Allahabad High Court
Vijai And Others vs State Of U.P. on 21 February, 2019
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment Reserved on 17.1.2019
Judgment Delivered on 21.02.2019
Court No. - 1
Case :- CRIMINAL APPEAL No. - 1427 of 1981
Appellant :- Vijai And Others
Respondent :- State Of U.P.
Counsel for Appellant :- Krishna Capoor,Bhuvnesh Kumar Singh,Dileep Kumar,Ghan Shyam Joshi
Counsel for Respondent :- D.G.A.
Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon. Dinesh Kumar Singh-I, J.)
1. Heard Sri Dileep Kumar, Advocate assisted by Sri Bhuvnesh Kumar Singh, learned counsel for the appellants and Sri Jai Narayan, learned AGA for the State and perused the record.
2. This criminal appeal has been preferred against the judgment and order dated 19.6.1981 passed in S.T. No.236 of 1979 State Vs. Genda and four others u/s 147, 148, 302 read with 149 IPC, Police Station Sheohara, district Bijnore whereby the appellant Vijay and Udai have been convicted and sentenced u/s 302 read with 34 IPC with life imprisonment each while rest of the accused have been acquitted.
3. In brief the prosecution case is that the informant Layak Singh (P.W.6) and his maternal uncle Genda Singh (accused) used to live in the same house separately and had a common Sehan. Till about four years ago, his uncle used to plough the whole land and also used to keep the crop and when he separated from him, he started causing harm due to enmity at several times. Yesterday the son of Genda Singh namely Vijay had taken away rassi (rope) regarding which at about 8 p.m., his son Veer Singh told him as to why he had taken away the rope without permission and why he had been causing harm to agriculture almost everyday and how long they should tolerate this. At this Vijay and Udai and their father Genda Singh (co-accused) (all the three accused) started abusing his son Veer Singh (deceased) and told him that they would certainly return the entire loss caused to him. Thereafter both the sides got into an altercation which was settled by the relative Bishan Kumar (Mama of the deceased) but Genda Lal told him that he had rehabilitated him and he only would ruin him. Thereafter in the night informant Layak Singh, his wife Smt. Dulari, his daughter Smt. Kusum Kumari and their other small children were sleeping in the courtyard and his son Veer Singh was sleeping nearby on a separate cot under a Chappar in which a lantern was burning as usual. The accused Genda, his sons Vijay and Udai, his wife Smt. Shanti, wife of Vijay, Chandrakala and Munni were talking to each other and in their Kotha also lantern was burning. At about 1 a.m. in the night, his son Veer Singh raised alarm, hearing which he, his wife and daughter got up and they saw that Shanti wife of Genda Singh, Chandrakala wife of Vijay had caught hold of Veer Singh while Vijay, Udai and Genda Singh out of whom Vijay was armed with Barchi and Genda and Udai were armed with knife were assaulting his son and when they raised alarm, one Raj Kumar S/o Harswaroop Singh, Suresh S/o Maharaj Singh and Khem Singh, S/o Banwari Singh along with various other persons came there with their torches towards main door of their house. Right then Genda Singh and others after having seen the said persons coming there, had dragged away his son Veer Singh in their Kotha where he was murdered. None of them (complainant side) could have courage to come forward because the accused-appellant Vijay and Udai threatened them if anyone would try to intervene, he would have to face the same consequences and thereafter after having killed his son, the accused-appellant fled from there from the main door. The Chik FIR was prepared as Ext. Ka-2. The written report (Ext. Ka-6) (containing the above facts) having been given by the informant at police station Sheohara Case Crime No.126 of 1979 was registered u/s 147, 148, 302 IPC on 1.7.1979 at 7 a.m. against Vijay, S/o Genda Singh, Udai S/o Genda Singh, Genda Singh S/o Jhandu, Smt. Shanti wife of Genda Singh, Chandrakala wife of Vijay and entry of the case was made in G.D. at report no.8 at 7 a.m. on 1.7.79 which is marked as Ext. Ka-3.
4. The investigation was handed over to S.I. Vijai Pal Singh (P.W.8) in whose presence the case was registered at the police station. He recorded the statement of the informant Layak Singh at police station and also of Chaukidar Ameer Hussain and thereafter proceeded towards place of occurrence i.e. village Raini and reached the house of the informant where he found dead-body of Veer Singh in the Kotha of Genda Singh on the floor where lot of blood was spread. After having taken the dead-body into possession, he appointed the Panchas and got the inquest report prepared in his handwriting which is Ext. Ka-7. He prepared Chalan Lash, Photo Lash, Chitthi for post-mortem which were written in his handwriting which are marked as Ext. Ka-6, Ka-9 and Ka-10 respectively. After sealing the dead-body, the same was dispatched for post-mortem and handed over to Constable 78 Jagdish Chandra, Constable No.112 Govind Singh along with connected papers. He recorded the statements of Smt. Dulari wife of Layak Singh, Kusum Kumari daughter of Layak Singh and Khem Singh etc. on the spot and thereafter at the instance of informant made inspection of the place of occurrence and prepared site plan which is marked as Ext. Ka-11. One Sari was found tied around the neck of deceased Veer Singh which was blood-stained which was taken in his possession and was sealed on the spot and it's memorandum was prepared in his handwriting which is marked as Ext.Ka-12 and the said Sari is marked as material Ext.-1. From the cot of the deceased, the blood-stained Khes (bed sheet) was also taken into possession which was lying on the floor and it's memo was also prepared and was sealed which is marked as Ext.Ka-13 and Khes is material Ext.-2.
5. In the Kotha of Genda Singh, a lantern was hanging by the latch of the door which was also taken in possession and memorandum was prepared which is marked as Ext.Ka-14 and the lantern as material Ext. 3. Another lantern was also taken from Osara of informant Layak Singh which was hanging by the peg on Southern wall and it's memorandum was prepared which is marked as Ext.Ka-15 and lantern was marked asmaterial Ext.-4. He had also found trail of the drops of blood from the Osara where the informant Layak Singh's son Veer Singh was sleeping up to the Kotha of Genda Singh where the cot of Veer Singh was placed. He had taken blood-stained and plain soil from the place of occurrence and sealed in separate containers and prepared it's memorandum which is marked as Ext.Ka-16 and both the containers containing blood-stained and plain soil are material Ext.5 and 6 respectively. The blood which was found on the ground near the dead-body in Kotha of Genda Singh, from there also the blood-stained as well as plain soil was taken and kept in two separate containers, the memorandum of which was prepared as Ext. Ka-17 and both containers were marked as material Ext. 7 and 8 respectively. Both the lantern which were marked as material Ext.-3 and 4 were found in running condition which were full of kerosene oil. The witness Raj Kumar, Suresh and Khem Singh also presented their batteries (torches) which were in running condition and were taken in the possession and thereafter were handed over in their supurdagi. The supurdaginama of the said torches is Ext. Ka.18. Thereafter he recorded the statements of witnesses of recovery and panchas. None of the accused were found in his house nor in the village and their search was made but could not be traced. Further it is stated by this witness in examination-in-chief that on the information given by the informer, accused Genda Singh, Chandrakala, Shanti were arrested on the road which was going from Nawada towards East to Hiranpura and after their arrest, their statements were recorded and they were brought back to the police station around 10 p.m. He also made entry about it at report no.32 in his handwriting and on 3.7.1979, 4.3.1979 he made search of other accused Vijay and Udai who could not be found, hence report u/s 82-83 Cr.P.C was submitted and thereafter on 11.7.1979 both Vijay and Udai appeared in Court and on 10.8.1979 he submitted charge sheet against them which is marked as Ext. Ka-19.
6. Against the accused-appellants and three other co-accused charges were framed u/s 147, 148, 302 read with 149 IPC on 21.12.1979 to which they pleaded not guilty and claimed to be tried.
7. Thereafter to prove the prosecution case, Smt. Kusum (P.W.1), Dr. R.P. Saxena (P.W.2), Smt. Dulari (P.W.3), Khem Singh (P.W.4), C.P. Ram Krishan Pandey (P.W.5), Layak Singh (P.W.6), H.C. Nadir Ali (P.W.7), S.I. Vijaipal Singh (P.W.8), C.P. Jagdish Chand (P.W.9) and C.P. Jagdish Saran (P.W.10), Abaran Singh (P.W.11), Gendan Lal (P.W.12) have been examined. Thereafter prosecution evidence was closed and statement of accused were recorded u/s 313 Cr.P.C.
