned trial court has given very clear and convincing reasoning elucidated all the evidences. There is no infirmity or perversity in the judgment and order passed by learned trial court, hence we do not find any ground to intervene in the judgment and order dated 28.08.1982 passed by learned trial court in Sessions Trial No.100 of 1980, whereby convicting and sentencing the accused Raj Kumar, Mullu and Jagannath to rigorous imprisonment for life and fine of Rs.1000/- each under section 149 read with section 302 IPC, rigorous imprisonment of six months in default of payment of fine and one year rigorous imprisonment under section 148 IPC.
23. Accused Dinesh expired during the course of trial and the case has already been abated by the learned trial court. Appellant no.1 Raj Kumar @ Babu and appellant no.3 Mullu have died ten years back, as per report dated 24.08.2016 of Chief Judicial Magistrate, Sitapur. Therefore appeal is dismissed as abated against the appeallnt no.1 Raj Kumar @ Babu and appellant no.3 Mullu vide order dated 05.09.2016. Therefore, at the stage of appeal only appellant no.2 Jagannath survived and the judgment of trial court is upheld only with regard to the appellant no.2 Jagannath.
24. On the basis of above discussion, the appeal filed by the appellant Jagannath is liable to be dismissed and is accordingly dismissed.
25. Accused appellant no.2 Jagannath is directed to surrender before the court concerned with 15 days from today. Failing which the appellant Jagannath shall be taken into custody by the court concerned and sent him to jail to serve out the sentence awarded by the trial court and confirmed by this Court.
26. Let the copy of judgment and order as well as the records of trial court be transmitted to the trial court concerned forthwith for necessary information and compliance of this order.
(Mrs. Renu Agarwal,J.) (Ramesh Sinha,J.)
Order Date :- 21.12.2022/VKG