8. The accused-appellant Udai admitted that the evidence on record was correct to the effect that the informant Layak Singh was earlier resident of village Himayupur whose parents had died earlier leaving him behind and thereafter father of Genda Singh S/o Jhandu Singh had brought him to village Raini under police station Sheohara and had kept in his haweli and had given him one Kotha for his residential purpose and after the death of Jhandu Singh, Genda Singh had brought him up and got him married also. He denied the evidence that Genda Singh used to look after 150 bigha of land of Layak Singh and out of the income earned, he used to give him only some money which was sufficient for his survival. He also denied the evidence that the son of Layak Singh i.e. deceased Veer Singh when he got married and his expenses increased, pursuant to which he had taken the land back from Genda Singh and started cultivating the same because of which Genda Singh started harboring enmity towards him and time to time used to cause harm to his agricultural land. He also denied the evidence that on 30.6.1979, Vijay had taken the rope (Barahi) from his house in village Raini on which at about 7-8 p.m. Veer Singh had protested thereafter Genda Singh told him that he would be ruined and their whole loss would be made good. He further denied the evidence that at the time of quarrel with respect to Barahi, informant Layak Singh and his brother-in-law Bishan Kumar, wife of Layak Singh (Smt. Dulari) and his daughter were present and that Bishan Kumar had mediated the dispute. Further he denied the evidence that in the intervening night of 30.6.1979 and 1.7.1979, the deceased Veer Singh was sleeping on his cot in village Raini under the police station Sheohara in the Eastern Kotha in front of Osara where lantern was burning and informant Layak Singh, his wife Dulari, daughter Kusum etc. were lying on four cots in front of Osara in their Sehan. He further denied the evidence that on the date and time of the incident at about 1 a.m. in the night, informant Layak Singh, wife Dulari, daughter Kusum and others had woken up at the alarm raised by Veer Singh and had seen in the light of lantern that she along with other accused persons Smt. Shanti, Chandrakala had pinned down the deceased on his cot while accused-appellant Vijay armed with barchi and Udai and Genda Singh armed with knife were assaulting the deceased. Thereafter they raised alarm on which the accused-appellants dragged away the deceased from his cot towards their Kotha. He also denied the evidence that on the date and time of the incident on the alarm being raised by the informant and his family persons mentioned above, the witness Raj Kumar, Suresh and Khemi came there with torches from Eastern door of their house and had seen him along with co-accused dragging the deceased towards the Kotha of Genda Singh and when they tried to rescue him, he along with other co-accused had threatened that if anyone would come forward, he would also meet the same consequences and thereafter Veer Singh had been murdered in the same Kotha and when the witness challenged them, he along with co-accused had run away from the Northern door. He also denied the evidence that on the report of the informant, S.O of police station Sheohara Vijay Pal had visited the village Raini on 1.7.1979 on the place of incident at about 8.30 p.m. and found the dead-body of the deceased in the Kotha of Genda Singh where lot of blood was found and in Sehan drops of blood were found and on the cot on which the deceased was lying, the 'Khes' (bed-sheet) was also found blood-stained which were taken into possession. Further he denied the evidence that he had assaulted the deceased by knife or barchi and stated that he was falsely implicated in the present case because of enmity. Further he stated that in the evening when the occurrence happened, he had gone to Sheohara hospital and stayed there only in the night because his bhabhi (sister-in-law) had suffered an attack and he abstained from saying anything with regard to blood which was found in the chemical examination report on the aforementioned clothes and soil.
9. The other appellant Vijay has also repeated the same reply as given by the co-appellant and nothing additional has been stated by him.
10. In defence, Bhoj Singh (D.W.1), Dr. A.P. Gupta (D.W.2), record keeper (D.W.3), Ashok Kumar Goyal (D.W.4), K.N. Verma medical practitioner (D.W.5) have been examined.
11. After having considered the entire evidence led by the prosecution and having heard the arguments of both the sides, learned trial court has held the accused-appellants guilty having believed the statements of the prosecution witnesses.
12. The learned counsel for the appellants before initiating his arguments had given pedigree of the family of accused so as to facilitate the appreciation of evidence on record and thereafter argued that the petty dispute with respect to rope (barhi) being taken away by the accused without permission, alleged by the prosecution to be reason which led to quarrel between the two sides was not believable because for such a petty dispute, murder could be committed. It was further argued that in fact the father of Genda Singh, Jhandu Singh was instrumental in rehabilitation of the father of the deceased, in the said village as he had got him married and thereafter also looked after his agricultural land. Therefore, he always wanted well being of the deceased and his father and there was no reason as to why he would murder the deceased for such a petty/frivolous dispute. The learned trial court has acquitted the co-accused Genda Singh who is the father of the appellant although he is alleged to be involved in the occurrence and has been assigned the role of assaulting the deceased with knife. The case of the appellants is at par with the case of co-accused Genda Singh. Hence the trial court ought to have acquitted the appellants also. It is further argued that after appreciation of evidence the co-accused Smt. Chandrakala, Smt. Shanti were acquitted because there was no possibility that these ladies would catch hold the deceased because all the other three accused were armed and were capable of assaulting the deceased. Hence it was held by the trial court that there was no occasion for these ladies to pin down the accused so that the other accused could assault them easily. It was further argued that a lot of improvement in the prosecution version was made because one sari was found tied around the neck of the deceased at the time of inquest as well as post-mortem. Therefore, to meet out the said fact, it was developed that the accused Chandrakala had taken off her sari and was reduced to be just in the petticoat and blouse and her sari was used for dragging the deceased from the place where he was sleeping to the Kotha where he was found dead. Further it is argued that three witnesses were named in the FIR namely, Raj Kumar, Suresh and Khem Singh out of whom Khem Singh has been examined as P.W.4. Other witness Raj Kumar and Suresh were not examined who were material witnesses. Further it was argued that Guddi and Vipin who were in the house and are stated to have seen the incident, have also not been examined. It was also emphasized by learned counsel for the appellants during the argument that the accused were not in the house when the incident happened as Smt. Chandrakala had fallen sick and she was taken to the hospital in the night in question and none was present there and to substantiate the same four defence witnesses named above have been examined. Apart from this a large number of discrepancies have been pointed out to have been noticed in the statement of witnesses so as to emphasize that the said witnesses had not witnessed the incident and on that count, it was argued that the testimony of all of them so called eye-witnesses ought to be disbelieved. He further argued that even P.W.4 Khem Singh cannot be held to be wholly believable witness as was the case with other witnesses and that even his testimony deserves to be discarded. It was also argued emphatically that learned trial court has held the accused-appellant guilty solely on the ground that they were absconding after the incident for about 11-12 days and had against them warrants u/s 82 and 83 Cr.P.C issued and because of their such conduct, they were held guilty. It was further argued that the circumstance that they were absconding immediately after the incident, was not put to the accused-appellants u/s 313 Cr.P.C, hence on that count they could not have been convicted by the trial court. It was also argued that in all there were eight persons in the family of the accused, therefore, even if the principle as laid down u/s 106 of the Evidence Act be taken into consideration, by that yard-shick also only two appellants could not have been held guilty and lastly it was argued that it was not a case in which there was any eye-witnesses, in fact the dead-body was found of the deceased lying in Kotha of the accused Genda Singh which was actually the Kotha of sister of Genda Singh namely Swarupiya. It was only after having found dead-body of the deceased that the prosecution has tried to fabricate the entire false story implicating the accused. These points which have been raised by learned counsel for the appellant would be dealt with by us at the relevant time when we would discuss the evidence of the eye-witnesses and other witnesses.
13. On the other hand learned AGA vehemently argued that there was no infirmity in the impugned judgment because the same has been passed on the basis of credible evidence which comprises not only the statement of eye-witnesses namely Smt. Kusum Kumari (P.W.1), Smt. Dulari (P.W.3), Khem Singh (P.W.4), Layak Singh (P.W.6) who all have clearly stated that they had seen the incident and the same stands corroborated by the medical evidence as deceased was found to have suffered as many as nine injuries which included incised wound, punctured wound and other kind of injuries which could have easily been caused by the knife as well as barchi. He further argued that the present appeal deserves to be dismissed out-rightly.
14. Now we would consider the evidence of the witness one by one and proceed towards the evidence of P.W.1 Kusum.
15. The P.W.1 Smt. Kusum Kumari has stated in her examination-in-chief that Genda Singh (accused) son of Jhandu Singh is the father of accused-appellant Vijay and Udai. Smt. Shanti is the wife of accused Genda Singh and Smt. Chandrakala is the wife of accused Vijay. Her father Layak Singh was actually resident of village Himayunpur which was about 1 km. away from village Rainipur. Her father was brought by her maternal grand-father Jhandu Singh to village Raini after nothing was left in village Himayunpur. After the death of Jhandu Singh, her father was being looked after by accused Genda Singh. Her father had 150 bigha of land in village Himayunpur which was being looked after by Genda Singh who got her father married also. The accused Genda Singh and his haveli had common sehan near which there was kotha, in front of which there was chappar. Genda Singh had two kotha which were towards North of her kotha and in front of them, there was also chappar. All the three kothas were towards East and in-front of them, there was sehan and the main door was towards East. Outside of this main door towards East, there was her gher as well as gher of Genda Singh and towards Southern side of the said gher, there was her baithak, the main door of which used to open in the Sehan. The baithak is towards North and it's door would open towards North in the osara of Genda Singh and towards North of osara, there was boundary-wall.
16. About four years prior to the incident, his brother had started cultivating the land and only 11 bigha of land was left with the accused to be taken back. Her brother had started cultivation because of feeling financial crunch and he had started doing very well and one year prior to that he had also purchased a tractor and all this progress was being disliked by Genda Singh who started harbouring enmity, as a result of which he started causing harm to him in various ways. About one year back at about 1 a.m. in the night, she, her sister and her parents were sleeping in the courtyard in front of kotha and her brother Veer Singh (deceased) was sleeping in the haveli under neath the chappar in osara towards South. There was a lantern burning, the light of which was extending towards the cot of her brother. She woke up at the alarm being raised by her brother. All of them had woken up because Vijay, Udai and Genda Singh were assaulting her brother Veer Singh. Vijay was armed with barchi, Udai and Genda Singh were armed with knife and Smt. Shanti and Smt. Chandrakala were also present there and had caught her brother pressing him. When all of them raised alarm, Suresh, Raj Kumar and Khem Singh came there with torches in their hands who also raised alarm, hearing which the accused persons started taking away Veer Singh to their kotha. All of them tried to get her brother freed from them but accused stated that if anyone intervened, then he would also be dealt in the same way as was Veer Singh and therefore because of fear, they did not proceed further, as a result of which the accused had dragged Veer Singh in their kotha where also lantern was burning and after taking him there, he was murdered. When the villagers raised alarm, the accused fled away from the door towards Northern side and thereafter when she along with others went inside the kotha, they saw her brother had died and lot of blood was lying around in kotha. The cot on which her brother was lying, there was khes (bed-sheet) on the same, which was also blood-stained. She further stated that when the accused had taken away Veer Singh from osara to kotha, a trail of blood drops was found between the two places i.e. from osara to kotha. She further stated that her father had gone to lodge report about the incident.
17. She has further stated that on the date of incident at about 9-10 a.m. accused Vijay had come to her house and took the rassi (rope) which he did not return because of which his brother had told him as to why he used to cause harm in this manner and till when he would be tolerated like this, on which altercation had happened at 7-8 p.m. On this Vijay had told him that whatever damage was caused to him, all would be paid back and Genda Singh and Udai were also present and Genda Singh stated that he had rehabilitated him and he only would ruin him and 16-17 days prior to the incident, these people had put sugar in their tractor because of which tractor had become dis-functional. In cross-examination, this witness has stated that prior to this incident, Veer Singh, S/o Gori (not deceased) had received gunshot wound but she does not know whether the said Veer Singh had lodged any report against her brother and the two witnesses of this case i.e. Khem Singh and Raj Kumar. No case had been initiated against her brother. He has further stated that prior to this incident, a quarrel had happened between Shera and her brother but she has no knowledge whether Shera had lodged report against her brother or not. The police had not launched any case against him. She also denied that Shera had renounced his resolve to settle the said quarrel and she also denied that Shera got himself shaved only after the murder of her brother.
18. The above statement was pointed out by learned counsel for the appellant with a view to emphasizing that the deceased had enmity with others also and therefore it was possible that he may have been killed in some other manner by some other persons and not as alleged in the FIR.
19. In cross-examination she has stated that Genda Singh was the eldest in the family and it was wrong to say that when Veer Singh received fire-arm injury, then her brother was advised not to sit with Khem Singh, Raj Kumar and Hasveer Singh. She has further stated that since last about four years, her cultivation was being done separate from Genda Singh but she has no knowledge as to where her fields were located but there was a dispute with respect to 11 bigha of land about which her father told her. She has not seen that the land of younger brother of Genda Singh namely Chotey Singh was adjoining to the said land. The fact that accused were not returning 11 bigha of land used to be disliked by them. She had denied that on the said land, Genda Singh had built any wall. She has also denied that Genda Singh had taken debt about ten to eleven thousand for construction of the said wall but there was dispute between her father and Genda Singh with respect to this wall also but denied that Genda Singh used to claim that wall as his own. During chakbandi (consolidation proceedings), Genda Singh had got 40 bigha of land of his father in his name and it was promised by him that in-lieu of that he would be given share in his haveli, but instead of that since last two years, he had started saying that he should go away leaving haveli and thus 6-7 months after that her father had constructed another haveli and till the said haveli was constructed, she had lived at the house of Raj Kumar. There was no enmity between them for last two years except the incident which happened of lifting the rassi when the said rope was taken away by Vijay. She had seen with her own eyes the same being taken away by all of them but none of them had told anything to him because of fear and the said rope was not returned. At that time, there were only ladies in the house and her brother and father were not there, who had come after some time as they were in the jungle and when they returned at about 5-6 p.m in the evening and about one hour thereafter, they talked in respect of it. During that time, there was no one else there except the family members of both the sides, but also thereafter stated that her maternal uncle Bishan Kumar was also there who had come there, who did not live at the place of Khem Singh, rather stayed there only and after quarrel, he had gone to Ameenabad which was about 1-1.5 miles away from her village. She denied that on the said date Bishan Kumar had stayed at the house of Khem Singh and returned next day in the morning at about 11 a.m. His maternal uncle continued to remain at home. She also denied that her maternal uncle immediately after the murder had gone to the house of Khem Singh. She further stated that at the time of incident, about 50 persons had assembled there but none of them told as to who had killed her brother. She had sent information for chaukidar who had come in the morning as he had gone to nearby village. Nobody had given advise that she should go for lodging the FIR after taking 10-15 persons to the police station rather everyone told her that she should call chaukidar who would inform the police. The said chaukidar came at about 5-6 a.m. in the morning. His father became unconscious. The police was called by her father and chaukidar. Her brother stayed in the house only, after Vijay had taken away the rope. She does not recollect as to who had taken meals at what time, although she used to cook the food at that time and used to also serve the same. In the said night, they had taken meals some time before the incident of quarrel. Veer Singh had not eaten anything. She does not recollect whether Veer Singh had eaten anything prior to the incident. In the said night she stayed at home. She had not seen the deceased having food after the incident. All of them had gone to their cots for sleeping at 10-11 p.m. and Veer Singh had gone to sleep at the same time. All of them slept after having taken meals.
20. Learned counsel for the appellants had drawn attention of this Court towards above piece of evidence and argued that in the post-mortem, stomach was found empty hence it was argued that it indicated that death did not take place at the time when it is being alleged to have happened by the prosecution side.
21. It is further stated that the cots of the accused were situated about 12-13 paces away from their cots and that there was a screen (parda) between the cot of the father-in-law and daughter-in-law, but when the S.I visited the spot he did not find the said screen (parda) hanging there nor any rope. She could not tell as to who had removed the rope and the said parda from the said place although she continued to remain at home till the I.O had reached there.
22. The learned counsel for the appellants had drawn the attention of the court towards the evidence and argued that the I.O did not find on the spot any cot of the accused side nor the same has been shown in site-plan which belies the statement of the said witness.
23. She further stated that there are three kothas in her haveli in the Eastern side. The real sister of Genda Singh namely Swarupiya is widow lady who is still alive. The Southern most kotha was in her possession. Swarupiya used to live at the place of her Samadhi since the time her son was married. It was wrong to say that in the Northern most, kotha Swarupiya used to live. Her marriage was performed 7-8 years ago but Eastern door of the haveli was in the middle and had doors in it. One door was opening towards East from the baithak and the same was opening in the Sehan in which there was no door. It is wrong to say that at the time of the incident, Northern wall of the sehan was broken. Rather in the said wall, there were doors and all these three doors used to remain open in the night which used to be closed without any latch and would remain open throughout the night.
24. Learned counsel for the appellants further argued that the testimony of this witness is absolutely unbelievable as she has stated that the main door would be left open even during the night which is unusual.
25. She has further stated that she had woken up on the alarm raised by Veer Singh who was crying loudly "marr diya bachao". She saw that accused were assaulting her brother with their weapons but she could not see as to where they were assaulting. The two persons were assaulting by knife and one was assaulting by barchi. The complainant side was also shouting loudly "bhaiya ko maar diya bachao". The accused had taken away Veer Singh in the kotha even before the witnesses could reach there which was about 8-9 paces away from the chappar. At this stage, the court made inquiry from this witness to which she has stated that her statement was correct to the effect that at the time of alarm being raised by the witnesses, Veer Singh was being taken away and that she has not given this statement that before the witnesses reached there Veer Singh had been taken away.
26. She has further stated that when witnesses came there, the accused were in-front of the middle kotha and it was not that after seeing the witnesses coming, the accused had lifted her brother. She does not recollect whether she has given statement to the police to the effect that soon after the witnesses were coming, seeing them coming the accused had started dragging her brother from the cot towards their house. If the same has been written she could not tell it's reason. When her brother was being taken away forcibly her brother was crying loudly and thereafter as soon as he reached inside the kotha, his cry became silent. At the time when accused were taking her brother towards kotha all the four persons had assembled there but none of them made any effort to close the door of the room from outside front latch on it wherein the deceased had been taken. None had tried to chase the accused persons. When the accused had taken away the deceased from the cot, at that time, a saari was thrown around the neck of deceased belonging to Chandrakala who had taken off her saari and was left in petticoat and blouse. Though about this she had not stated to I.O as to from where the said saari had come. One question was put to her as to whether prior to the murder at 1 a.m. in the night accused were talking in low tone and she answered in the affirmative and further stated that by 1 a.m. murder had already been committed. Thereafter the court also cross-examined her in which she has stated that prior to murder she had not heard any accused talking to each other. At the time when she was sleeping, she had heard some talk going on between the accused at about 10-11 p.m. in a low tone but she could not comprehend as to what was being discussed among them. Further she has stated that it was wrong to say that her brother used to go often with Raj Kumar and on the date of incident in the night no drizzling had taken place at 3-4 a.m and it was wrong to say that when at about 3-4 a.m., she had woken up she found Veer Singh in dead condition in Northern courtyard and this case had been lodged against the accused persons in collusion with police. She has denied that Chandrakala had fallen sick in the night of incident and was taken to Syohara.
27. Dr. R.B. Saxena (P.W.2) has stated that on 1.7.1979 at about 2 p.m., he had conducted the post-mortem of Veer Singh, S/o Layak Singh (deceased), r/o Raini, P.S. Syohara who was brought by constable 74 Jagdish Chandra and constable 112 Govind Singh Sarav and found following injuries :-
(1) Incised would 2¼"x4/10"x1/10" from right To left at left lower jaw under surface and wound is 1¼" deep towards the outer and (left) side of jaw.
(2) Punctured incised wound margins clean cut 1/2"x2/10"x4/10" at middle and front of neck.
(3) Punctured incised wound one 3/4"x3/4"x2" (oblique right To left) i.e. from right side neck to middle of neck) on right side neck 1" outer to injury no.2.
(4) Punctured incised wound margins clean cut ¾"x4/10"x2" on right side neck 1/2" outer and below injury no.3.
(5) Punctured incised wound 1/2"x1"x1/2" at root and upper chest right side.
(6) Stab wound margins clear cut 1"x1½"x4/10" right abdomen lower side towards middle, depth of wound is oblique and upto fatty layer.
(7) Stab wound 1"x1½"x2" right lower abdomen 3½" outer to (6) depth superficial and horizontal up to muscular layer.
(8) Incised wound 1"x½"x1/10" between thumb and first finger right hand.
(9) Two incised wound 1½"x½"x1/10" each and 1/4" apart between left thumb and under finger on left hand.
28. He has further stated that the cause of death was hemorrhage, shock, asphyxia due to injury in the neck and the death of the deceased had taken place within one day of conducting the post-mortem report. He has proved the post-mortem report as Ext. Ka-1. In cross-examination, this witness has stated that there could be difference of three hours in death on either side. The injuries could have been caused to the deceased by some sharp-edged weapon like knife.
29. P.W.3 Dulari, W/o Layak Singh has stated in examination-in-chief on 8.7.1980 that about one year ago in the night at about 1 a.m., she along with her husband and her daughters was sleeping in-front of their kotha and accused were sleeping towards Northern side. Her son was sleeping in Osara where lantern was burning. When she woke up, hearing alarm raised by her son and other persons also had woken up, she saw that Genda Singh, Udai and Vijay were assaulting her son with knife and barchi and Chandrakala and Shanti were pressing him down. When she along with others raised alarm, the accused had taken away her son Veer Singh in their kotha from Sehan and right then witness Khemi, Raj Kumar and Suresh also came with their batteries (torches) and when they focused their torch and tried to set her son free from the clutches of the accused, the accused stated that if anyone came forward, they would have to face the same consequences and stopped them. Thereafter the accused after having taken her son inside the room killed him and when further alarm was raised by entire villagers including her and her family members, the accused fled away from the Northern door and thereafter they all went near her son Veer Singh and found him dead and lot of blood was found spread on kotha and the sehan and on the cot whereon khes (bed-sheet) was also full of blood. On the same night, at about 9 p.m., an altercation had taken place between her son and accused with respect to rope which dispute was settled by her brother Bishan Kumar. In cross-examination this witness has stated that Bishan Kumar is her real brother and Chandrapal and Shiv Kumar are brothers of Bishan Kumar. The daughter of Genda Singh is married to Shiv Kumar. Since the time her son was killed, she (Urmila) was staying in her father's house on her own free-will and she was not turned out. Chandrapal was married with daughter of Banwari Singh resident of Buapur. Banwari the father-in-law of Chandrapal used to live with Chandrapal. She had never borrowed any money by pledging her jewelleries with Chandrapal. She also denied the knowledge of any case in respect of beating the son of Pokhar being taken away her brothers. Bishan Kumar was also known as Buddhu. One case regarding abduction of Brajraj and thereafter of murdering him was proceeding in Moradabad against Bishan Kumar in which his name was taken. Bishan Kumar was in her house one day before the incident of murder. The murder took place at about 8 p.m. and it was wrong to say that he stayed with witness Khemi and that he came to the place of occurrence next day in the morning after the murder had already taken place. Bishan Kumar used to come to her house and used to help in various works and she has sold ten bigha land for consideration of Rs.20,000/- but denied that for the execution of sale-deed, Bishan Kumar had gone. She further stated that a tractor was sold by her for Rs.50,000/- but not at the instance of Bishan Kumar. The Sheesham which was in her field was sold for Rs.4,000/- after the murder of her son and she had also sold her buffalo, but he denied that all these sale were made at the advice and after discussion with Bishan Kumar. She further denied that Bishan Kumar was in the village during the night when incident of murder happened and she was not concealing this fact. Bishan Kumar had not come today rather her brother Chandrapal had come because Bishan Kumar was having some ailment.
30. It was argued by learned counsel for the appellants that the accused-appellants have been falsely implicated in the present case. In fact Bishan Kumar who is the brother of mother of the deceased used to interfere in vital decisions such as sale of property and other things. He was instrumental in killing of the deceased and not the appellants. It was further argued that there was no enmity with the accused of the complainant side.
31. This witness further stated that in haveli there are three kotha facing the East and all these three have latch (sankal/bolt) at the top of the door and not at the bottom but what is the position of this latch, she does not know as six months have gone by since the incident. There were four cots for the complainant side to sleep and there were 5-6 cots of the accused side at a distance of about 12 paces towards North. Prior to the murder, she used to do parda from Genda Singh. There was no screen between the cots of complainant side as well as accused side. On the date of incident at about 3-4 a.m. in the night, there was no rainfall. At about 1 a.m. in the night incident happened and by 2 a.m., villagers had assembled there. On arrival of Inspector, he did not find any cot rather one cot was lying under the chappar on which deceased had slept. She heard the deceased crying "maar diya, bachao" and when she woke up, the accused were assaulting her son and thereafter she was also pleading the villagers to rush as her son was being killed and by the time, the villagers arrived there with their torches, the accused had thrown a knot of sari in the neck of the deceased which was done by accused Vijay. After the accused had gone away from there and she went inside, then the face of the deceased was not covered by saari. The deceased was made to sit on the cot and sari was tied around him. Two persons had caught his one hand and the other two persons had caught his other hand and accused Vijay was giving him push. All of them had caught the deceased with their hands and made him stand up. Veer Singh was taken inside the kotha with his hands being held by the accused. When they were tightening the sari around the deceased, she and other witnesses did not make any effort to reach there because of threat given by the accused that they would also meet the same fate. Initially three people had come there and later on other persons had reached there. This witness has further stated that Kusum Kumari had taken the meals at about 10 a.m. Veer Singh had taken his meals in the evening after time of sun set.
32. Citing above statement, the learned counsel for the appellants has pointed out that the statement was not believable because it is self contradictory because on the one hand she has stated that after the accused had gone away from the place of occurrence and when she along with others went inside the kotha, she found that the deceased had died while on the other hand her statement shows that the deceased was being made to sit him on the cot by the accused, therefore the statement of this witness cannot be held to be trust-worthy.
33. On the other hand learned AGA stated that it is often seen that the witness over state because of anxiety so that the accused may not be allowed to go unpunished and therefore the statement of this witness cannot be discarded in totality and part of the statement which is found trustworthy requires to be relied upon discarding the remaining which is found to be untrustworthy, relying upon the established proposition of law of separating grain from the cheff and stated that her statement is believable at least to the extent that the accused Genda Singh, Vijay and Udai had assaulted the deceased when he was sleeping in osara and thereafter he was dragged towards the kotha where he was finally killed by them. Hence circumstances reveal that the testimony of this witness is partly believable to that extent and when accused had fled from kotha where the deceased was found dead.
34. Khem Singh who is the neighbour and is an independent witness has stated as P.W.4 in examination-in-chief on 8.7.1980 that about one year ago at about 1 a.m. in the night he had gone for taking paneer at the house of Raj Kumar, soon he heard commotion as a result of which he reached the house of Genda Singh which was at a distance of about 15 paces from there, with Raj Kumar and both of them were having batteries (torches) with them. He found Suresh coming from his house and he also had a battery and all of them reached near the Eastern door of the parties and lighted their torches, they saw that Genda Singh, Chandrakala, Shanti Devi, Vijay and Udai all were taking away Veer Singh towards their kotha. When they tried to set him free, the accused had threatened them. Vijay was armed with barchi and Genda and Udai were armed with knife. Veer Singh was bleeding and he was being dragged towards kotha and after having taken him there, he was assaulted and killed. On their making noise when other persons started coming, the accused fled from the Northern door and thereafter they saw inside the room and found Veer Singh in dead condition and there was lot of blood in the kotha and sehan. The lantern was burning there and all five accused were present in the court.
35. In cross-examination, this witness has stated that Veer Singh, S/o Bholu had never lodged any report against him although marpit had also taken place between them. Veer Singh S/o Bholu had lodged report against Raj Kumar and Veer Singh S/o Layak Singh (deceased) in which police filed final report. He knows Bishan Kumar S/o Dhan Singh but denied the suggestion that on the date of incident he was sitting in his house and stated that he had come in the morning after the murder had already taken place. He has 20 bigha of land for agricultural purpose which belongs to Shyam Lal. He further stated that he used to sow Paneer (appears to be some kind of crop) in one bigha of land every year but his half crop had wasted in that year when incident happened. He started sowing munji and thereafter stated that he had already sown the said crop in 5-6 bigha of land. In 5-6 bigha of land, paneer had already been sown. He has no knowledge whether one day prior to the incident Raj Kumar had come in the village or not. On the date of incident, he had sown Munji till 4 p.m. in the evening and had come home and slept at about 12-1 a.m. in the night. He had not gone to the house of Raj Kumar at about 4 p.m., rather had gone in the night at about 10 p.m. After reaching his house, he came to know that he had gone to take paneer. Thereafter he had gone to the house of Raj Kumar at about 12 in the night. He was having roti and came out after about 10 minutes and after having talks about paneer, he was about to go from there when it was suggested that he should take beedi and thereafter both of them started talking to each other. He has further stated that he had stated to the I.O that about 10 p.m. in the night he had gone to the place of Raj Kumar to take paneer but had not told him about beedi being smoken by him. He was present on the place of incident when the I.O had visited there in the morning and he had recorded his statement after dispatching the dead-body. The main door of the haveli is 10-15 paces away from the door of gher. To go to the house of Raj Kumar one would have to travel about 40 paces from the gher. From the turn, his house is 10 paces. He had not got opened the doors of haveli as the doors were already open. He had heard the call "bachao maar diya" and that Raj Kumar and he, both had batteries and they forthwith proceeded towards the place of occurrence and Suresh had met at a distance of 10-12 paces from the gher of Genda Singh, but no talk happened with him and all of them were standing at a distance of 2-3 paces in the south from the main door of the haveli. At that time Veer Singh was sleeping on his cot at a distance of 2-4 paces away from the chappar outside. At that time, he had seen blood dripping from his body but could not tell as to from which part of body blood was dripping. He had stated to the I.O about this fact and also found that 'niwar' of the said cot was not stained with blood while the khes (bed-sheet) had stains of blood. Right from the place where the cot was there up-to kotha, there were blood spots which was forming a line of blood. Veer Singh was proceeding in standing position as he was being dragged and saari was held by Chandrakala from the right side and by the Shanti from the left side and he was being dragged forward. His left shoulder was held by Genda Singh and right shoulder was held by Udai Singh. His neck was tied around by saari. The ladies were holding the palla of saari at a distance of one hand from Veer Singh. Barchi was fixed in the lathi and both the knife were in open condition. These people had caught hold by one hand and in another hand, they had weapons and were dragging the deceased. At that time, he was at a distance of 8-10 paces. Initially three persons were there and as soon as other persons started streaming in there, the accused fled from there. He had seen the cots of Genda Singh which were lying there without bedding but when I.O reached there, they were in horizontal position.
36. This witness has further stated that he had found the rope tied on the kotha of Genda Singh. This rope was used for screen but when accused had fled from there and many people reached there, the said screen was not found there. Nobody had tried to close the latch from outside the door of the kotha belonging to the accused nor any of them tried to catch the accused because of fear and he had gone inside kotha only after the accused had fled from there. He had seen one injury upon the neck of Veer Singh and one upon his abdomen and on hand. The saari was tied around his neck but not on his face and the same was found in that condition when the I.O had reached there. This witness has stated that the I.O had made recovery memo of torch next day in the morning at about 8-9 a.m. which was signed by him and Raj Kumar. The chaukidar had come in the morning though he was informed in the night but he was not found at home. The incident which happened inside the kotha was seen by him for the first time from a distance of 4-5 paces towards North and had also been shown to the I.O. when the accused had fled away from the North door, the said door remained open. The kotha in which Veer Singh was taken by the accused was about 7 paces in length towards North and South and 3-4 yard from East to West in width and was having one door in it and the dead-body was lying at a distance of one hand from the door inside the kotha.
37. The report was lodged at about 1-1/2 a.m. in the night by Jai Prakash which was dictated by Layak Singh at Chaupal, in the light of lantern. After the day break at about 5.30 a.m. Layak Singh and Chaukidar had gone for lodging the FIR at the police station on foot where he was not accompanying them. Layak Singh had told him at 3 O clock that he had lodged the report but he did not ask him as to who were made witnesses in the same nor who were the accused named therein because all this happened in-front of him, hence there was no need to inquire about the same. He has denied that Genda Singh used to tell him to leave the company of Veer Singh. It was not that since after the incident of Veer Singh S/o Bholu, Veer Singh was not sitting in his company. He (Veer Singh) also used to sit with him regularly and he used to sit regularly with Genda Singh and stated that Genda Singh and Veer Singh had good relationship but he had come to know later on, that some quarrel had happened with respect to rope after about 8 p.m. when it was being discussed in the village and has denied that he was giving false statement in the Court.
38. About the testimony of this witness, learned counsel for the appellants has stated that he is not trust-worthy witness because it is unusual that in the night he would go for taking paneer and on hearing such kind of noise he would go there and would see deceased being dragged to the kotha from the place where he was sleeping in osara i.e. in-front of chappar as alleged by the prosecution. He has narrated the deceased being held by the accused persons also does not inspire confidence and therefore it was argued that his evidence requires to be discarded.
39. On the other hand learned AGA argued that the statement of P.W.4 is believable as he is an independent witness. He was present at the time of incident and has given the details as to how occurrence happened. Although he has admitted that the detailed version of the incident given in respect of accused committing offense inside the kotha appear to be exaggerated but again the same point was pressed that his statement must be believed by the Court to the extent that he has seen the accused assaulting the deceased when he was sleeping under the chappar. Thereafter he was dragged to the kotha where he was ultimately found dead.
40. Constable Ram Krishna Pandey (P.W.5) is the formal witness who has simply proved the Chik FIR as Ext. Ka-2 and G.D. as Ext. Ka-3 but nothing has been argued by either side about the statement of this witness. Hence we do not see it necessary to discuss the statement of this witness in detail.
41. Layak Singh (P.W.6) is the informant of this case who has stated that actually he is resident of village Himayupur which was about 1 mile away from village Raini. He had his agricultural land in the same mauja. His parents had died during his childhood. Thereafter nothing was left in the said mauja for him to survive and hence his maternal uncle Jhandu Singh had brought him to his village and had nurtured him and used to look after his land. After the death of his maternal grand father (Nana) he was looked after by son of his Nana namely Genda Singh (accused) present in court. Genda Singh (accused) had got him married and after his marriage, he had given him a kotha in his haveli for residential purpose. Genda Singh also used to give him some grains and some times he gave nothing. After his marriage, there were two sons and three daughters born to him and only two daughters are alive. His elder son was Veer Singh (deceased) and other son was younger in age. Veer Singh had also been married and on the date of incident, his wife was living in her matrimonial home. Four years prior to the murder of his son, he had started agricultural work separately from Genda Singh and he was flourishing as he had also purchased a tractor but this was not relished by the accused and they started causing harm to his agriculture also.
42. About one and a quarter year ago at about 11 p.m. in the night, he, his wife Dulari, daughters Kusum and Guddi were sleeping in sehan and son Veer Singh (deceased) was sleeping beneath the chappar in sehan where lantern was also burning, the accused Genda Singh, Vijay, Udai, Shanti and Chandrakala were also sleeping in the same sehan in-front of kotha. Veer Singh raised alarm whereon he had woken up along with his wife, children and saw that all the above named accused out of whom Genda Singh and Udai armed with knife and Vijay armed with barchi were assaulting the deceased while Shanti and Chandrakala were pressing down Veer Singh. Thereafter the statement of this witness has been recorded by the trial court in question-answer form in which he has stated that he had seen the accused assaulting the deceased and on the alarm raised by him and his family members Khemi, Raj Kumar and Suresh came there with their batteries from Eastern door inside the sehan. The accused told them that they would meet same fate as Veer Singh if they tried to interfere. Genda Singh told him that he had rehabilitated him and he would only ruin him. All the five accused fled away through the Northern door. At the time when accused were assaulting Veer Singh, he was lying on the cot on which there was bed-sheet. When he raised alarm, all the five accused had taken away Veer Singh inside their kotha and there they had murdered him and when the accused had fled away, he and his witnesses remained in their house only near his son. When he reached near his son, he was found dead and lot of blood was found spread in kotha and also khes was found blood-stained from which blood was dripping. He had dictated the report to Jai who is son of Ganga Sharan and affixed his thumb impression which is Ext.Ka-6 and the same was given at the police station in the morning whereafter police had interrogated him and had accompanied the police. He has stated that in the night when the incident happened, on the said date, no quarrel had happened with accused and on the said day when he was in jungle, Vijay and Genda Singh had taken away his rope and when he returned in the evening, Veer Singh told Vijay, Udai and Genda Singh as to why they were causing harm whereon they stated that he would make good entire loss today and stated that they had rehabilitated them and would also ruin them.
43. In cross-examination this witness has stated that two days prior to the incident, he had gone to jungle and rassi (rope) was taken away by the accused on that day. There was no outsiders or any person of the village present when the quarrel with respect to rope had taken place. Except present report, he had not lodged any report against Genda Singh nor had he any kind of enmity towards him and he used to respect him just like his father and the accused also used to treat him like son.
44. Referring to the above statement, learned counsel for the appellants argued that this admission would go to show that there was no question of the accused eliminating the son of the informant as the Genda Singh used to treat the informant just like his son.
45. This witness has further stated that his statement given above that on the date of murder in the evening, quarrel had happened with respect to rope was wrong because the said quarrel had happened two days prior to the murder and that the said statement given above, was given by mistake because he was too much nervous due to the murder of his son. This witness has stated that on the date when occurrence took place, they used to take food by 6 p.m in the evening and would go to sleep and the work of cooking food was being done by Dulari. On the date of incident, Veer Singh had come from outside and had not taken his lunch till afternoon. Veer Singh had come to him after half hour of cooking of food at 7 p.m. on that date. He (P.W.6) was suffering fever for three days. At the time when his son had taken food, other family members had also taken food and had gone to sleep in sehan and both accused as well as complainant side had gone to sleep in their respective sehan. Four cots were in his sehan and 4-5 cots were there on the accused side. At about 3-4 a.m. in the night, when it started drizzling, the cots were drawn in when he saw inside, he found that murder had already happened.
46. Thereafter court cross-examined this witness and asked that he had given statement above that all of them had woken up on alarm being raised by his son and saw accused persons assaulting the deceased by kinfe and on their making noise, witnesses came and accused dragged the deceased inside their kotha and murdered him and now he was saying that he woke up on drizzling he went inside and found the deceased dead which of his statement was correct, to which this witness has replied that his statement is correct that at 11 p.m., he had seen accused persons assaulting Veer Singh and he was taken in their kotha and from there, they fled away. It is wrong to say that at 4 a.m. it was drizzling and he got up and saw that his son was in dead condition. Subsequently given statement is wrong because many things crossed his mind but it is not so that he was so much purturbed that he could state anything.
47. He further stated that he had 150 bighas of land and had not sold any part of that land. After the murder of his son, he had not executed any sale-deed. His wife might have sold land which was in his name. Tractor would have been sold by his wife and about this writing work might have been done by her only. He had not put his thumb impression. The tractor was in Milak while he lives in village Raini.
48. In regard to the above statement, it was argued by learned counsel for the appellants that the statement of the witness is unbelievable because if any land belonging to him was alienated that was not possible without his consent and also hammered the point that he was dominated by his wife who sold the properties owned by him in collusion with his brother-in-law Bishan Singh who might have been involved in the murder of the deceased, because he wanted to grab the property of P.W.6.
49. Further this witness stated that in the night when murder had taken place, the rain had happened. Their cots were dragged in sehan where his son was sleeping on his cot. His son was not found in dead condition rather he was dragged in front of him from there by the accused in their kotha. The dazzling had happened around 3-4 a.m. in the night.
50. It is further recorded in his statement that drizzling had happened about 3-4 a.m. in the night, this statement was given by this witness on the suggestion/prompting of his counsel. Earlier he had stated that just prior to his getting up, it has drizzled. He has further stated that when he heard the noise, he got up and after 10-20 minutes it drizzled and thereafter he had not gone rather remained there only. It had drizzled then only when accused fled from there and thereafter stated that it drizzled 20 minutes after the accused had fled. The cots in the sehan were placed in horizontal condition. When this witness was asked whether he had taken cots of accused Genda Singh and others inside, he replied that he did not know where those cots were kept. Thereafter he has stated that just before it had started drizzling, Veer Singh was taken away by the accused and witnesses were standing where he was present but the court has recorded that whenever contradictory statement was confronted to him, he replied that it was not so that after the quarrel in respect of rope he had gone somewhere. He has further stated that the sale-deed of tractor and land were done by his wife without his consent and stated he did not know why they were sold by his wife although he lives in the same house with his wife and children. When murder was committed, his wife was doing all the work on her own. She could not tell whey she would not consult him in such matters. Again he stated that in the night of murder no drizzling happened and it drizzled for 8-10 minutes and thereafter stopped. The incident happened at about 11 a.m. in the night. Again a question was put that there was lot of difference in 2.30 a.m. and 11 p.m., to which he responded that there is difference of only three hours and further he stated when he was confronted with difference of three hours, that he was only in the position to say whatever he has stated. The court cross-examined this witness on it's own and thereafter the defence again started cross-examination and he stated that he could not tell on whose advice or suggestion his wife had sold the aforesaid things. She might be doing so on the advice of her brother Khem Singh and others. Having seen dead-body of the deceased, he had become unconscious and became conscious when the I.O reached there. He denied that the inspector had got the report lodged by taking him and Jai Prakash to police station.
51. Head Constable Nadir Ali was examined as P.W.7 who is also a formal witness. He has simply proved that small containers along with blood-stained soil and plain soil etc. and other articles which were collected by the police during investigation. As he is a formal witness, nothing much has been argued about his statement by either side, hence we do not consider it necessary to discuss his statement at length.
52. S.I. V.P. Singh has been examined as P.W.8 who has investigated this case and has stated in his cross-examination that on 1.7.79 he was posted as S.O at police station Syohara and had been assigned investigation of this case and he has recorded the statement of informant Layak Singh and Chaukidar Ameer Hussain at the police station and thereafter after having received copies of FIR and G.D proceeded towards the place of occurrence in village Raini. On reaching the house of the informant he found the dead-body of Veer Singh in the kotha of Genda Singh lying on the floor where lot of blood was spread. After taking the dead-body in possession, Panchas were appointed and Panchayatnama Ext. Ka-7 was prepared in his handwriting. Photo lash, chalan lash and chitthi with respect to post-mortem were prepared in his handwriting which were marked as Ext.Ka-8, Ka-9 and Ka-10 respectively. The dead-body was sealed and was sent for post-mortem through constable Jagdish Chand and Govind Singh along with relevant papers and thereafter he recorded statements of Ram Dulari wife of Layak Singh and Km. Kusum, D/o Layak Singh and Khem Singh and others. At the instance of informant and witness, he inspected the place of incident and prepared the site-plan which was marked as Ext.Ka-11. He found the sari tied around the neck of deceased Veer Singh which was blood-stained and the same after having been taken off, was taken into police custody and sealed on the spot. It's memorandum was prepared in his handwriting which was marked as Ext.Ka-12 and Sari is material Ext.1. Blood-stained khes (bed-sheet) was also taken in possession. The recovery memo was prepared by him which is marked as Ext.Ka-13 and the Khes as material Ext.2. In the Kotha of Genda Singh, one lantern was also recovered which was marked as Ext. Ka-14 and lantern as material Ext.3. The said lantern was found hanging by the peg on the wall. It's recovery memo was prepared as Ext.Ka-15 and lantern as material Ext.4. He also found the drop of blood starting from osara of informant Layak Singh where the deceased had slept up to the Kotha of Genda Singh and there was Sehan in between. From there also blood-stained and plain soil was taken by him and both were sealed in separate containers and it's recovery memo was prepared which is Ext.Ka-16 and the said containers were marked as material Ext.5 and 6 respectively. From near the place where dead-body was lying in the kotha of Genda Singh, from there also, blood-stained soil and plain soil was collected and recovery memo was prepared which was marked as Ext. Ka-17 and the said containers were marked as material Ext.7 and 8 respectively. Lanterns were marked as material Ext.3 and 4 which were found in running condition and oil was in it. The batteries collected from witnesses Raj Kumar, Suresh and Khem Singh were also in running condition and recovery memo was prepared which is Ext.Ka-18. Thereafter he recorded the statements of witnesses of recovery and panchnama and thereafter he made search for the accused who were not found in the village. The same day on the information of the mukhbir (informer) accused Genda Singh was arrested on the road towards Hiranpura towards Eastern side at about 8 p.m along with Chandrakala and Shanti Devi and thereafter statements were recorded. Thereafter he returned to police station along with all the case property and deposited them at the police station. In G.D. No.32 time 10 p.m., he made entry of his return and thereafter on 3.7.79, 4.7.79, 7.7.79, 10.7.79 he made search for the accused Vijay and Udai but they were not found and hence warrants u/s 82/83 Cr.P.C. were obtained. Thereafter on 17.7.79 they appeared before the court and on 10.8.79 he submitted charge sheet.
53. In cross-examination he has stated that he did not consider it necessary to write in the G.D as to where the accused were arrested and how they were arrested. He did not consider the importance to write in panchayatnama the weapon by which the said injuries were found to have been caused. The sister of Genda Singh namely Swarupiya Devi who is widow lady was also interrogated by him. In site-plan, the kotha shown in Northern most side was not that of Swarupiya Devi. He had not made any search of the kotha of Genda Singh where the dead-body of the deceased was found. He denied that he had wrongly shown the recovery of the dead-body from the said kotha deliberately. In sehan, he has shown place "G" from where witnesses had seen the occurrence which is 15 paces away from the main door towards North-West. From the cot up to the door, line of blood was found by him. In that night, there was no rain nor there was water in "Lautiyon". It is wrong to say that he has made false evidence of blood. There was no blood found beneath the cot on which Khes was spread. The Khes was found lying on the floor which was given to him by the informant after picking the same up. The witness Kusum (P.W.1) has given statement to him that she and her family members had raised alarm, hearing which Raj Kumar, Suresh and Khem and many other persons came there with their torches from the Eastern door to the place of occurrence. She has also stated that having seen her and other persons of the village these (accused persons) caught-hold of the cot, the same was started to be dragged towards their house. The witness Khem Singh (P.W.4) had not stated to have gone to take Paneer from Raj Kumar for two times rather he stated that he had gone once. He had taken statement of Bishan Kumar on 1.7.79. This witness has denied that he had lodged the report of this incident falsely after consulting Khem Singh, Raj Kumar and Bishan Kumar and had made false investigation and prepared and submitted false report.
54. Constable Jagdish Chandra (P.W.9) is the formal witness. He had taken the dead-body of the deceased in a sealed condition for post-mortem.
55. Jagdish Saran (P.W.10) is the formal witness in-front of whom the case property was deposited in Malkhana.
56. Ahivaran Singh (P.W.11) is also formal witness who had also deposited the case property in Malkhana.
57. Constable Gendan Lal (P.W.12) is also formal witness who has also deposited some part of case property in Malkhana. All the above four statements are not discussed at length by learned counsel for the appellant, hence we do not find any relevance to discuss the statements here.
58. It is apparent from the details mentioned above that according to prosecution story, the accused-appellants along with accused Genda Singh, Shanti and Chandrakala who have been acquitted by the trial court had committed murder of the deceased Veer Singh on 1.7.79 in village Raini under the jurisdiction of police station Syohara, district Bijnore and the appellants and their father Genda Singh are stated to have assaulted the deceased. The accused-appellant Vijay was armed with Barchi and Genda and Udai armed with knife were assaulting the deceased while Chandrakala, W/o Vijay and Shanti, W/o Genda Singh caught-hold of the deceased by pressing the deceased. As per FIR this incident was given effect to by the accused side because of quarrel which had taken place a day before this incident between the complainant side and accused side when one of the appellants Vijay had taken away rope without permission of the complainant side and did not return the same, on which the deceased had protested and gone there to the accused stating that why they were causing harm to his property, at which Bishan Kumar (Mama) of the deceased had mediated the matter which was settled but this quarrel ultimately gave rise to present incident.
59. From the side of learned counsel for the appellants, it was vehemently argued that according to the admission of the informant, father of Genda Singh namely Jhandu Singh had brought him to village Raini and had rehabilitated him. hence there could be no reason why the accused would murder the son of the informant. It was further argued that the motive which has been stated by the prosecution is so petty that it could not be treated to be the reason for causing murder of the informant's son because it is stated that accused Vijay, son of co-accused Genda Singh had taken away a rope without permission from the house of the deceased which was protested from the side of the informant's son and in the night the present incident happened. The motive is also suggested by the prosecution that the father of Genda Singh had brought up the informant in village Raini as the informant Layak Singh had lost his parents at an early age. Thereafter Genda Singh used to look after 150 bigha of land of Layak Singh and out of the income earned, he used to give him only some money and some time did not give anything therefore, the said land was taken back by the informant from Genda Singh and informant had started doing agriculture on his own and maintained a tractor as well which the accused did not like. Eleven bigha of land was still left to be taken from the accused, but nothing much was argued from the side of the appellants in this respect. It is the prosecution version that it was this enmity because of which this occurrence has happened. Now we have to see as to whether the prosecution has been able to prove its case beyond reasonable doubt against the accused appellants on the basis of evidence on record. Further, it would be pertinent to refer here the details of the site plan so that the statement of the prosecution's witnesses could be examined in the light of the site plan which would facilitate testing their veracity. The site-plan is as follows:-
By "A" has been shown the place where Layak Singh is shown to be sleeping on Cot.
By "B" is shown the place where Dulari wife of Layak Singh was sleeping on Cot.
By "C" is shown the place where the daughter of the informant Kusum Kumari was sleeping.
By "D" is shown the place where the Pappu and Guddi children of the informant were sleeping.
By "E" is shown Cot of deceased Veer Singh.
By "F" is shown the place wherein in kotha of Genda Singh the deceased Veer Singh was also stated to have assaulted and murdered and blood-stained and plain soil was collected from there also.
By "G" is shown the place from where informant, his son and witnesses have seen Veer Singh having been assaulted.
By "H" is shown the place where the witness Suresh was sleeping in his house and reached the place of incident.
By "I" is shown the place from where witness Raj Kumar came after hearing the noise to the place of occurrence.
By "J" is shown the passage from where accused fled away. Although it is difficult to read from the original site-plan but still it is being gathered from it that by "J" appears to have been shown the place from where the witness Raj Kumar and Suresh had entered the gher of Genda Singh and the informant.
By "K" is shown the place where the lantern was burning.
By "L" is shown the place where the lantern was burning in the kotha of Genda Singh.
The distance of A, B, C and D from the place is shown by E is mentioned meaning thereby the informant and his family members were sleeping about 12 paces away in-front of chappar. The distance of F is shown about 20 paces which would indicate that the place where the deceased was sleeping and from where he was stated to have been dragged by the accused persons towards their kotha. The distance of 'F' and 'G' is nine paces. This would indicate the distance from which the witnesses have seen the incident which was being committed inside the kotha. The width of that kotha is 5 paces and length is 4 paces. From 'E' to 'F' dots are shown by which it is indicated that on the entire place blood was found. From 'H', the house of informant is 25 paces and from 'I' house of the informant is shown 55 yards.
60. It is argued by learned counsel for the appellant that the sole basis of conviction of accused-appellants is that both the appellants had absconded and remained absconded for approximately eleven days which conduct was found to be suspicious one, on the basis of which the trial court has held them guilty. It was also argued that the circumstances that they had absconded for eleven days was never put to the accused u/s 313 Cr.P.C., hence said piece of evidence could not have relied upon by the trial court. We are convinced by argument of learned counsel for the accused-appellants to the extent that if the sole ground of conviction is that appellants remained absconded for eleven days, then it would be improper for the trial court to base their conviction on that. Unless that circumstance was put to the accused u/s 313 Cr.P.C. But if there were other eye-witnesses also pointing the guilt of the accused persons sufficient enough to prove them guilty, their conviction would not be faulted.
61. We have seen above in the statement of PW 1 who is sister of the deceased that 11 bighas of land was still left to be taken from the accused side because of which the accused Genda Singh had animosity towards the informant and nothing has been suggested in cross-examination in this regard therefore the testimony of this witness with respect to the above piece of land stil being in possession of the accused side is established and it has also come in evidence that to trigger dispute on the fateful night the incident of the rope having been taken away by the accused side had also happened which was protested and which was the immediate cause for the occurrence. It has also been stated by her that the rise of informant was not being liked by the accused side because they had started cultivation work on their own. We find that though PW 1 is real sister of the deceased but her restatement with respect to the motive as stated above seems to be believable and the same cannot be discarded only because she is real sister of the deceased. The Supreme Court has laid down in the case of Motiram Pandu Joshi and others vs State of Maharastra, (2018) 9 Supreme Court Cases 429 that relationship is not a ground affecting credibility of witness, however judicial approach has to be cautious in dealing with such evidence. Even evidence given by related witness should not be discarded only on the ground that such witness is related.
62. Now we would like to deal with the manner in which the occurrence has taken place and the testimony of eye-witnesses given in this regard and to see as to whether their testimonies are trustworthy or discardable.
63. It is apparent from the statement of PW 1 that initially the incident happened in front of Chappar shown by ''E' where in the light of lantern she had seen accused Vijay with barchi, Udai and Genda Singh with knives in their hands who were assaulting his brother (deceased) and apart from them accused Shanti and Chandrakala were pressing the deceased down when she was sleeping in courtyard with her parents, when she had woken up at the scream of the deceased and thereafter when all of them raised alarm witness Suresh, Rajkumar and Khemi also reached there. From there the accused had taken away the deceased towards their Kotha and when they tried to rescue him, they were threatened to be killed due to which they could not come forward to save the deceased from their clutches. The accused thereafter murdered the deceased in the said Kotha which is shown by ''F', which is the 2nd place of incident, where the deceased was found dead. She has stated to have seen this incident in the light of lantern which was hanging there both near the Chappar as well as Kotha and also in the light of the torches which the witnesses were having. A long cross-examination has been made of this witness but we find the testimony of this witness to be partly liable to the extent that the appellants with co-accused Genda Singh were involved in assaulting with above-mentioned weapons in an open place i.e. when he was sleeping in front of Chappar and thereafter he was dragged up to the Kotha which was situated little away from there, but it has come in evidence that cry was heard of the deceased when he was inside Kotha and thereafter it subsided and when she and other witnesses saw inside the Kotha, the deceased was found dead. Therefore it reveals that partly she was an eye-witness of the deceased being assaulted as is stated above and partly the case rests on circumstantial evidence that when the deceased had been taken inside the Kotha, where the deceased was crying and thereafter the said cry subsided and the accused fled away from there, which would indicate that it could be the accused only who had killed the deceased and no one else. Moreover the place where the dead body was found lying is Kotha of Genda Singh, therefore under section 106 of the Indian Evidence Act, the burden lay upon the defence to disclose how the deceased was found dead in their Kotha, which has not been discharged. The presence of this witness on the scene of occurrence is very natural because she was sleeping very close to the deceased and that even accused were also residing in one part of the said house in which this incident happened and it was night time. Although we find little exaggeration in the description as to how the deceased was taken to Kotha from the place where he was sleeping, but in judgment dated 28/08/2018 in Criminal Appeal No. 1198 of 2006 Menoka Mallik and others vs the State of West Bengal and others the Apex Court has held that it is settled position of law that the testimony of a witness cannot be discarded in toto merely due to the presence of embellishments or exaggerations. The doctrine of falsus in uno falsus in omnibus has been held inapplicable in Indian scenario, where the tendency to exaggerate is common. It is the duty of the court to separate the chaff from the grain. Moreover, minor variations in the evidence will not affect the root of the matter, inasmuch as minor variations need not be given major importance and they would not materially alter the evidence/credibility of the eye-witness as a whole.
64. The statement of P.W.1 has been corroborated by PW 3 who is mother of the deceased who was also sleeping by the side of the PW 1 and close to the deceased. She was also cross-examined at length but we do not find that her testimony suffers from any infirmity with respect to her having seen the occurrence which happened in front of the Chappar and thereafter she also has stated that the deceased was found dead when the accused had dragged him away to their Kotha and soon after the cry of deceased subsided and the accused fled from there, the deceased was found dead by her. Therefore her testimony is also found to be partly reliable despite several embellishments and exaggerations.
65. The informant Layak Singh (PW 6) has also clearly stated to have seen the appellants and the co-accused Genda Singh to have assaulted his son in front of Chappar where he was sleeping and thereafter he was dragged to the Kotha where he was found dead. In cross-examination of this witness nothing such could be elicited by the defence so as to render his testimony unbelievable in totality and we find that he was an eye-witness to the extent that he saw his son having been assaulted by the above accused despite the fact that he also exaggerated on several counts.
66. PW 4, Khem Singh, who is an independent eye-witness of the occurrence is also found by us to be partly believable because he has clearly stated that he had reached the place of incident after hearing the noise and saw in the light of torch that the accused were carrying the deceased towards their Kotha and that when he tried to rescue him, he was also threatened to be killed and subsequently the deceased was found dead in Kotha and the accused had fled from there. We find that though this witness has stated to have reached the place of incident in the night when the occurrence happened, but he being a neighbour who was residing not at a great distance, his testimony also is found to have corroborated the statements given by the other above-mentioned eye-witnesses supporting that he had seen the accused being dragging the deceased away to the Kotha, where the deceased was found dead when the accused had fled from there. His testimony would fall in the category of proving the circumstance of the deceased having been found dead in quota after having been dragged there by the accused persons.
67. We also find that the testimony of the above-mentioned eye-witnesses, though they are family members, does stand corroborated by the medical evidence because the doctor who conducted post-mortem of the deceased and has been examined as PW 2 had found as many as 9 injuries on the body of the deceased which included cut injuries as well as punctured wounds which could have been caused by the weapons which are stated to have been wielded by the appellants as well as co-accused Genda Singh. We also find that the statement of above mentioned witnesses are also in consonance with the site plan which has been made by the investigating officer, who has also clearly proved that a blood trail was found from the place where the deceased was sleeping in Chappar up to the place where he was found dead i.e. Kotha, which supports the version of the prosecution witnesses.
68. Next, we would like to deal with the most important argument made by the learned counsel for the appellants i.e. when the co-accused Genda Singh had been acquitted by the trial court, therefore on the same piece of evidence how the appellants could have been held guilty and punished and therefore it was prayed that the appellants also deserve to be acquitted. Further it was vehemently argued that the basis of convicting the appellants has mainly been that both of them had absconded for about 11 days and because of that conduct only they were found guilty, despite the fact that the said evidence was not put to them when their statement was being recorded under section 313 Cr. P.C., and therefore they could not been held guilty.
69. As regards the co-accused Genda Singh having been acquitted on the same evidence, on the basis of which the appellants have been held guilty, we are not inclined to accept the argument of learned counsel for the appellants. For this we would rely on the judgment of the Apex Court in the case of Gangadhar Bahera and others Vs. State of Orissa Cr. Appeal No.1282 of 2001 decided on Oct.10.2002. The paragraph no.15 is as follows:-
"To the same effect is the decision in State of Punjab v. Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana ( 2002 (3) SCC 76). Stress was laid by the accused-appellants on the non- acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Alli v. The State of Uttar Pradesh AIR 1957 SC 366.
Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurucharan Singh and Anr. v. State of Punjab AIR 1956 SC 460. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh 1972 3 SCC 751) and Ugar Ahir and Ors. v. The State of Bihar AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and Ors. v. The State of Punjab. (AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Ors. v. State of Bihar etc. (JT 2002 (4) SC 186). Accusations have been clearly established against accused-appellants in the case at hand. The Courts below have categorically indicated the distinguishing features in evidence so far as acquitted and convicted accused are concerned.
Thus it is apparent from above ruling that it is not necessary that if an accused has been acquitted on particular evidence, the other co-accused also deserve to be acquitted on the same evidence.
70. It is also made clear that the other two co-accused Shanti wife of Genda Singh and Chandra Kala wife of appellant Vijay have been acquitted by the trial court on the ground that when the accused were well armed and were assaulting the deceased, there was hardly any reason to take support of two ladies to catch hold of the deceased so that the deceased could be assaulted, and on that ground these two accused appear to have been acquitted.
71. Learned counsel for the appellants in support of his contention has relied upon the judgement of the Apex Court reported in 2015(2) SCC 513 Naushad @ Naura.
72. In this case appellants no.1, 2 and 3 along with 40 others armed with deadly weapons caused injuries with their weapons to the deceased resulting in his death and on the basis of the statements of nine prosecution witnesses, the trial court convicted the accused-appellant no.1 to 5 and accused-appellant no. 29 out of 44 accused persons. The High Court allowed the appeal preferred by the accused no.4, 5 and 29 and confirmed conviction of accused-appellant no.1 to 3 only. The trial court had made it clear that so called star witness P.W.11 and another were unreliable and unbelievable but used their statements for corroboration of prosecution version regarding appellants. In this case it will be wholly unsafe to rely on such evidence in order to confirm conviction imposed on appellant no.1 to 3, though the very version spoken to by such witness persuaded trial court to acquit all other accused, except accused appellant no.1 to 5 and accused-appellant no.29 and High Court to acquit accused-appellant no.4, 5 and 29 for the same very reasoning. Hence conviction of the appellant nos.1, 2 and 3 would not be sustained.
73. The facts of the present case are not akin to the facts of the above mentioned case and there is no denying the fact that in criminal case each case has it's own facts of which the application of law is required to be made. We do not find that said ruling would be of any help to the appellants in the present case.
74. Learned counsel for the appellants further relied on the judgement of the Apex Court in the case of Vadivelu Thevar Vs. State of Madras, 1957, SCR 1981.
75. In this case it has been laid down by the Apex Court that the court need not insist upon plurality of witnesses in the murder case. The court may convict if the evidence is wholly reliable and may acquit if it is wholly unreliable and may lack corroboration in material particulars of reliable testimony direct or circumstantial if it is neither wholly reliable nor unreliable we have no quarrel with this principle of law.
76. We would like to point out here that we do admit that according to the correct position of law if abscondance of the appellants was the only ground for the trial court to hold them guilty by distinguishing their case from the other co-accused Genda Singh, the said evidence ought to have been clearly put to the accused appellants at the time of recording their statements under sections 313 Cr. P.C., hence that not being done would certainly make the finding in this regard of the lower court to be questionable, but simultaneously we are of the view that even if that piece of evidence be excluded, we find that there is sufficient evidence both ocular, supported by medical evidence and the circumstantial evidence to hold the appellants guilty and in our opinion even Genda Singh ought to have been held guilty, but his acquittal by the trial court would not confer benefit upon the other co-accused to be acquitted in terms of the law laid down in Gangadhar Bahera case (supra). The finding with regard to the co-accused Genda Singh is not found to be in accordance with law but the acquittal of Genda Singh has not been challenged before us. As regards other co-accused Shanti and Chandrakala, we do not find any infirmity in the finding of the trial court.
77. We would also like to take into consideration the defence evidence extended on behalf of the accused appellants so as to take plea of alibi. In this regard, the defence version was that accused Genda Singh had, on the date of incident at about 4 PM gone to the hospital for the treatment of his daughter in law, Chandrakala along with his wife Shanti, also along with appellants and had stayed in the Government hospital Syohara in the night and returned in the morning, then they came to know that Veer Singh had been murdered, whereafter they went to the police station at about 9 AM, where they were detained and the condition of Shanti deteriorated due to which Doctor was called. Doctor after coming to the Police Station had given her medicine and the next day the police challaned them. To prove the defence version, Bhoj Singh DW 1, constable clerk at PS Kotwali City, Bijnor has proved remand sheet, Exhibit Kha - 1. Dr. AP Gupta, Medical Officer, Incharge PHC, Syohara has been examined as DW 2 who stated that on 30/06/1979, he was posted at the said PHC and had examined Chandrakala as outdoor patient and had made an entry in register. She suffered from fits and pain chest and has proved certificate in his handwriting, Exhibit Kha - 2 but in the cross examination he did not recollect when the said certificate was issued. Either the patient or his attendant had moved an application that a certificate in that behalf should be issued, and after having taken the same, the patient had gone though he had not given any treatment to the patient. He also did not recollect whether any medical practitioner had referred her case. The entry of the patient was recorded at 5:30 PM, which was written by different ink, which was closing time of the hospital. Three - four persons were accompanying the patient and there was no thumb impression on Exhibit Kha 2 nor was there mentioned the name of husband or father of Chandrakala. The said statement clearly reflects that the patient, if it be taken to be true, who was taken to the hospital, was not found to suffer from any serious ailment as she was treated as an outdoor patient and was not admitted, therefore it could not be believed that she would have been admitted and remained in the night there only, which belies the defence version of accused persons staying in the hospital in the night of incident. DW 3 is record keeper, Police Office, Bijnor who had brought general diary of July 1979 of PS Syohara according to which Genda Singh, Shanti and Chandrakala were sent to jail in crime no. 126 under sections 147, 148, 149, 302 IPC as per report no. 16 at 8 AM and the GD was proved as Exhibit Kha - 3. He appears to be a formal witness only. Ashok Kumar Goel, Medical Officer has been examined as DW 4 who has stated that the medical certificate of Doctor Nripendra dated 25/05/1981 was issued by him who was suffering from fever. He has no prescription of medicine on record as the same might be with the patient. The statement of this witness also does not help the case of defence because the Doctor who actually had prepared certificate has not been examined nor does this witness prove that the patient was under treatment in the night of the incident. Later on Dr. N K Verma who was examined as DW 6, has stated that he knew accused Vijay since before, who was not present in court. About 2 years ago at about 11 - 12 a.m. SO, Vijay Pal Singh had telephoned him, in response to which he had gone to PS Syohara, where Genda Singh, his wife and one more lady who had covered her face, were present. Shanti Devi, who had fainted, was given medicine by him. He had asked Genda Singh as to how his wife had fainted, and then he told that she had become nervous. He has stated in cross-examination that he knew Genda Singh from before as he was their family doctor because of which he made no entry in the register. He is a practising doctor for last 20 - 21 years. The said statement does not come to the help of the appellants because it could not be concluded from it that appellants were not present in their house on the date of incident. Therefore from these witnesses it could not be concluded that all the accused including the appellants were away from the place of incident in respect of treatment of Chandrakala on the date of incident.
78. It is pertinent to mention here that the informant Layak Singh has filed Criminal Revision No.1426 of 1981 against the acquittal of co-accused Genda Singh, Smt. Shanti Devi and Smt. Chandrakala @ Munni which is pending before this Court. However, an statement has been made at Bar that the informant Layak Singh as well as co-accused Genda Singh and Smt. Shanti Devi have also expired and with respect to their death, report has been summoned by the Court and as soon as the same is received, the said revision would be disposed of by this Court separately.
79. Therefore, from above analysis, we are convinced that this is a case in which prompt FIR has been lodged and the eye-witnesses of incident named above have actually seen the appellants along with co-accused Genda Singh assaulting the deceased by the weapons mentioned above and the injuries received by the deceased are also corroborated by the post-mortem report of the deceased. The testimonies of the three above mentioned eye-witnesses are found partly believable regarding their having seen the deceased being assaulted by the appellants as well as Genda Singh and thereafter the circumstantial evidence to the effect that the accused had dragged the deceased in their Kotha, where he was murdered and thereafter the accused fled from there, and after the accused had fled, the witnesses entered the room and found the deceased in dead condition. It is also noteworthy that the Kotha in which the dead body of the deceased was found belonged to the co-accused Genda Singh, although the defence version was that the said house belonged to sister of Genda Singh, but the investigating officer had stated that the same belonged to Genda Singh. In view of this the burden also stood shifted to the accused to prove as to how the deceased was found dead in Kotha belonging to them which could not be discharged by them. Therefore, in view of foregoing discussion we are of the view that the trial court has rightly convicted the accused appellants for the offences mentioned above and the appeal deserves to be dismissed and is accordingly dismissed.
80. The appellants are on bail. They may be taken into custody forthwith and sent to jail to serve out the sentence imposed on them by the trial court.
81. Let a copy of this judgment be transmitted to the trial court forthwith along with lower court record for necessary compliance.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Order Date :- 21.02.2019
Gaurav